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HomeMy WebLinkAboutE-5 Staff Report - Approval of Temporary License Agreement 275 W. Paramount StreetCONSENT ITEM E-5 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MANNY ROBLEDO, DIRECTOR OF UTILITIES DATE: DECEMBER 13, 2021 SUBJECT: APPROVAL OF TEMPORARY LICENSE AGREEMENT BETWEEN AZUSA AND ATHENS SERVICES FOR USE OF CITY PROPERTY AT 275 W. PARAMOUNT STREET BACKGROUND: Pursuant to the changes in trash collection and recycling service in the City of Azusa (City) in order to comply with State law SB 1383, Arakelian Enterprises, Inc. dba Athens Services (Franchised Hauler) will be distributing refuse collection carts for implementation of automated refuse collection beginning January 2022. The site will be used for staging, storage, and distribution of refuse collection carts, which will reduce traffic in the City. The City has a vacant property at 275 W. Paramount Street suitable for this purpose. The recommended action would approve a temporary license agreement between the City and Athens Services for limited use of said property. RECOMMENDATION: Staff recommends the City Council take the following actions: 1)Approve a temporary license agreement between the City of Azusa (City) and Arakelian Enterprises, Inc. dba Athens Services (Franchised Hauler) for the staging, storage, and distribution of refuse collection carts for implementation of automated refuse collection pursuant to refuse and recycling franchise agreement; and 2)Authorize the City Manager to execute the Temporary License Agreement, in a form acceptable to the City Attorney, on behalf of the City. APPROVED CITY COUNCIL 12/13/2021 Approval of Temporary License Agreement for 275 W. Paramount Street December 13, 2021 Page 2 ANALYSIS: As part of the City of Azusa’s transition from manual refuse collection to automated collection in order to comply with State law SB 1383, Athens Services is scheduled to distribute carts to customers within the Azusa boundaries beginning January 2022 and will require adequate space for staging, storage and distribution of refuse collection carts. Azusa owns a vacant property located at 275 W. Paramount Street which is suitable for this purpose. This is the same property used for staging during the deployment of Azusa Light & Water Automated Meter Infrastructure (AMI) project in previous year. The use of Azusa property will expedite the implementation of organics recycling in compliance with Azusa’s requirements and deadlines under State law, which will avoid penalties up to $10,000 per day for non-compliance, and reduce the amount of traffic created from the implementation by delivering carts from a central location instead of longer trips from an external location, which are both desirable benefits to Azusa. The property may be used up to April 15, 2022, and it may be terminated earlier or extended, if needed, according to the agreement. Athens Services will be responsible for obtaining the necessary insurance, and any and all expenses incurred during the agreement. Athens Services will remove all equipment and property within twenty-four hours of termination of the agreement. FISCAL IMPACT: There is no fiscal impact to the City associated in Athens Services’ temporary use of this property. Prepared: Reviewed and Approved: Liza Sagun Manny Robledo Environmental Programs Specialist Director of Utilities Reviewed and Approved: Reviewed and Approved: Marco Martinez Sergio Gonzalez Best Best & Krieger LLP City Manager Attachment: 1) Temporary License Agreement 1 LICENSE AGREEMENT This License Agreement ("Agreement") is entered into on December 13, 2021 ("Effective Date") by and between the City of Azusa, a public body, corporate and politic ("Azusa"), and Arakelian Enterprises, Inc., a California corporation (“Licensee"). Azusa and Licensee are sometimes referred to herein individually as "Party" and collectively as "Parties." Recitals A.Azusa owns that certain real property generally located at 275 W. Paramount Street, Azusa, California, as further described by the Los Angeles County Assessor as Parcel Numbers 8614-012-902 and 8614-012-903 and shown in Exhibit “A” (the "Property"); and B.Licensee desires to obtain a temporary license for the limited purposes of entering and using the Property for the staging, storage, and distribution of refuse collection carts for implementation of automated refuse collection pursuant to the refuse and recycling franchise agreement between the Parties; and C.The use of the Property by Licensee as described above will i) expedite the implementation of organics recycling in compliance with Azusa’s requirements and deadlines under State law, which will avoid penalties up to $10,000 per day for non-compliance, and ii)reduce the amount of traffic created from the implementation by delivering carts from a central location instead of longer trips from an external location, which are both desirable benefits to Azusa. NOW, THEREFORE, in consideration for the promises set forth in this Agreement, the Parties agree as follows: Terms 1.Recitals. The Recitals are incorporated into and are made a part of this Agreement. 2.License. Azusa hereby grants to Licensee, and Licensee’s employees, agent, representatives, and contractors a revocable, exclusive, nontransferable License to access the Property for the limited purpose of allowing Licensee to stage, store, and distribute refuse collection carts for the implementation of automated refuse collection within the Azusa boundaries (the "License"). Licensee shall not use the Property for any other purposes whatsoever, except as authorized by subsequent written agreement signed by Azusa. The Parties hereby acknowledge and agree that use of the Property by Licensee, as set forth in this Agreement, is with the consent of Azusa 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 Azusa 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. 3.Stage, Storage, and Distribution of Refuse Collection Carts. Licensee shall access the Attachment 1 2 Property for the sole use of staging, storing, and distributing refuse collection carts to customers within the Azusa boundaries. 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 and approval of the Azusa City Council. The Licensee shall ensure compliance with all terms of the executed agreements. 4. Term. The term of this License shall commence on the Effective Date and shall, unless otherwise modified, continue until the earlier of: (a) April 15, 2022; (b) the date on which staging, storage, and distribution of the refuse collection carts is complete; or (c) the date on which Azusa revokes and terminates this Agreement upon 7-days advanced written to Licensee with or without cause. 5. 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, Azusa will have the right to remove such equipment or property and Licensee agrees to be responsible for all associated costs of such removal and storage, if any. 6. Compliance with Law. 6.1 Federal, State, and Local Laws. Licensee shall conduct its activities related to the License in compliance with all Federal, State and local laws. 6.2 Prevailing Wages. (a) LICENSEE ACKNOWLEDGES THAT AZUSA 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 PREYAILING 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 AZUSA 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 PREYAILING 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 AZUSA 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 RELATIVE TO THE WA IVER AND RELEASE CONTAINED IN THIS SECTION 5.2, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS 3 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 AZUSA, PURSUANT TO SECTION 9, AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE LICENSE. 7. 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, stored or brought onto the Property by Licensee. 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. 8. Insurance. Licensee, at its sole cost and expense, shall obtain and maintain in full force and effect, throughout the term of this Agreement, insurance in amounts and coverages shown below, including, without limitation, a provision that Azusa, and its officers, directors, and employees, be included as additional insureds. Failure by Licensee to maintain all insurance in effect at all times shall constitute a default under this Agreement. 1. Worker's Compensation - Statutory; Employers’ liability - $100,000 each occurrence; 2. Comprehensive General liability (including Contractual Liability) -$5.000,000 each occurrence combined single limit; and 3. Comprehensive Automobile liability - $5,000,000 each occurrence combined 4 single limit. 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 Azusa to compensate Licensee, to convey any sort of property interest to Licensee, or enter into or retain any agreement with Licensee. 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, and Licensee shall indemnify, defend, and hold Azusa, its officials, officers, employees, agents, and volunteers free and harmless from any claims based upon any work performed pursuant to this License. 11. No Third Party Rights. This Agreement is entered into between and solely for the benefit of Azusa 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: Azusa: 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: Athens Services 14048 Valley Blvd City of Industry, CA 91716 Attention: Elizabeth Ramirez 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 Azusa, which may grant or withhold consent in its sole 5 discretion. 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. 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. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above. LICENSEE: AZUSA: ATHENS SERVICES CITY OF AZUSA, a public body, corporate and politic By: By: Sergio Gonzalez City Manager Attest: By: By: Jeffery Lawrence Conejo, Jr. City Clerk Approved as to form: By: Best Best & Krieger LLP City Attorney 6 EXHIBIT “A” PROPERTY ASSESSOR PARCEL MAP