HomeMy WebLinkAboutContract 1715 C -i1
ACCESS AND CONSTRUCTION LICENSE AGREEMENT
THIS ACCESS AND CONSTRUCTION LICENSE AGREEMENT (the
"Agreement") is made and entered into as of September 13, 2017 ("Effective Date"), by and
between THE CITY OF CATHEDRAL CITY, a municipal corporation ("City" or
"Licensor"), and CITY URBAN REVITALIZATION CORPORATION, a California non-
profit public benefit corporation ("CURC" or"Licensee").
RECITALS
A. City and CURC entered into that certain Lease-Back Agreement dated December
15, 2016 (the "Lease-Back Agreement").
B. City is the owner of that certain real property located at 68752 Buddy Rogers
Drive, Cathedral City, California, more particularly described as Assessor Parcel Numbers 687-
181-009 and 687-181-011 (the "Property").
C. As part of the transaction agreed to by City and CURC under the Lease-Back
Agreement, City and CURC agreed that CURC would, at its sole cost and expense, design,
develop and construct a replacement fire station (the "Replacement Facility") on the Property.
D. CURC will enter into a construction agreement (the "Construction Agreement")
that will govern the terms and conditions of the development of the Property and the construction
of the Replacement Facility and all related improvements and facilities on the Property
(collectively, the "Work").
E. In order to facilitate the development of the Property, and the construction and
completion of the Work, City desires to grant to CURC and its agents, consultants, engineers,
surveyors, representatives, employees, contractors and architects, and each of their respective
officers, directors, agents, employees, representatives, and designees (collectively, the "Licensee
Parties") a non-exclusive, temporary license (the "License") to enter upon the Property to
undertake certain investigations and tests, and certain development and construction activities, at
CURC's direction and sole cost and expense, including without limitation, the following: (i)
inspections and tests CURC deems appropriate in connection with the Work, including surveys,
engineering inspections, test borings, soil tests, percolation tests, site evaluations and such other
evaluations, inspections and tests as CURC reasonably desires; (ii) tests to determine the
presence or absence of hazardous wastes, asbestos, radon and other similar materials and
substances; (iii) inspections to determine compliance of the Property with all applicable laws,
rules, codes and regulations; and (iv) certain grading, landscaping, and improvements that may
be required or reasonably necessary for the Work, including without limitation, (a) grading and
excavation, (b) export, import, balancing and stockpiling of soils, (c) staging and/or storage of
construction equipment, trailers, supplies and materials, (d) posting of signs, (e) construction and
installation of temporary and permanent curb, gutter and streets and related improvements, (f)
construction of installation of temporary and permanent wet and dry utilities and related
facilities (above and below ground), and (g) all other aspects of the construction of the
Replacement Facility itself and all related improvements and facilities, all subject to the terms
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and conditions of this Agreement. Notwithstanding the foregoing, CURC shall not conduct any
intrusive or destructive tests on the Property without City's prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned.
F. CURC and Griffin Structures, Inc. ("Property Manager") have entered into that
certain "Agreement for Project and Construction Management and Related Owner
Representation Services" ("PM Agreement") by which CURC retained the Project Manager to
manage the design, construction and other aspects of the Work, as more specifically set forth in
the PM Agreement. Among other things, the Project Manager will assist CURC in preparing the
Construction Agreement. The Project Manager will also oversee the activities of the "Project
Team" (as defined in the PM Agreement). The Project Team will include representatives of the
Project Manager, CURC, the City, the Architect, and the Replacement Facility contractor, among
others.
G. City desires to grant, and CURC desires to accept, a non-exclusive, temporary
license to CURC to enter upon the Property for the purposes set forth in Recital E (and other
related activities incidental thereto).
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, the Lease-Back Agreement and the Construction Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Grant of License. From and after the date hereof and continuing until CURC has
completed the Work and all related and applicable work and activities hereunder and a
Certificate of Occupancy has been issued by the City, CURC and the Licensee Parties shall have
the non-exclusive right and license to enter upon the Property for the purposes set forth in
Recital E (and other related activities incidental thereto); provided that in conducting all such
activities, CURC obtains and maintains the insurance requirements set forth in Section 3, and
otherwise complies with all terms and conditions under this Agreement. All costs and expenses
of the Work and the activities described in Recital E shall be borne solely by CURC.
2. Limitations on CURC's Exercise of License Rights. In connection with any
exercise of rights under this Agreement by CURC, the following shall apply:
(a) Use of Property and Operating Rules and Regulations. During such times as
CURC is exercising its License rights under this Agreement, it shall keep all portions of the
Property neat and clean and free of construction debris. At all times during performance of the
Work and other work and activities permitted hereunder, CURC shall comply with all operating
rules and regulations, if any, reasonably established by City.
(b) Compliance with Laws. CURC shall comply in all respects with all federal, state
and local statutes, ordinances, rules and regulations of all governmental agencies and authorities
(collectively, "Laws") relating to its operations and exercise of rights under this Agreement and
the performance of the Work. All contractors and subcontractors employed or contracted with by
CURC shall be properly licensed and approved in writing or in advance by City. All work
performed by or for CURC shall be performed (i) in accordance with the Approved Plans
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(defined below); (ii) lien-free and in a good and workmanlike manner, using prime materials (but
not of lesser quality than currently exists); and (iii) in compliance with all Laws.
(c) Notice and Approval of Plans. Neither CURC nor any of the Licensee Parties
shall perform any Work or any other work or activities permitted hereunder on the Property
unless and until (i) City shall have approved in writing CURC's detailed plans, specifications,
and working drawings for such Work and/or activities, (upon City's approval or deemed
approval, the "Approved Plans"), and all contractors who shall perform such Work and other
work and activities shall be duly licensed and approved by City, which approval shall not be
unreasonably withheld, delayed or conditioned; (ii) CURC shall have obtained all required
governmental approvals and permits for the Work and other work and activities reflected on the
Approved Plans; and (iii) copies of all required governmental approvals and permits shall have
been delivered to City, along with evidence of all required insurance from CURC and all
contractors and subcontractors who shall be accessing the Property. Notwithstanding the
foregoing, City's approval rights set forth herein are for City's benefit only, and no such
approval shall be deemed to an endorsement of CURC's plans in any manner.
(d) Lien Free. CURC shall keep the Property free and clear of all encumbrances,
mechanics' liens, stop notices, demands and claims arising from the Work and all other work or
activities on the Property done by or for CURC, the Licensee Parties, or for persons claiming
though or under CURC and/or the Licensee Parties, and CURC shall indemnify and save City,
and all of its elected and appointed officers, officials, employees, agents, consultants and
contractors free and harmless from and against any claims arising from or relating to the same.
If CURC fails to remove or satisfy any such encumbrance, mechanics' lien, stop notice or claim
in connection with the foregoing within ten (10) business days after receiving written notice by
City, City shall have the right (but not the obligation), in addition to any other rights or remedies
of City, to use whatever means in its discretion it may deem appropriate to cause said
encumbrance, claim, stop notice, or lien to be rescinded, discharged, compromised, dismissed or
removed, including, without limitation, posting a bond. Any such sums paid by City, including
attorneys' fees and bond premiums, shall be immediately due and payable to City by CURC.
CURC shall immediately give City notice of any encumbrance, claim, demand, stop notice or
lien made or filed against the Property and/or any action affecting title to the Property. City shall
have the right to post and keep posted at the Property notices of non-responsibility or other
notices that City may deem to be proper for the protection of City's interest in the Property.
(e) Limitations on Disturbance. CURC, when exercising the License rights granted
hereunder, shall: (i) do the Work and all other work and activities permitted hereunder promptly
and(ii) except as otherwise expressly provided in the approved Plans; (iii) except for changes
expressly shown on the Approved Plans, fully restore any affected sidewalks, pavement,
landscaping and similar improvements, and the surface of the land and the surrounding
vegetation, to their original condition (to the extent practicable) as soon as possible upon
completion of the Work and all other work and activities on the Property permitted hereunder;
and (iv) except as provided in the Approved Plans, not install any utility facility or equipment on
the Property.
(f) City Review of Construction Agreement. Prior to entering into the Construction
Agreement, CURC will provide a copy of the Construction Agreement to City for its review and
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approval, which approval shall not be unreasonably withheld, delayed or conditioned and , which
City must provide within ten (10) days following its receipt of the Construction Agreement, .
CURC will name City as an intended third party beneficiary of CURC's rights and remedies, but
not its obligations, under the Construction Agreement.
(g) Completion. Upon substantial completion of any phase of the Work on the
Property, City and CURC shall perform a walk-through inspection of the Property to create a
punch-list of any corrective work, which corrective work shall be performed by CURC, at
CURC's sole cost and expense within thirty (30) days after the walk-through.
(h) Damage or Destruction. Any damage resulting from the exercise of the License
rights under this Agreement shall be promptly repaired and the Property shall be restored by
CURC, at CURC's sole cost and expense. Any such damage not repaired within thirty (30) days
after written notice from City may be repaired by City, and CURC shall reimburse City for such
costs within ten (10) days after CURC's receipt of City's demand.
3. Insurance.
(a) CURC shall obtain and maintain, through Public Entity Risk Management
Authority("PERMA") or otherwise, and shall cause all of the Licensee Parties (with the
exception of CURC's employees) to obtain and maintain in full force and effect during the term
of this Agreement (i) a commercial general liability insurance policy, including blanket
contractual and completed operations coverage, written on an "occurrence" basis, with a
combined single limit of$2,000,000 per occurrence of bodily injury, including death, and
property damage, and an annual aggregate of$5,000,000; (ii) Automobile liability insurance
with a limit of$2,000,000 combined single limit per accident for bodily injury and property
damage; and(iii) Workers' compensation with a limit of not less than the applicable statutory
limit; and employer's liability insurance with limits of not less than $1,000,000. The general
liability policies of CURC and the Licensee Parties shall be endorsed as needed to confirm there
is no insured versus insured exclusion as to coverage for City and CURC. It is the parties' intent
that the Licensee Parties' contractual liability insurance provides coverage to the maximum
extent possible of its indemnification obligations under this Agreement. Each of these insurance
policies shall be endorsed to include CURC and the City and all of their respective elected and
appointed officers, officials, employees, agents, consultants, and contractors as additional
insureds and shall provide that City will receive at least thirty(30) days' prior written notice of
any cancellation or material change in such insurance policy. The general liability policies of
CURC and the Licensee Parties shall be endorsed as needed to provide that the insurance
afforded by those policies to the additional insureds is primary and that all insurance carried by
City is strictly excess and secondary and shall not contribute with the liability insurance of
CURC and the Licensee Parties. Additionally, CURC shall obtain and cause the Licensee Parties
to obtain a waiver of subrogation from their insurer on the policies listed above.
(b) During performance of the Work and all other work or activities permitted under
this Agreement, CURC shall require the Licensee Parties (with the exception of CURC's
employees) to procure, Builder's Risk insurance on an "All Risk" basis (including collapse) on a
completed value (non-reporting) form for full replacement value covering all work incorporated
in the Work. CURC shall also maintain and cause the Licensee Parties to maintain any other
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form or forms of insurance as City may reasonably require from time to time.,-
(c) CURC shall require the Licensee Parties (with the exception of CURC's
employees) to furnish to CURC and the City, prior to entry on the Property, and for the duration
of this Agreement thereafter, current certificates of insurance, including endorsements for
additional insured, waiver of subrogation, primary and non-contribution, insured vs. insured and
primary and non-contributing, confirming insurance coverage for CURC and the Licensee
Parties as specified herein is in full force and effect.
(d) Notwithstanding the foregoing insurance requirements, the insolvency,
bankruptcy, or failure of any insurance company carrying insurance for CURC or any of the
Licensee Parties, or failure of any such insurance company to pay claims accruing, shall not be
held to waive any of the provisions of this Agreement or relieve CURC from any obligations
under this Agreement.
(e) CURC shall, at its sole expense, maintain in full force and effect the liability
insurance coverages required under this Agreement, and shall maintain City and all of its elected
and appointed officers, officials, employees, agents, consultants, and contractors as additional
insureds, for a period of no less than two (2) years after expiration or earlier termination of this
Agreement.,-
4. Indemnity Regarding the Activities of CURC and all of the Licensee Parties.
CURC shall indemnify, protect, hold harmless and defend the City and all of its elected and
appointed officers, officials, employees, agents, consultants, and contractors from and against
any and all claims, demands,judgments, actions, damages, losses, penalties, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and court costs) to the extent
caused by the actions or omissions of CURC or any of the Licensee Parties, except to the extent
arising out of the negligence or willful misconduct of City, or any of its agents, representatives,
employees, consultants, contractors or subcontractors. CURC shall require each of the Licensee
Parties to indemnify, protect, hold harmless and defend CURC and the City and all of their
respective, employees, agents, consultants, and contractors from and against any and all claims,
demands,judgments, actions, damages, losses, penalties, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and court costs) to the extent caused by
the actions or omissions of CURC or any of the Licensee Parties, except to the extent arising out
of the negligence or willful misconduct of the City, or any of its agents, representatives,
employees, consultants, contractors or subcontractors. City shall indemnify, protect, hold
harmless and defend CURC and all of its officers, employees, agents, consultants, and
contractors from and against any and all claims, demands,judgments, actions, damages, losses,
penalties, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees
and court costs) to the extent caused by the actions or omissions of City, except to the extent
arising out of the negligence or willful misconduct of CURC, or any of the Licensee Parties, or
any of their respective agents, representatives, employees, consultants, contractors or
subcontractors.
The covenants and conditions of this Section 4 shall survive the expiration or
earlier termination of this Agreement until all claims, damages and obligations within the scope
of this Section 4 are fully, finally, and absolutely resolved or barred by the applicable statutes of
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limitations.
5. Damage or Destruction. During the term of this Agreement City shall not be liable
for loss of use or other damage of any nature arising out of loss, destruction or damage to the
Property or the Work, by fire, explosion, windstorms, water or any other casualty or by acts of
third parties. In the event the Work or any part thereof is damaged or destroyed by the elements
or any other cause during such times, CURC shall repair, rebuild, or restore it in accordance with
the Approved Plans. The provisions of this Section 5 shall survive the expiration or earlier
termination of this Agreement.
6. Default.
(a) Any one or more of the following events shall constitute a default ("Default") by
CURC under this Agreement: (i) the failure by CURC to pay any sum due to City within ten (10)
days after City provides written notice thereof to CURC; (ii) the failure of CURC to observe or
perform any non-monetary obligations under this Agreement within fifteen (15) days from its
receipt of written notice of breach (provided that the time period shall be twenty-four(24) hours
if the failure results in an imminent and material threat to persons, or property, or the public);
(iii)prosecution of any case, proceeding or=other action under any existing or future law of any
jurisdiction, domestic or foreign relating to bankruptcy, insolvency, reorganization or relief with
respect to CURC, or seeking reorganization, arrangement, adjustment, winding-up liquidation,
dissolution, composition, assignment for the benefit of creditors, or other relief with respect to
CURC or CURC's debts; or(iv) the making by CURC of an assignment or any other
arrangement for the general benefit of creditors under any state statute.
(b) In the event of a Default, in addition to and without limiting all of City's rights at
law or in equity, City shall be entitled at City's option to terminate this Agreement immediately
notice and to remove and store any and all of equipment, personal property located on the
Property at CURC's cost and expense. In the event that City should, as a result of the Default in
the performance by CURC of its obligations hereunder, incur any costs or expenses on behalf of
CURC or in connection with CURC's obligations hereunder, such sums shall be immediately
due to City upon rendering of an invoice to CURC as an additional fee hereunder.
(c) No Default by CURC shall relieve CURC of CURC's obligations or liabilities
hereunder, all of which shall survive such Default and the termination of this Agreement.
(d) All of the rights, powers, and remedies of City provided for in this Agreement and
now or hereafter existing at law or in equity, or by statute or otherwise, shall be deemed to be
separate, distinct, cumulative, and concurrent. No one or more of such rights, powers, or
remedies, nor any mention or reference to any one or more of them in this Agreement, shall be
deemed to be in the exclusion of, or a waiver of, any other rights, powers, or remedies provided
for in this Agreement, or now or hereafter existing at law or in equity, or by statute or otherwise.
The exercise or enforcement by City of any one or more of such rights, powers, or remedies shall
not preclude the simultaneous or later exercise or enforcement by City of any or all of such other
rights, powers, or remedies.
7. Assignment. CURC may not assign, transfer, or otherwise encumber its interest in
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this Agreement during the term of this Agreement without the prior written consent of City,
which consent may be withheld in City's sole and absolute discretion. Any assignment which is
not consented to by City or permitted by this Section 7 shall terminate this Agreement and the
License granted herein, effective immediately and without further action by City.
8. Termination. The License granted to CURC hereunder shall automatically
terminate and thereafter be of no further force or effect upon the earlier of(i) forty-eight (48)
months following the Effective Date hereof, and (ii) the date upon which the Work is finally
completed; provided, however, City may agree to extend such License in City's sole discretion.
9. Notices. All notices required hereunder shall be in writing;_and shall be delivered
in the manner specified in the Lease-Back Agreement.
10. Attorneys' Fees. In the event that any party hereto institutes an action or
proceeding for a declaration of the rights of the parties under this Agreement, for injunctive
relief, for an alleged breach or default of, or any other action arising out of, this Agreement, or
the transactions contemplated hereby, or in the event any party is in default of its obligations
pursuant thereto, whether or not suit is filed or prosecuted to final judgment, the non-defaulting
party or prevailing party shall be entitled to its actual attorneys' fees and to any court costs
incurred, in addition to any other damages or relief awarded.
11. Binding on Successors. The terms and conditions herein contained shall be
binding upon and inure to the benefit of the successors and assigns of the parties hereto.
12. Applicable Law. This Agreement shall be construed in accordance with the laws
of the State of California.
13. Partial Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall
continue in full force and effect and shall in no way be impaired or invalidated, and the parties
agree to substitute for the invalid or unenforceable provision a valid and enforceable provision
that most closely approximates the intent and economic effect of the invalid or unenforceable
provision.
14. Entire Agreement. All exhibits referred to herein are attached hereto and
incorporated herein by this reference. This Agreement, the Lease-Back Agreement and the
Construction Agreement contain the entire agreement and understanding of the parties with
respect to the subject matter hereof and cannot be amended or modified except by a written
agreement, executed by each of the parties hereto. The terms and provisions of this Agreement
and the terms and provisions of the Lease-Back Agreement and the Construction Agreement
shall be read together as a single, integrated document. However, in the event of a conflict
between the terms and provisions of this Agreement with regard to the License granted
hereunder, and the terms and provisions of the Lease-Back Agreement or the Construction
Agreement, the terms and provisions of this Agreement shall prevail.
15. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purposes, be deemed an original and all such counterparts, taken together,
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set
forth above.
"CURC"
CITY URBAN REVITALIZATION
CORPORATION,
a California non-pr fit public benefit corporation
By:
Name: , JA67. guff--
Title:
'u?rTitle: GFo
"CITY"
THE CITY OF CATHEDRAL CITY,
a municipal corporation
By: tc. .t.
Name: Charles P. McClendon
Title: City Manager
ATTEST:
Tracey R. M.0 inez, CMC AP
Deputy City Clerk
City of Cathedral City
APPROVED AS TO FORM:
Burke, Williams & Sore .-n, LLP
By: iA
Eric S. Vail
City Attorney
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