HomeMy WebLinkAboutContracts & Agreements_189-2012_CCv0001-6.pdf LANDFILL LICENSE AGREEMENT
THIS LANDFILL LICENSE AGREEMENT("License") is made as of this 18'h day of
September,2012,between Howard Industrial Partners LLC, a California limited liability
company and its assigns ("Licensor") and the City of Redlands, a municipal corporation
("License ').
RECITALS
A. Licensor and Licensee are parties to that certain Conditional Property Disposition
Agreement dated as of October 18, 2011, as amended(the"Agreement'),pursuant to which the
Licensee agreed to convey to Licensor that certain real property located in the City of Redlands,
California,legally described on Exhibit A attached hereto and incorporated herein by this
reference(the"Proert '), on the terms and conditions contained in the Agreement.
B. Pursuant to the terms of the Agreement, Licensor and Licensee have agreed to
enter into this License to permit Licensee to cause the relocation of all gas probes and all
groundwater monitoring wells (collectively, "Probes") currently located on the Property to the
Licensee's adjacent landfill property.
AGREEMENT
In consideration of the above and the mutual covenants and agreements herein,the parties
agree as follows:
1. Grant of License. Licensor hereby grants to Licensee a nonexclusive,temporary
license to use the Property for the purpose of relocating the Probes from the Property to
Licensee's adjacent landfill property, including without limitation, the proper closure of the
Probes, in accordance with the terms and conditions in this License. Provided Licensor approves
the Relocation Costs as described in Section 4 below, Licensee shall cause the relocation of the
Probes to be completed no later than ninety(90) days after written request by Licensor. If
written notice not provided by Licensor, Licensee shall complete the relocation of the Probes not
later than May 31, 2013. Licensee represents and warrants that it has obtained all approvals from
any and all governmental authorities necessary for the relocation of the Probes.
2. Use by Licensor. Licensor reserves the right to use, or grant any other party the
right to use,the Property for any purpose whatsoever, provided the same does not materially
interfere with or prohibit Licensee's use of the Property for the purposes herein granted.
3. Covenants of Licensee. Licensee covenants that(a) when all or any part of the
Property or any other property owned by Licensor shall be disturbed or altered in any way by
Licensee(or Licensee's agents, contractors, direct and indirect employees, or others for whose
acts any of them may be liable [collectively, "Representatives"l) in connection with the exercise
of its rights hereunder, Licensee, at its sole expense, shall promptly restore the Property and
other Licensor property to as good a condition or better as existed immediately prior to any
disturbance or alteration, (b) it shall maintain the Property and all improvements thereon
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(including,without limitation, fences) in a safe, neat, operational and clean condition and shall
minimize any interference with Licensor's operations thereon, and (c) it shall at all times comply
with applicable laws,rules, regulations, ordinances and rulings in connection with its use and
operations on the Property, and its activities shall be performed without harming the Property or
allowing the release of any Hazardous Materials. Licensee shall be solely responsible for
obtaining all necessary permits and approvals in connection with the relocation of the Probes.
Licensee shall indemnify, defend and hold harmless Licensor, its parent and subsidiary
companies, and all of their officers, directors, trustees,partners,managers, shareholders,
employees, agents,successors and assigns (collectively, "Indemnified Parties")from all losses,
costs, damages, claims,liabilities or expenses (including attorneys' fees) directly or indirectly
suffered or incurred by or asserted against any of the Indemnified Parties by reason of, on
account of or in any way relating to, Licensee's or its Representatives' use and enjoyment of the
Property. Licensee hereby acknowledges and agrees that the Indemnified Parties shall not be
liable to Licensee or any of Licensee's Representatives for any injury, loss,damage, liability,
claim, cause of action or expense incurred or suffered by any of them, directly or indirectly
arising out of or in any way relating to entry upon the Property and/or the performance thereon
of the work contemplated under this License by Licensee or any of Licensee's Representatives
from any cause whatsoever, except to the extent caused by the negligence or willful misconduct
of an Indemnified Party. Licensee acknowledges that Licensor does not currently occupy the
Property, and makes no express or implied representation or warranty concerning subsurface or
latent conditions at the Property.
Licensee agrees that the relocation of the Probes shall be conducted and performed by Licensee's
Representatives in a good and workmanlike manner consistent with the degree of skill and care
ordinarily used by reputable members of the same profession practicing in the locality where the
work is to be performed under like circumstances. Licensee shall select the contractor through
the solicitation of competitive bids and the award of a contract for the same(the"Relocation
Contract')pursuant to the provisions of the California Public Contract Code.
4. Cost of Relocation of Probes. Licensor agrees to pay all actual costs and
expenses incurred by the Licensee in relocating the Probes in accordance with this Agreement,
including the Licensee's costs incurred for the preparation of plans, specifications and design for
such relocation work and the work of the contractor(s) to relocate the Probes(the"Relocation
Costs"),provided such Relocation Costs are approved in writing in advance by Licensor. In the
event the Relocation Costs are not approved by Licensor, then Licensee's obligation to cause the
relocate of the Probes shall cease, provided however, that Licensor shall retain the right to
relocate the Probes onto the Licensee's adjacent landfill property, and Licensee shall cooperate
with such relocation activities, including without limitation,by submitting and pursuing
necessary application or work plans with all regulatory agencies. In the event Licensor does not
approve the Relocation Costs, Licensor shall remain obligated to reimburse Licensee for
Licensee's actual third party costs incurred for the preparation of plans, specifications and design
for such relocation work, Licensor shall use such plans, specification and designs for the
relocation work and Licensor shall be solely responsible for the relocation of the Probes in
accordance with all applicable laws and regulations. If the Relocation Costs are approved by
Licensor, Licensor shall deposit with the Licensee the amount of the Relocation Contract within
ten(10) days of Licensee's award of the Relocation Contract. Payment of the Relocation Costs
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will be subject to Licensee submitting to Licensor copies of contracts, work orders, and invoices
associated with the relocation of the Probes. Any Relocation Costs paid by Licensor but which
are not owed or paid by Licensee shall be promptly returned by Licensee after the completion of
the work.
5. Hazardous Materials Handling. Nothing in this Agreement shall give Licensee
the right to use the Property to treat, store or dispose of any materials or wastes, including but not
limited to hazardous wastes. Licensee is, and at all times shall identify itself as,the generator of
any wastes or hazardous wastes resulting from Licensee's activities under this License.
Licensee shall be responsible for the proper characterization of any such wastes as hazardous or
non-hazardous and their proper management. All documentation for transportation or disposal of
such wastes and hazardous wastes from the Property shall be prepared and executed in
Licensee's name only and Licensor shall have no responsibility or liability therefore.
6. Insurance. Licensee and its Representatives shall, at their sole cost and expense,
maintain, during the term of this Agreement, the following policies of insurance, with
deductibles/self-insured retentions, with carriers that maintain a Rating of no less than A- from
A.M. Best, and, except with respect to the coverage in sub-paragraph (i) below,naming Licensor
as an additional insured on a primary non-contributing basis. Licensee shall furnish Licensor
with certificate(s) evidencing such insurance prior to the commencement of any activities upon
the Property:
(i) Worker's Compensation Insurance with limits as required by applicable law, and
covering all persons employed in the conduct of the activities to be undertaken under
this Agreement;
(ii) Commercial General Liability Insurance on an "occurrence" basis, covering all
operations of Licensee as named insured, including, without limitation, (1) property
damage liability, and (2) contractual liability (which includes coverage for the
indemnity and hold harmless agreement set forth in this License), against claims for
bodily injury, property damage and death, and with a combined single limit of not less
than Two Million Dollars ($2,000,000) per occurrence, and Five Million Dollars
($5,000,000)in the aggregate;
(iii) Comprehensive Automobile Liability Insurance on an "occurrence" basis, with a
combined single limit of not less than Two Million Dollars ($2,000,000) per
occurrence against bodily injury and property damage liability arising out of the use by
or on behalf of Licensee or its Representatives, of any owned, non-owned or hired
motor vehicle or automotive equipment. Such comprehensive automobile liability
insurance shall include contractual liability coverage unless such coverage is included
in the Commercial General Liability Insurance,
(iv) Contractors' Pollution Liability for any contractors performing any environmental
work on the Property in an amount of not less than Two Million Dollars ($2,000,000)
per occurrence/incident/claim covering losses caused by pollution conditions that arise
from the operations of such contractor on or about the Property, including bodily injury,
sickness, disease, mental anguish or shock sustained by any person, including death,
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property damage including physical injury to or destruction of tangible property
including resulting loss of use, clean up costs, and the loss of use of tangible property
that has not been physically injured or destroyed and defense including costs, charges
and expenses incurred in the investigation, adjustment or defense of claims for such
compensatory damages.
Such certificates must be provided to Licensor prior to any entry onto the Property by Licensee.
7. Governing Law. This License shall be construed and enforced in accordance with
the laws of the State of California.
8. Severability. All terms and conditions of this License will be deemed severable.
Should any one or more of the terms and conditions hereof be deemed void or unenforceable,
then (a)the remaining provisions will have full force and effect, and (b)those provisions deemed
void or unenforceable will be interpreted, to the extent possible, so as to render such provisions
enforceable and in a way consistent with the original intent of the parties hereto.
9. Counterparts. This License may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the same
instrument.
10. Tenn. This License shall terminate on the first to occur of the following: (a)
completion of the relocation of the Probes; or(b) Licensor giving Licensee 15 days' advance
written notice following a default of Licensee, which default remains uncured within such 15 day
period.
11. Default. If either party fails to perform as required hereunder and is given written
notice of default, and if the defaulting party fails to correct the default within fifteen(15) days
after such notice, or if in the case of a default involving potential danger to personal health or
safety, the defaulting party fails to correct the default within one(1)day after that notice, then
the nondefaulting party, at its election and in its sole discretion, may cure the default for and on
behalf of the nondefaulting party, and any amounts which the non-defaulting party may expend
for that purpose or which otherwise may be due by the defaulting party to the nondefaulting
party shall be due on demand together with interest thereon at a rate which is the greater of 10%
per annum or the maximum rate permissible by law, from the date of expenditure to the date
when full payment is made by the defaulting party.
12. Remedies. In the event of a breach or threatened breach of any term, covenant or
condition of this License, the nonbreaching party shall have, in addition to all other legal and
equitable remedies available, the right to enforce the provisions hereof by injunctive relief or
otherwise,without the necessity of proof of actual damage or inadequacy of any legal remedy. If
any legal action or other proceeding is brought to enforce this License, or because of an alleged
dispute,breach, or default in connection with any of the provisions of this License,the successful
or prevailing party will be entitled to recover reasonable attorney fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they may be entitled.
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13. Liens. Licensee shall keep the Property, and any part thereof, free and clear of all
mechanics' materialmens', Licensees', or subcontractors' liens arising from the Licensee's
activities on the Property. In the event any such liens shall be filed against the Property,
Licensor shall provide prompt written notice of same to Licensee and Licensee shall cause the
same to be paid,discharged,released and satisfied and/or removed of record by bonding or
otherwise within ten(10)business days following Licensee's receipt of Licensor's written notice
of same. If Licensee fails to cause any such liens to be removed of record within the foregoing
time period,then Licensor may do so and Licensee shall reimburse Licensor for the costs it
incurs in connection with such removal within ten(10)days following Licensor's written
demand.
14. Notices. If any notice required or desired to be given to either party hereunder
shall be deemed given: (a) when delivered personally to that party, or(b) one(1)day after
deposit with a nationally recognized overnight courier service, or(c)three(3)days after deposit
in the United States mail, as certified mail,return receipt requested, postage prepaid. Notices
delivered pursuant to subsections (b) or(c)hereof shall be delivered to the following addresses,
all of which information shall be deemed current unless notice is given to the other party of a
change hereto pursuant to the notice requirements herein:
If to Licensor: Timothy J. Howard, Owner
Howard Industrial Partners LLC
155 N. Riverview Drive
Anaheim Hills, California 92808
If to Licensee: City Clerk
City of Redlands
35 Cajon Street, Suite 4
P.O. Box 3005 (mailing)
Redlands, California 92373
15. Successors and Assigns. The rights and obligations of Licensor and Licensee
hereunder will be binding upon and will inure to the benefit of the parties hereto and their
respective successors and assigns. Provided, however, that the rights herein granted are personal
to Licensee and may not be assigned, directly or indirectly, partially or wholly,to any other
party.
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THIS LICENSE has been executed by the Licensor and the Licensee as of the date and
year first set forth above.
LICENSOR
THE CITY OF REDLANDS
By:
Pete Aguilar, Mayor
ATTEST:
By:
Sam Irwin, Cit C1e
LICENSEE
HOWARD INDUSTRIAL PARTNERS LLC, a
California limited liability company
By:
Tim award, Owner
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EXHIBIT A
Property Legal Description
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EXHIBIT 'A'
File No.: NCS-499611-ONT1 (jd)
Property: +j-37.18 Acres,APN# 0292-044-09;10;11and;12, Redlands, CA 92374
PARCEL A:
LOTS 1 AND 4, GREGORY TRACT NO. 1, IN THE CITY OF REDLANDS, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA,AS PER PLAT RECORDED IN BOOK 19 OF MAPS,
PAGE 94, RECORDS OF SAID COUNTY.
TOGETHER WITH THAT PORTION OF PALMETTO AVENUE VACATED BY RESOLUTION NO.
7145 RECORDED JUNE 4, 2012 AS INSTRUMENT NO. 2012-0218943 OF OFFICIAL
RECORDS DESCRIBED IN EXHIBIT"A", BOUNDED ON THE EAST BY THE EASTERLY LINE
OF SAID LOT 4 PROJECTED SOUTHERLY.
APN: 0292-044-09-0-000 AND 0292-044-10-0-000
PARCEL B:
LOT 7 OF GREGORY TRACT NO. 1, IN THE CITY OF REDLANDS, COUNTY OF SAN
BERNARDINO,STATE OF CALIFORNIA, RECORDED IN BOOK 19, PAGE 94 OF MAPS IN
THE OFFICE OF THE COUNTY RECORDER, COUNTY OF SAN BEMARDINO,STATE OF
CALIFORNIA.
EXCEPTING THAT PORTION OF LOT 7 OF SAID GREGORY TRACT NO. 1 DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT 7 OF SAID GREGORY TRACT NO. 1
AS SHOWN ON RECORD OF SURVEY RECORDED IN BOOK 68, PAGE 23 RECORDS OF
SURVEY IN THE OFFICE OF THE COUNTY RECORDER, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA,THENCE; S89027'57"E 320 FEET, MORE OR LESS,ALONG THE
NORTH LINE OF SAID LOT 7,TO A POINT ON A LINE THAT IS PARALLEL WITH AND 320
FEET EAST OF THE WEST LINE OF SAID LOT 7, SAID POINT BEING THE TRUE POINT OF
BEGINNING,THENCE; S0003821"W 30.07 FEET, MORE OR LESS, PARALLEL WITH AND
320 FEET EAST OF SAID WEST LINE OF LOT 7,TO A POINT ON A LINE THAT IS PARALLEL
WITH AND 600.00 FEET NORTH OF THE SOUTH LINE OF SAID LOT 7,THENCE;
S89027'49"E 340.66 FEET, MORE OR LESS, PARALLEL WITH AND 600.00 FEET NORTH OF
SAID SOUTH LINE OF LOT 7,TO THE EAST LINE OF SAID LOT 7,THENCE; N00°36'38" E
30.08 FEET, MORE OR LESS,ALONG THE EAST LINE OF SAID LOT 7,TO THE NORTHEAST
CORNER OF SAID LOT 7,THENCE; N89°27'57"W 340.65 FEET,ALONG THE NORTH LINE
OF SAID LOT 7,TO THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS PROPOSED PARCEL 1 IN A CERTIFICATE OF
COMPLIANCE RECORDED JUNE 4, 2012 AS INSTRUMENT NO. 2012-0218944 OF
OFFICIAL RECORDS OF SAID SAN BERNARDINO COUNTY.
TOGETHER WITH THAT PORTION OF PALMETTO AVENUE VACATED BY RESOLUTION NO.
7145 RECORDED JUNE 4, 2012 AS INSTRUMENT NO. 2012-0218943 OF OFFICIAL
RECORDS DESCRIBED IN EXHIBIT"A", BOUNDED BY THE WESTERLY AND EASTERLY
LINES OF SAID LOT 7 PROJECTED SOUTHERLY.
NCS-499611-ONTI 1 of 2
First American Title Insurance Company National Commercial File Na.: NCS-499611-ONTI (jd)
Services
Date: September 19, 2012
APN: A PORTION OF 0292-044-11-0-000
PARCEL C:
LOT 10 OF GREGORY TRACT NO. 1, IN THE CITY OF REDLANDS, COUNTY OF SAN
BERNARDINO,STATE OF CALIFORNIA, RECORDED IN BOOK 19, PAGE 94 OF MAPS IN
THE OFFICE OF THE COUNTY RECORDER, COUNTY OF SAN BEMARDINO,STATE OF
CALIFORNIA.
EXCEPTING THAT PORTION OF LOT 10 OF SAID GREGORY TRACT NO. 1 DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF LOT 10 OF SAID GREGORY TRACT NO. 1
AS SHOWN ON RECORD OF SURVEY RECORDED IN BOOK 68, PAGE 23 RECORDS OF
SURVEY IN THE OFFICE OF THE COUNTY RECORDER, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA,THENCE; N89°27'57"W 300 FEET, MORE OR LESS,ALONG THE
NORTH LINE OF SAID LOT 10,TO A POINT ON A LINE THAT IS PARALLEL WITH AND 300
FEET WEST OF THE EAST LINE OF SAID LOT 10, SAID POINT BEING THE TRUE POINT OF
BEGINNING,THENCE; S00°34'55"W 30.10 FEET, MORE OR LESS, PARALLEL WITH AND
300 FEET WEST OF SAID EAST LINE OF LOT 10,TO A POINT ON A LINE THAT IS
PARALLEL WITH AND 600.00 FEET NORTH OF THE SOUTH LINE OF SAID LOT 10,
THENCE; N8902749"W 330.67 FEET, MORE OR LESS, PARALLEL WITH AND 600.00 FEET
NORTH OF SAID SOUTH LINE OF LOT 10,TO THE WEST LINE OF SAID LOT 10,THENCE;
N00036'38"E 30.08 FEET, MORE OR LESS,ALONG THE WEST LINE OF SAID LOT 10,TO
THE NORTHWEST CORNER OF SAID LOT 10,THENCE; S89027'57"E 330.65 FEET,ALONG
THE NORTH LINE OF SAID LOT 10,TO THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS PROPOSED PARCEL 3 IN A CERTIFICATE OF
COMPLIANCE RECORDED JUNE 4, 2012 AS INSTRUMENT NO. 2012-0218944 OF
OFFICIAL RECORDS OF SAID SAN BERNARDINO COUNTY.
TOGETHER WITH THAT PORTION OF PALMETTO AVENUE VACATED BY RESOLUTION NO.
7145 RECORDED]UNE 4, 2012 AS INSTRUMENT NO. 2012-0218943 OF OFFICIAL
RECORDS DESCRIBED IN EXHIBIT"A", BOUNDED ON THE WEST BY THE WESTERLY
LINE OF SAID LOT 10 PROJECTED SOUTHERLY.
A.P.N.A PORTION OF 0292-044-12-0-000
NCS-499611-ONTI 2 of 2