HomeMy WebLinkAboutContracts & Agreements_62-2014_CCv0001.pdf LICENSE AGREEMENT
This License Agreement ("Agreement„) is made and entered into this 6th day of May.
2014 ("Effective Date”' by and between the City of Redlands, a municipal corporation
("Licensor''), and Redlands Land Acquisition Company.. LP, a Delaware limited partnership
("Licensee"). Licensor and Licensee are sometimes herein individually referred to as a "Party"
and, together, as the"Parties."
RECITALS
WHEREAS, Licensor is the owner of certain real property located in the City of
Redlands and more particularly described in Exhibit "A" attached hereto and incorporated herein
by this reference (the"Property"); and
WHERAS. Licensee desires to enter upon the Property to perform a Phase If
Environmental Site Assessment of the Property on the terms and conditions hereinafter set forth.
The scope, nature and specific locations on the property are set forth in the proposal attached as
Exhibit"B"hereto and incorporated herein by this reference;
Now, therefore, in consideration of the mutual covenants contained herein, the City of
Redlands and Redlands Land Acquisition Company, LP agree as follows,
L Grant of License. Licensor hereby grants to Licensee (as used herein, the term
"Licensee" shall mean Licensee. its agents and independent contractors) a revocable non-
exclusive license to enter the Property, and perform a Phase 11 Environmental Site Assessment,
subject to all of the terms and conditions hereof. Such activities shall be performed by Licensee
in conformance with all applicable federal, state, regional and local laws, rules, ordinances and
regulations and shall not hinder or interfere with any of Licensor*s or its agents activities on the
Property.
Notice of EnIDL Licensee shall provide Licensor with three (33)days prior written
notice of the dates on which Licensee desires to enter upon the Property. Notices sent by mail
should be addressed as follows:
City Redlands Land Acquisition Company, LP
Oscar Orci Peter F. Riley
Development Services Director General Counsel
Citv of Redlands The Howard Hughes Corporation
1]6 E. Citrus One Galleria Tower
Z_
PO Box 3005 13355 Noel Road. 22,d
Floor
Redlands. CA. 92373 Dallas, TV 75240
(909)335-4755 (214)741-7744
s. or represent that
Condition of Property Not Warranted. Licensor does not warrant
the Property is safe or suitable for any particular use or for any other purpose. and Licensee
agrees its entry upon the Property and activities thereon are performed at its own risk.
recognizing the Property is in an "as is" condition.
4. Commencement, Termination. This Agreement shall commence upon its Effective
Date and shall terminate ninety (90) days thereafter.
5. Insurance. To the extent applicable. Licensee shall at all times cam,adequate
Workers' Compensation Insurance to the full requirements of the State of California for any
employees of Licensee performing work pursuant to this Agreement.
In
6. Indemnification of Licensor. Licensee shall defend, indemnify and hold Licensor
free and harmless from and against all liability. loss, damage. costs or expenses (including
reasonable attorneys' fees and court costs arising from or as the result of the death of any person
or any personal injury, accident, claim, loss or damage whatsoever caused to any person or to the
property of any person, or any responsibility or liability resulting from or in any way connected
with Licensee's entry upon and use of the Property, except to the extent caused by Licensor's
negligent acts or omissions.
7. Assignment. The license granted by this Agreement is personal to Licensee.
Licensee shall not have the right to assign its rights under this license except upon the prior
written consent of Licensor. Any attempt to assign the license granted by this Agreement without
the prior written consent of Licensor shall result in the immediate termination of this Agreement..
8. Entire Agreement. This Agreement embodies the entire understanding of the
Parties hereto with respect to the subject matter of this Agreement., and there are no further or
other agreements or understandings. written or oral, in effect between the Parties relating to the
grant of this revocable- license.
9. Attorneys' Fees. In the event any legal action is commenced to enforce or interpret
the terms or conditions of this license, the prevailing Party in such action shall be entitled to
recover in addition to its costs and other relief. its reasonable attorneys' fees, including fees for
use of in-house counsel by a Party.
10. CountgWgrts. This Agreement may be executed with counterpart signature pages
which. when attached to this Agreement, shall constitute one fully-executed document.
In witness whereof, the Parties have executed this Agreement as of its Effective Date.
CITY OF REDLANDS, Licensor REDLANDS LAND ACQUISITION CO., LP,
Licensee
By: � By: Redlands Land Acquisition Company, LLC
Pete Aguilar, Mayor Its general partner
By: The Howard Research and Development
Corporation
Its sole memh
By:
Grant H • resident
ATTEST
AIrAySa , Clerk
Exhibit A—Property Description
The Redlands Land Acquisition Company, LP proposes to conduct a Phase 11 Environmental Site
Assessment of the Property generally referred to as the Redlands Mall. The Property assessment
area includes all City-owned property (parking lots exclusive of the privately owned buildings)
as depicted on the Site Map (Exhibit 4
Exhibit B - Proposal
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this "Agreement"), and is made by and between REDLAND3 LAND
ACQUISITION COMPANY, LP, a Delaware limited partnership ("Owner"), and TERRACON CONSULTANTS, |N[, mDelaware
corporation (°Cmnsmhant"), in connection with the project known as The Redlands Mail in Redlands, California (the
"Project"). Owner and Consultant, for the mutual covenants and other consideration described herein, the receipt and
suffidencyofwhich are hereby acknowledged, hereby agree asfollows:
l� Scope of Services, Compensation, Schedule, Consultant shall provide the services described in Exhibit A (the
"Services") in compliance with this Agreement. Consultant's total compensation for the Services may not exceed the total,
comclensation set forth in Exhibit A,which will be paid in the installments set forth in Exhibit A. All amounts,if any, paid to
consultant for Services performed prior to the Effective Dote of this Agreement will be credited on Consultant's
compensation hereunder. Consultant shall use its commercially standard professional skills and judgment in the
performance ufthis Agreement, and shall perform all Services in accordance with the standard of care and skill ordinarily
used by and expected of members of the Consultant's profession in the same orsimilar locality un projects ofs{mi|arsize,
scope, complexity and quality. Consultant will determine the means, methods, techniques and procedures for performing
the Services, provided' however, that all Services must be performed in a diligent, prudent' safe, good and workmanlike
manner' and in conformity with all applicable federal, state and local laws and regulations applicable to the Services.
Consultant shall perform the Services as expeditiously as is consistent with the standard of care set forth herein and the
orderly progress of the Services and the Project' and in accordance with the schedule established in Exhibit A for the
performance ofConsultant's Services. If no schedule is set forth in Exhibit A,then as soon as practicable after the Effective
Date ofthis Agreement, Consultant shall submit for the Owner's approval a schedule for the performance of Consultant's
Services. Once approved by the Owner,Consultant shall not exceed time limits established by the schedule.
2. Subcmnsultmntq Independent Contractor Status. Consultant shall, at Consultant's own expense and risk, employ
such design professionals, engineers and other consultants (collectively, ^Subconsuhon{s") as Consultant deems necessary
toperform the Services required bythis Agreement. Consultant shall bywritten contract require each Submonsu|tanttohe
bound to and ozassume toward Consultant all the obligations and responsibilities that Consultant, bythis Agreement,
assumes toward Owner. Consultant is an independent contractor and not an employee oragent ofOwner. Accordingly,
neither Consultant nor any of Consultant's employees, 5ubconuu|tants' or agents shall hold themselves out as, or claim to
be acting in the capacity of,an agent or employee of Owner or any entity affiliated with Owner.
3, Ownership of Work Product. Owner is the sole owner of all deliverables provided in connection with the
performance of the Services, including, without limitation, all writings, conceptual o/ schematic designs' preliminary and
final drawings and specifications, addenda, blueprints, pictures, recordings, computer or machine readable models, data or
designs, and all copies o/reproductions ofany ofthe foregoing (collectively, the "Work Product ). With the exception of
the intellectual property rights owned by Consultant and developed by it outside of this Agreement,Owner shall be the sole
owner ufany and all intellectual prop" rights' including without limitation, all patent' copyright, trademark and trade
secrets rights inand tuthe Work Product. Owner has the right tosecure appropriate registration and protection furany
and all intellectual property rights in and tothe Work Product. With respect tocopyrights, all Work Product sho|| he
considered "work for hire"and the property of Owner irrespective of any copyright notices or confidential ity legends to the
contrary which Consultant orany Subcunsu|tant may have placed in or on the Work Product, Consultant hereby expressly
assigns to Owner,without further consideration,all right,title and interest in and to the Work Product,including any and all
patent, copyright(if the Work Product is for any reason not considered a "work for hire"), trademark and/or trade secret
rights thereto, and agrees to execute all documents required to evidence such assignment. Consultant warrants that the
Services furnished byurthrough Consultant will be free of violations of all intellectual prop" laws, including, without
limitation, patent infringement and copyright infringement, Upon Owner's request or termination of this Agreement,
Consultant shall deliver to Owner complete and legible copies of the Work Product, in the hard copy or electronic form
specified in this Agreement or otherwise agreed to by the parties, Consultant may not use the Work Product for any
purpose other than in connection with the Project, or disclose such Work Product to any third party or use the Work
Product for the benefit ofany third party, without the prior written consent o(Owner, Submission ordistribution ofall or
any portion cf the Work Product to meet official regulatory requirements in connection with obtaining approvals or permits
for the Project or for other purposes in connection with the development of the Project is not to be construed as
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publication in derogation of Owner's rights. Consultant shall not be liable for the unauthorized reuse or modification of its
work product byany party other than Consultant,its agents,employees,and subcontractors,
4� Confidentiality. Consultant acknowledges that Owner and its parent, subsidiary, and affiliated companies are the
owners of valuable trade secrets and other confidential and proprietary information, Consultant shall treat all information
relating tothe Project, including all information supplied toConsultant by Owner and Work Product produced byoron
behalf ofConsultant,as confidential and proprietary information of Owner and shall not use itfor any purpose other*than
providing the Services or permit its release to unauthorized third parties without Owner's prior written authorization,
unless required bylaw orcourt order, Consultant shall also require all Subconsultants to comply with this requirement, If
the Services required under this Agreement involve environmental or forensic vvo/k' such work shall be deemed and
treated byConsultant asbeing performed for, and in conjunction with, legal counsel for Owner and treated as privileged
material, Consultant shall not report environmental matters to any governmental agency without prior writ-ten approval by
Owner, In the event of a breach or threatened breach of the provisions of this Section, Owner is entitled to seek and obtain
injunctive relief restraining such breach or threatened breach without the need to post bond and without having to prove
actual damages or threatened irreparable harm. Owner's right to such injunctive relief is in addition to all other rights and
remedies available at{avv or in equity. The provisions of this Section shall survive the expiration mrearlier termination of
this Agreement,
5. Publicity. Consultant and its Subconsultants shall not communicate with the public press or media representatives
about the Project without the prior written consent of Owner. Publicity, press releases, advertising, printed and/or display
materials, articles, papers or treatises addressing or depicting the Services or the Project maybe permitted in the sole
direction and control of Owner. The provisions of this Section shall survive the expiration or earlier termination of this
Agreement.
6, Termination. Owner may terminate this Agreement mtany time for Owner's convenience. Such termination is
effective immediately upon Owner's sending written notice of termination to Consultant at the email o/ postal address
given below, Upon termination, Consultant is entitled to payment for the proportion of Services property performed p6or
to term/nation. Consultant is not entitled to, and Owner is not obligated to make' payment for Services not performed or
improperly performed prior totermination.
7, indemnity.Tnthe fullest extent permitted by law, Consultant shall indemnify, and hold harmless Owner, and its
direct and indirect parents,subsidiaries and other affiliated entities, and all of its respective successors,assigns,and current
or future officers, dinecto,s, manage/s' members, partners, shareholders, and employees (collectively the "Indemnified
Parties" and individually, "Indemnified Party"), from and against all claims, damages' liabilities, losses and expenses,
including, but not limited to, reasonable attorneys' fees and other costs and expenses of litigation or arbitration, that may
be incurred by, or recovered against, the Indemnified Parties, orany ofthem, arising out oforresulting from: any actual
negligent orwrongful act uromission, willful misconduct or gross negligence by Consultant, itsSubcnnsu|tants' or rhe|r
respective agents or employees or anyone else for whose acts they may be liable (collectively,the"Consultant Parties"') in
connection with the performance or nonperformance of the Services, except to the extent caused by the negligent acts or
omissions of the Indemnified Party or Indemnified Parties seeking enforcement of this Section; any breach of Consultant's
obligations or representations under this Agreement;and/or,violations of'any intellectual property laws,including,without
limitation, patent infringement and copyright infringement. Consultant's indemnity obligations shall not be limited by the
amount of the insurance coverage(s) required of Consultant hereunder, and shall not be limited by a limitation on amount
or type of damages,compensation or benefits payable by or for any of the Consultant Parties under workers'compensation
acts, disability benefit acts or other employee benefit acts. The indemnification provision of this Section is intended to
comply with applicable laws governing this Agreement, and should be construed as broadly as possible to satisfy that
intent, The indemnity obligations of this Section shall survive the expiration or earlier termination of this Agreement,
0, Insurance.Consultant shall procure and havein full force and eff ect at all times during the term of this Agreement:
(a) workers' compensation with statutory limits and employer's liability limits of not less than $1.000,000� Consultant
agrees to hold harmless, and indemnify the indemnified Parties for any and all claims arising out ofan injury, disability, o,
death of any employees or agents of Consultant or Subconsu|tanty of every tier unless due to the negligence of an
Indemnified Party; (b) an "occurrence" bayed policy for general liability insurance with limits of not |eaa than
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$1,000000/mccmrnenoe, $2/000000/aggregaue, covering liabilities for personal injury, completed operations, death and
property damage arising out of all work performed by Consultant or Consultant's employees or agents under this
Agreement; (c) automobile liability with a combined limit of $1,000,000 including coverage for owned, hired, and non
-
owned vehicles; N> pollution liability insurance of not less than $2'000000/occuxenom when the scope of work includes
hazardous substances orremediation; and (e)all architects, engineers and design professionals must evidence professional
liability coverage with limits not less than$2'00O^QO0/de|m,$4'ODO.O00/aggregate. All such insurance shall beprovided by
insurers fully licensed to do business in the'iuriscliction in which the Project is located, and with A.M. Best's ratings of A-VII
or better. Consultant shall cause all such insurance policies (i)to contain a waiver of subrogation in favor of, and to also be
primary and non-contributory tm any other insurance available to Owner and the other indemnified Parties; (Q) to provide
90 days' notice of cancellation; and (||i) with respect to the gene/a| liability insurance, automobile liability insurance, and
pollution liability insurance policies required above, to name Owner and the other Indemnified Parties as additional
insureds for "all work" performed by Consultant and Subconsu|tants of any tier, including completed operations,
Consu|tantshaUobtainandde|ivertoOwne'evidenceoYtheabove'referencedinsurencecuveraQe(infonnandyubstmnce
reasonably acceptable to Owner) prior to commencement of Services, Consultant shall require all Subconyu|tants to
provide for and comply with these insurance terms.
g. Performance and Payment. Should Consultant fail substantially to perform in accordance with the terms of this
Agreement, Owner may withhold payment for improperly performed Services. Upon receipt of written notification by
Owner of the withholding of payment' Consultant shall correct the improperly performed Services, and upon satisfactory
performance of the Services,Owner shall make the withheld payment to the Consultant.
10, Third-Party Rights. Except as expressly stated to the contrary' nothing contained in this Agreement creates a
contractual relationship with or duties, obligations o, causes of action in favor of any third party against either Owner or
Consultant, except that Owner and its successors and assigns shall be and is hereby named as an intended third-party
beneficiary.
1L General Provisions. Consultant may not assign any right or delegate any obligation under this Agreement without
Owner's prior written consent. Owner may assign any right or delegate any obligation under this Agreement to any of
Owner's affiliated companies, lenders or other third parties with or without Consultant's consent. If any provision of this
Agreement, including without limitation the indemnity and defense provision' is determined to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement remain in full force if the essential terms and conditions for
each party remain valid,binding and enforceable. In lieu of each invalid or unenforceable provision,the Parties agree that a
provision as near to the intent of the Parties that is valid and enforceable shall be substituted by the Parties, or, failing
agreement ofthe Parties,byacourt ofcompetent jurisdiction, All Exhibits attached tothis Agreement are incorporated by
reference as if set forth fully herein. in the event of any conflict between this Agreement and any Exhibit attached hereto,
the terms and conditions of this Agreement control, This Agreement represents the entire agreement between the Parties
with respect tothe Services described herein and supersedes any prior negotiations, representations oragreements. Any
and all Services furnished byoron behalf nfConsultant prior tothe Effective Date in anticipation of entering into th|a
Agreement are hereby merged into this Agreement,and by signing this Agreement Consultant represents that such Services
conform to all requirements of this Agreement, This Agreement may be amended only by written instrument signed by
both Parties, This Agreement may be executed in one or more counterparts, If either party institutes any act|mn or
proceeding against the other arising from mrrelating tmthe provisions ofthis Agreement,the prevailing party inthe action
or proceeding is entitled to recover all reasonable costs and attorneys'fees from the other party, The laws of the State of
Texas govern this Agreement, and any action or proceeding against Consultant or Owner under or in connection with this
Agreement must be brought in any State or federal court in Dallas County,TexasThis Section shall survive the expiration
nrearlier termination ofthis Agreement.
Each party is signing this Agreement on the date corresponding to the signature of that party's officer or other
authorized representative below,to be effective as of April 1,2014(the"Effective Date"). If no Effective Date isspecified |n
this paragraph, the date this Agreement is signed by the last party to sign it will be deemed the Effective Date of -this
Agreement.
30F5
Site AgggalAndigigy. Owner shall secure all necessary site related approvals,permits,licenses,and consents
necessary tucommence and complete the Services and will execute any necessary site access agreement Consultant will
be responsible for supervision and site safety measures for its own employees, but shall not be responsible for the
supervision or health and safety precautions for any third parties not affiliated in any way with Consultant,including
Owner's contractors,subcontractors,or other parties present at the site(provided such parties are not present at the
request orrequirement of[onsu|tant)
Explorations.Subsurface Subsurface conditions throughout the site may vary from those depicted on togs of
discrete borings,test pits,orother exploratory services. Owner understands[onsu|tmnt'slayout afboring and test
locations is approximate and that Consultant may deviate a reasonable distance from those locations. Consultant will take
reasonable precautions tureduce damage tothe site when performing Services; however,Owner accepts that.invasive
services such aodrilling o,sampling may damage oralter the site, Site restoration|snot provided unless specifically
included inthe Services.
Utilities. Unless otherwise agreed between the parties, Owner shall provide the location and/or arrange for the
marking of private utilities and subterranean structures. Consultant shall take reasonable precautions toavoid damage or
injury tosubterranean structures pr utilities. Consultant shall not be responsible for damage tosubterranean structures or
utilities that are not called ooConsultant's attention, are not correctly marked, including by utility locate service, or are
incorrectly shown on the plans furnished to Consultant provided that Consultant is otherwise acting in accordance with the
terms nfthis Agreement.
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OWNER:
Address for Notice toOwner:
EDLA DS LAND ACQUISITION COMPANY, LP Address: c/o The Howard Hughes Corporation
a Delaware limited partnership One Galleria Tower
13355 Noel laud,Suite 2200
: Dallas,T 75240
an Authorized Signatory Attentions: Valerie Qualls,Asset Management
Telephone: 214-741-7744
Date: Pax: 214-741-3021
Email: valerie.qualls@howardhughes.com
°WVith copv to:
Address: ./o The Howard Hughes CorporatO
One Galleria Tower
13355 Noel Road,Suite 22100
Dallas,TX 75240
Attention. General Counsel
Telephone: (214)741-7744
Fax: (214)742-3021
Email: peter.riley@howardhughes.co
CONSULTANT:: Address for Notice to Consultant:
Address: 2817 McCaw Avenue
TPRPACON CONSULTANTS,INC, Irvine,California 92614
a Delaware corporation Attention: Call Partes
7
Telephone:949-262-0051
0y: r u. Fax: 949-261-6110
s,gnat�re Email: capartenterracon.corn
Its. ,
Printed Name an Title
Bate: i
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EXHIBIT
DESCRIPTION OF SERVICES,COMPENSATION,AND SCHEDULE,OF PERFORMANCE
SCOPE OF SERVICES
Conduct a Limited Site Investigation at The Redlands Mall per the attached Scope of Services.
SCHEDULE OFPERFORMANCE
See"Preparation ofLSI Final Report" inattached Scope ofServices,
COMPENSATION FOR SERVICES
$16,000,00�
ADDITIONAL SERVICES
Services that are not part of this Agreement are "Additional Services" and may be undertaken by Consultant only if
authorized inwriting and inadvance byOwner. Consultant shall be compensated for Additional Services at the rates listed
below unless otherwise agreed inwriting bythe parties.
None.
INVOICING AND PAYMENT
Consultant shall submit its invoices, with supporting documentation, for the Services completed ("Request for Payment")
monthly, All Requests for Payment received by Owner on or before the last day of the month will be paid by the last
calendar day of the following month. Requests for Payment received after the last calendar day of any given month will be
inc|uded 'in the next month's billing cycle.
EXH|D|TA
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FIGURE2 - . M _ __ . ... __ _. . �..
1958 to 1975 City
❑firer-tnryApproximate area of Subterranean Subject: 5.42 Acres
=- -- —_ parking City Owned: 5.65 Acres
t ,
1955 Sanborns
Proposed Soil/Soil-Gas Boring Locations (F borings)
• Proposed Sub-Slab Vapor Locations -