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HomeMy WebLinkAboutF-02 Staff Report - Temporary Construction Entry License Agreement EfparSUCCESSOR AGENCY ITEM F-2 TO: SUCCESSOR AGENCY TO THE CITY OF AZUSA REDEVELOPMENT AGENCY VIA: SERGIO GONZALEZ, CITY MANAGER FROM: KURT CHRISTIANSEN, FAICP, DIRECTOR OF COMMUNITY AND ECONOMIC DEVELOPMENT DATE: JUNE 18, 2018 SUBJECT: CONSIDERATION OF A TEMPORARY CONSTRUCTION ENTRY LICENSE AGREEMENT BETWEEN THE SUCCESSOR AGENCY TO THE CITY OF AZUSA REDEVELOPMENT AGENCY AND EFPAR DEVELOPMENT, LLC. TO ACCESS CERTAIN SUCCESSOR AGENCY OWNED REAL PROPERTY LOCATED AT 975 W. FOOTHILL BLVD FOR THE LIMITED PURPOSE OF DEMOLISHING EXISTING STRUCTURES ON THE PROPERTY AND TO CONDUCT ASBESTOS REMOVAL. BACKGROUND: Efpar Development LLC. (“Developer”) is currently under contract to acquire 975 W. Foothill Blvd (“Property”) and construct certain private, commercial improvements. Developer would like to, at Developer’s own risk, commence the site clean-up by removing the existing structure and asbestos located on site. If approved, this agreement will give Developer access to the Property for this initial site clean-up work. RECOMMENDATION(S): It is recommended that the Successor Agency take the following action(s): 1.Approve the attached agreement, in substantially final form, providing Developer temporary access to the Property, authorize the City Manager to execute the agreement and directing the City Manager to take all actions necessary to implement the intent of the agreement. ANALYSIS: The Successor Agency and Developer entered into a Purchase and Sale Agreement (dated September 25, 2017) for the sale of the Property to Developer. The Agency and Developer are currently in escrow for the purchase and sale of the Property from Agency to Developer and, prior to the transfer of the APPROVED CITY COUNCIL 6/18/2018 Property, Developer desires to obtain a temporary license for the limited purposes of entering the Property to demolish existing structures on the Property and to conduct asbestos removal on the Property, in order to prepare the Property for Project. The Agency desires to accommodate Licensee’s request on the terms and conditions set forth in the Agreement so as to facilitate the eventual disposition and development of the Property. Pursuant to the License Agreement, Developer will have temporary site control to facility the demolition of the existing structure and removal of asbestos on site. Pursuant to the License Agreement, Developer will indemnify and protect the Successor Agency from any liability associated with the activity on the Property. ENVIRONMENTAL REVIEW In accordance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.: “CEQA”) and the State CEQA Guidelines (14 Cal. Code Regs., § 15000 et seq.), the City Council certified the final Azusa General Plan Environmental Impact Report and adopted findings pursuant to CEQA, which analyzed the potential impacts of this parcel’s use for commercial purposes. While the project site is currently vacant, no change in General Plan or Zoning Code land use designation is proposed or anticipated. While future development of the site is likely to require a Conditional Use Permit, the details associated with that permit application are currently unknown. However, prior to any issuance of a Conditional Use Permit, compliance with CEQA would be required. No further environmental review is required for the City to adopt this Resolution. FISCAL IMPACT: There is not fiscal impact associated with this agreement. Prepared by: Reviewed and Approved: Kurt E. Christiansen, FAICP Sergio Gonzalez Economic and Community Development Director City Manager Attachment: 1) License Agreement 45635.01851\31151003.3 1 LICENSE AGREEMENT This License Agreement (“Agreement”) is entered into on June, , 2018 (“Effective Date”) by and between the SUCCESSOR AGENCY TO THE CITY OF AZUSA, a public body, corporate and politic (“Agency”), and EFPAR DEVELOPMENT, LLC, a California limited liability company (“Licensee”). Agency and Licensee are sometimes referred to herein individually as “Party” and collectively as “Parties.” Recitals A.The Agency owns that certain real property generally located at 975 W. Foothill Blvd, Azusa, California (APN 8605-019-906 and 907) (the “Property”); and B.The Parties entered into a Purchase and Sale Agreement (dated]) for the sale of the property to Licensee, while Licensee also entered into an Agreement Affecting Real Property with the City of Azusa (dated September 25, 2017) for Licensee to construct and develop the Property for certain private, commercial improvements (the “Project”); and C.The Agency and Licensee are currently in escrow for the purchase and sale of the Property from Agency to Licensee and, prior to the transfer of the Property, Licensee desires to obtain a temporary license for the limited purposes of entering the Property to demolish existing structures on the Property and to conduct asbestos removal on the Property, in order to prepare the Property for Project; and D.Agency desires to accommodate Licensee’s request on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration for the promises set forth in this Agreement, the Parties agree as follows: Terms 1.License. Agency hereby grants to Licensee a revocable, exclusive, nontransferable License to access the Property for the limited purpose of allowing Licensee to demolish existing structures and other improvements located on the Property and to conduct asbestos removal on the Property (the “License”). Licensee shall not use the Property for any other purposes whatsoever, except as authorized by subsequent written agreement signed by Agency. The Parties hereby acknowledge and agree that use of the Property by Licensee, as set forth in this Agreement, is with the consent of Agency and shall be considered permissive. Nothing in this Agreement shall be interpreted as, or otherwise deemed to be, a transfer or conveyance of any interest in the Property whatsoever between Agency and Licensee. The Parties hereby acknowledge and agree that nothing in the Agreement shall be interpreted as an agreement for the lease or other use of the Property by Licensee. 2.Demolition Work and Asbestos Removal. Licensee shall within fifteen (15) days of the Effective Date of this Agreement apply for all necessary permits to commence the demolition and removal of all structures on the Property. Licensee shall have sixty (60) days from the date all necessary permits have been issued by the appropriate governmental agency to complete all Attachment 1 45635.01851\31151003.3 2 demolition activities and the removal of all debris from the Property. Licensee shall properly dispose of all material removed from the Property, including the removal of asbestos, which must be conducted in accordance with all Federal, State and local laws related to disposal of hazardous materials, and more specifically, to asbestos. The Azusa City Manager may extend the timeframes set forth herein by thirty (30) days upon request of the Licensee. Any additional extensions of time will be subject to consideration by the Successor Agency Board approval. The Licensee shall ensure compliance with all terms of the executed agreements described within Recital B (Purchase and Sale Agreement and Agreement Affecting Real Property with the City of Azusa), herein contained. 3. Term. The term of this License shall commence on the Effective Date and shall, unless otherwise modified, continue until the earlier of: (a) the date on which demolition of the existing structures and other improvements, including asbestos removal, is complete; (b) the close of escrow pursuant to the Purchase and Sale Agreement; (c) the termination or material breach by Licensee of the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa and the terms therein contained; or (d) if, at any time, Licensee fails or refuses to comply with or carry out any of the terms herein contained, after receiving a ten day written notice of such failure and a cure is not made within said ten day period, Agency may revoke and terminate this Agreement. 4. Removal of Property upon Termination. Licensee agrees to remove all of Licensee’s equipment and property and any and all debris from the Property within twenty-four (24) hours of termination of this Agreement. In the event any equipment or property are not timely removed, Agency will have the right to remove such equipment or property and Licensee agrees to be responsible for all associated costs of such removal. 5. Compliance with Law. 5.1 Federal, State and Local Laws. Licensee shall conduct its activities related to the License in compliance with all Federal, State and local laws. 5.2 Prevailing Wages. (a) LICENSEE ACKNOWLEDGES THAT AGENCY HAS MADE NO REPRESENTATION, EXPRESS OR IMPLIED, TO LICENSEE OR ANY PERSON ASSOCIATED WITH LICENSEE REGARDING WHETHER OR NOT LABORERS EMPLOYED RELATIVE TO THE LICENSE MUST BE PAID THE PREVAILING PER DIEM WAGE RATE FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE OF CALIFORNIA, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. LICENSEE AGREES WITH AGENCY THAT LICENSEE SHALL ASSUME THE RESPONSIBILITY AND BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT LABORERS EMPLOYED RELATIVE TO THE LICENSE MUST BE PAID THE PREVAILING PER DIEM WAGE RATE FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE OF CALIFORNIA, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. (b) LICENSEE, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES AND RELEASES AGENCY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781. LICENSEE ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 45635.01851\31151003.3 3 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.2, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. BY INITIALING BELOW, LICENSEE KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.2: _________________ Licensee’s Initials (c) ADDITIONALLY, LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS AGENCY, PURSUANT TO SECTION 8, AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE LICENSE. 5.3 Permits. Before the commencement of any of the work authorized by this Agreement, Licensee shall secure any and all governmental permits which may be required. Agency does not make any representation that it will issue or otherwise assist in the issuance of any such permit. Agency shall have no obligation or liability to verify whether Licensee has obtained all necessary permits and approvals. 6. Hazardous Materials. Licensee shall not under any circumstances store or bring onto the Property any Hazardous Materials, and shall be solely responsible for the removal of any Hazardous Material, including asbestos, pursuant to this Agreement. As used in this Agreement, the term “Hazardous Material” means any substance, material or waste which is (1) defined as a “hazardous waste,” “hazardous material,” hazardous substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317); (7) defined as a “hazardous substance: pursuant to the Resource Conversation and Recover Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. §6903) or its implementing regulations; (8) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C. §9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property. 7. Insurance. Licensee, at its sole cost and expense, shall obtain and maintain in full force and effect insurance in the amounts and coverage set forth in either the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa described within Recital B, herein contained, including, without limitation, any requirements that the Agency be 45635.01851\31151003.3 4 named an additional insured. Failure by Licensee to maintain all insurance required by either the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa in effect at all times shall constitute a default under this Agreement. 8. Indemnification. Licensee shall indemnify, defend, and hold Agency, its officials, officers, employees, agents and volunteers and free and harmless in accordance with the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa described within Recital B, herein. 9. Sole Cost and Expense. Licensee expressly acknowledges that it is entering into this Agreement and performing the work authorized hereunder at its own risk. Licensee acknowledges that any work Licensee chooses to perform in connection with this Agreement shall be at its sole cost and expense. Licensee further acknowledges that any activity or work or act by Licensee made in connection with this Agreement will not impose any obligation upon Agency to compensate Licensee, to convey any sort of property interest to Licensee, or enter into or retain any agreement with Licensee, including, without limitation, the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa described within Recital B, herein contained. 10. Payment of Costs. Licensee shall be solely responsible for all costs and expenses of all activities contemplated by this Agreement. Licensee shall assure that its activities do not result in the filing or attempted enforcement of any claims or liens against the Property. 11. No Third Party Rights. This Agreement is entered into between and solely for the benefit of Agency and Licensee. No other person shall have any right to enforce the terms of this Agreement. 12. Notices. Any notice to be given or other document to be delivered by either party to the other hereunder shall be in writing and shall be deemed to have been duly given and received as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth below: Agency: Successor Agency to the City of Azusa 213 E. Foothill Blvd Azusa, CA 91702 Attention: City Manager With a copy to: Best Best & Krieger, LLP 18101 Von Karman Ave, Suite 1000 Irvine, CA 92612 Attention: Marco Martinez, Esq. Licensee: Efpar Development, LLC 8913 W. Olympic Blvd, Suite 101 Beverly Hills, CA 90211 Attention: Keith Parry With a copy to: Adelman Law Advisors 15303 Venturea Blvd., Suite 1400 Sherman Oaks, CA 91403-6610 45635.01851\31151003.3 5 Atten: Jeffry S. Adelman, Esq. Any party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 13. Assignment. This License is personal to Licensee and may not be assigned without the prior written consent of the Agency, which may grant or withhold consent in its sole discretion. The foregoing is not intended to limit or prevent Licensee from allowing contractors, agents, or employees to perform the Demolition Work and Asbestos Removal. 14. Attorneys’ Fees. If a Party commences an action against the other Party arising out of or in connection with this Agreement, the prevailing Party in such action shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and costs. 15. Governing Law. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California. 16. Entire Agreement; Severability. Notwithstanding any references in this Agreement to the Purchase and Sale Agreement or Agreement Affecting Real Property with the City of Azusa described within Recital B, herein contained, this Agreement contains the sole and complete agreement between the parties relating to the License. This Agreement may not be changed orally and may be amended only by an agreement in writing signed by both parties. In the event that any provision of this Agreement shall be held to be or become invalid or unenforceable in certain circumstances, the validity and enforceability of the remaining provisions, or such provision in other circumstances, shall not in any way be affected or impaired. [Signatures on following page] 45635.01851\31151003.3 6 SIGNATURE PAGE TO LICENSE AGREEMENT IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above. LICENSEE: EFPAR DEVELOPMENT, LLC, a California limited liability company By: By: AGENCY: SUCCESSOR AGENCY TO THE CITY OF AZUSA, a public body, corporate and politic By: Azusa City Manager Attest: By: Azusa City Clerk Approved as to form: Best Best & Krieger LLP By: Azusa City Attorney