HomeMy WebLinkAboutCC AG PKT 2008-11-10 #HAGENDA STAFF REPORT
DATE: November 10, 2008
TO: Honorable Mayor and Clty Council
THRU: David Carmany, City Manager
FROM: Lee Whittenberg, Director of Development Services
SUBJECT. APPROVE LICENSE AGREEMENT WITH ROSSMOOR
SHOPS, L.L.C. FOR PARKING AND COMMON AREA
ACCESS - NORTH SEAL BEACH COMMUNITY
CENTER
SUMMARY OF REQUEST:
The City Council is asked to adopt Resolution No
Agreement with Rossmoor Shops L.L.C. to allow
parking and common areas in conjunction with the
Seal Beach Community Center.
BACKGROUND:
5803 approving a License
city use of shopping center
City operations of the North
The City entered into a "Revocable License Agreement" for city use of shopping
center parking and common areas in conjunction with the City operations of the
North Seal Beach Community Center with the owners of Rossmoor Shopping
Center in March, 1983 ("1983 Agreement"). Over the past few years Rossmoor
Center has completed major reconstruction within the shopping center and the
parties now desire to enter into a new agreement and to replace the 1983
Agreement in its entirety.
Staff has met with Rossmoor Center representatives several times to discuss a
new agreement. Terms that have been agreed upon were generally the same as
under the 1983 Agreement except for the following:
^ The annual fee the City will pay to the Center will be reduced from the
previous base fee plus a percentage of the "Common Area" maintenance
and utility fees to a flat fee of $8,500 per year, with an annual adjustment
on January 1 of each year of 3% per year. This will allow the Ciry to
budget apre-determined amount, as opposed to the previous situation
when it was not easy to anticipate the percentage of the "Common Area"
maintenance and utility fees on a yearly basis.
Agenda Item ~"~
Page 2
^ License will take effect on January 1, 2009 and will continue in force until
terminated in accordance with the terms of the License (termination
requires a 30-day written notice).
^ Updates "Indemnity" provisions in accordance with current City
requirements.
The Agreement has been executed by Rossmoor Shops, L.L.C. and is now
before the City Counal for final approval.
FINANCIAL IMPACT:
Minimal impact to the General Fund. The new License Agreement will allow the
City to budget an exact amount each year for the use of the area in accordance
with the terms of the License Agreement.
RECOMMENDATION:
It is recommended that the City Council adopt Resolution No. 5803, approving a
license agreement with Rossmoor Shops, L.L.C. to use shopping center parking
facilities and common areas.
SUBMITTED BY:
ee Whittenberg
Director of Development Se es
NOTED AND APPROVED:
~-~ '~-3
David Carmany
Ciry Manager
Attachments•
A City Council Resolution No 5803, A Resolution of the City Council of the City of Seal
Beach Approving a License Agreement with Rossmoor Shops, L.L.C. to Use Shopping
Center Parking Facilities and Common Areas
B. "License Agreement" with Rossmoor Shops, L L.C.
RESOLUTION NUMBER 5803
A RESOLUTION OF THE CITY COUNCIL OF THE CYTY OF SEAL
BEACH APPROVING A LICENSE AGREEMENT WITH
ROSSMOOR SHOPS, L.L.C. TO USE SHOPPING CENTER
PARKING FACILITIES AND COMMON AREAS
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY
RESOLVE
SECTION 1 The City Council hereby approves the license agreement
between the City of Seal Beach and Rossmoor Shops, L L C.
("Agreement')
SECTION 2 The Council hereby directs the City Manager to execute the
agreement
PASSED, APPROVED AND ADOPTED by the City Counctl of Seal Beach, at a
meeting hereof held on the 10th day of November , 2008 by the following
vote
AYES COUNCILMEMBERS
NOES COUNCILMEMBERS
ABSENT COUNCILMEMBERS
ABSTAIN COUNCILMEMBERS
Mayor
ATTEST•
Ciry Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of Seal Beach, California, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 5803 on file in
the office of the City Clerk, passed, approved, and adopted by fhe City Council of
the City of Seal Beach, at a regular meeting thereof held on the 10th day
of November , 2008
City Clerk
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
(space above for recorder's use)
LICENSE AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Rossmoor Shops, L.L.C.
2811 Wilshire Blvd., Suite 640
Santa Monica, CA 90403
(310) 264-4799
This License Agreement ("License") is made as of November 10. 2008 (the "Effective
Date"), by and between Rossmoor Shops, L.L.C. ("Owner"), a California limited liability
company, and the City of Seal Beach ("City"), a Califonna charter city, (collectively, "the
Parties'.
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RECTTALS
1. City owns and operates the North Seal Beach Community Center ("Community
Center', which is located at 3333 St. Cloud Drive and is immediately adjacent to the Shops at
Rossmoor ("Shopping Center"), as depicted in the attached Exhibit A, which is hereby
incorporated by this reference.
2. Owner owns and operates the Shopping Center.
3. City and Owner aze parties to a Revocable License Agreement dated March 1,
1983 ("1983 Agreement"), which grants the City and the City's officers, directors, agents,
servants, employees, suppliers, concessionaries, invitees, and permittees (collectively "City's
Permittees") a license to use the Shopping Center pazking facilities and to access the Community
Center over the Common Areas of the Shopping Center.
4. The Parties now desire to enter into a new agreement subject to the terms and
conditions stated in this License, which they intend to replace the 1983 Agreement in its entirety.
NOW THEREFORE, in consideration of the Parties' performance of the promises,
covenants, and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
Section 1 Definitions
As used in this License, the following words and phrases shall have the meanings set
forth in this Section 1.
1.1. "Common Area": all azeas and facilities within the exterior boundaries of the
Shopping Center that aze neither held for nor appropriated to the occupancy of an individual
tenant of the Shopping Center; including without limitation, all vehicle parking areas, driveways,
points of ingress and egress, rights-of--way, sidewalks, malls, planted areas, public restrooms,
maintenance buildings and spaces. Notwithstanding the foregoing, the Common Area does not
include areas and faculties held for or appropriated to gasoline service stations or automobile
wash racks, as such area and facilities have been or may from tone to time be changed, modified,
altered, increased, or reduced.
1.2. "Licensed Pazking Area". the area comprised of approximately 35 automobile
parking spaces in the parking area of the Shopping Center that is located generally northeast of
the Community Center, as depicted in Exhibit A.
1.3. "Shopping Center": the area and facilities that aze owned by Owner and
commonly referred to as the Shops at Rossmoor, as depicted in Exhibit A and as such area and
facilities have been or may from time to time be changed, modified, altered, increased, or
reduced.
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Section 2 Grant of License
2.1. Grant. Owner grants to City and City's Permittees a license to pazk automobiles
in the Licensed Pazking Area and to access the Community Center by means of the Common
Area for the purpose of engaging in City functions at the Community Center or engaging in
activities or attending functions at the Community Center permitted by the City. The license
granted to City and City's Pemuttees shall be used in accordance with the terms and conditions
set forth herein.
2.2. License in Common. Use of the license granted by this Section 2 shall be in
common with Owner, all Shopping Center tenants, and their respective employees, sublessees,
licensees, agents, suppliers, customers, and invitees.
2.3. No Leasehold. No legal title or leasehold interest in the Licensed Parking Area or
Common Area is created or vested in City by the grant of this License.
Section 3 Annual Fee
3.1. Annual Fee. City shall pay to Owner an annual fee of $8,500, which shall be paid
in 12 equal monthly installments due on the 1st day of each month. Nothing in this License
obligates the City make any other financial payment or contribution, including without limitation
any Common Area maintenance or utilities, apart from the annual fee required by this Section 3.
3.2. Annual Adjustment. The annual fee shall be increased by 3% each yeaz,
beginning on January 1 of that yeaz.
Section 4 Term
4.1. The operating term of this License shall begin on January 1, 2009 and continue
thereafter until terminated in accordance with the terms of this License.
Section 5 Termination
5.1. Termination without Cause. Either Party may terminate this License without
cause upon at least 30 days written notice to Owner.
5.2. Termination for Cause. Either Parry may terminate this License due to other
Party's default, provided that the ternunating Parry shall first provide 30 days advance written
notice to the defaulting party and an opportunity to cure the default.
Section 6 Relationship of the Parties
6.1. The only relationship created by this License is of that of licensor and licensee.
Neither City nor any of its officers, employees, or agents shall have control over the means of
service or means of production of Owner or any of its officers, agents, or employees. Owner is
solely responsible for all aspects of its property and operation. Owner shall not, at any time or in
any manner, represent that it or any of its officers, agents, or employees aze in any manner agents
or employees of City.
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Section 7 Use of Premises
7.1. Owner's Control. Owner shall have the sole and exclusive control of the common
Area, including the Licensed Parking Area, and shall have the right to make and promulgate and
from time to time change reasonable rules and regulations for the use of the Common Area.
Owner shall give City at least 10 days notice of any change in such rules or regulations. Owner
may exclude, restrain, or limit any person from the use or occupancy of the Common Area,
including the Licensed Parking Area; excepting City and City's Permittees while engaging in the
bona fide use of the same in accordance with the terms of this License and the rules and
regulations promulgated by Owner.
7.2. Unauthorized Use. If Owner determines that City or City's Permittees aze using
any portion of the Common Area, including the Licensed Pazking Area, in an unauthorized
manner, City shall, upon demand of Owner, take appropriate action to remove or restrain such
persons. Nothing herein shall limit owner's right to remove or restrain any person engaged in
the unauthorized use of the Common Areas, including the Licensed Pazking Area.
7.3. No Waste or Nuisance. City shall not commit any waste or any public or private
nuisance upon Common Area or Licensed Pazking Area.
Section 8 Maintenance of Common Area
8.1. Owner shall maintain the Common Area, including the Licensed Pazking Area in
a reasonably safe and clean manner, and shall be solely responsible for the cost of such
maintenance and all utilities for the Common Area and Licensed Pazking Area. Owner may
reasonably limit the access of City and City's Pemrittees to the Common Area and Licensed
Pazking Area when necessary for the purpose of maintaining the Common Area and Licensed
Parking Area.
Section 9 Indemnity
9.1. Indemnification of Owner. To the fullest extent permitted by law, City shall
indemnify, defend and hold hamrless Owner, its governing boazd and the individuals thereof, and
all its officers, agents, employees, and representatives from and against any and all demands,
debts, liens, claims, losses, damages, liability, costs, expenses (including, but not by way of
limitation, fees and costs actually incurred, whether or not litigation has commenced), judgments
or obligations, action, or causes of actions whatsoever, for or in connection to any injury,
damage or loss (including, but not limited to bodily injury, death, personal injury, property
damage, violation of any applicable Municipal, County, State, and Federal laws and regulations,
Court Rules or ordinances, or any other type of loss) sustained or claimed to have been sustained
by any person or persons, or corporation, or public or private entity arising out of the
performance or nonperformance of services, operations, duties, and other obligations of the City,
its officers, agents, employees, representatives, and subcontractors under this License. The
provisions of this indemnification clause shall not be limited to the availability or ability to
collect insurance coverage, and shall survive the termination of this agreement.
9.2. Indemnification of City. To the fullest extent permitted by law, Owner shall
indemnify, defend and hold harmless City, its governing boazd and the individuals thereof, and
all its officers, agents, employees, and representatives from and against any and all demands,
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debts, liens, claims, losses, damages, liability, costs, expenses (including, but not by way of
limitation, fees and costs actually incurred, whether or not litigation has commenced), judgments
or obligations, action, or causes of actions whatsoever, for or in connection to any injury,
damage or loss (including, but not limited to bodily injury, death, personal injury, property
damage, violation of any applicable Municipal, County, State, and Federal laws and regulations,
Court Rules or ordinances, or any other type of loss) sustained or claimed to have been sustained
by any person or persons, or corporation, or public or private entity arising out of the
performance or nonperformance of services, operations, duties, and other obligations of the
Owner, its officers, agents, employees, representatives, and subcontractors under this License.
The provisions of this indemnification clause shall not be limited to the availability or ability to
collect insurance coverage, and shall survive the termination of this agreement.
Section 10 Party Representatives
10.1. City's Representative. The City Manager is City's representative for purposes of
this License.
10.2. Owner's Representative. Jim Lynch is Owner's representative for purposes of
this License.
Section 11 Notices
11.1. Form of Notice. All notices permitted or required under this License shall be
deemed made when personally delivered or when mailed 48 hours after deposit in the U.S. Mail,
fast class postage prepaid and addressed to the Parry at the following addresses:
To City: City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attn: City Manager
To Owner: Rossmoor Shops, L.L.C.
2811 Wilshire Blvd., Suite 640
Santa Monica, CA 90403
Attn. Windy Leigh
With a copy to: Jim Lynch
12501 Seal Beach Blvd., Suite 200
Seal Beach, CA 90740
11.2. Actual Notice. Actual written notice shall be deemed adequate notice on the date
actual notice occurred, regazdless of the method of service.
Section 12 Assignment Prohibited
12.1. This License is personal to City and City's Permittees and shall not be assigned,
without the Owner's prior written consent, which consent shall not be unreasonably withheld.
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Section 13 Miscellaneous
13.1. Entire Agreement. This License contains the entire agreement of the Parties with
respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements; including without limitation, the 1983 Agreement. This License may only be
modified by a writing signed by both parties.
13.2. Applicable Law. This License shall be governed and interpreted in accordance
with the laws of the State of California.
13.3. Construction. This License shall be construed without regazd to any presumption
or other rule requiring construction against the parry who drafted it.
13.4. No Brokers. Each party represents to the other that it has not engaged or used the
services of any broker, finder, or salesperson in connection with this License.
13.5. Counterparts. This License may be executed in multiple counterparts each of
which shall be deemed an original for all purposes.
13.6. Severability. The invalidity in whole or in part of any provisions of this License
shall not void or affect the validity of the other provisions of this License.
13.7. Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel, or otherwise.
13.8. Prohibited Interests. Owner maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely for Owner, to
solicit or secure this License. Further, Owner warrants that it has not paid nor has it agreed to
pay any company or person, other than a bona fide employee working solely for Owner, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this License. For breach or violation of this warranty, City has the
right to rescind this License without liability. For the term of this License, no member, officer or
employee of City, during the tens of his or her service with City, shall have any direct interest in
this License, or obtain any present or anticipated material benefit arising therefrom.
13.9. Attorneys' Fees. If either Party commences an action against the other Party,
legal, administrative or otherwise, arising out of or in connection with this License, the
prevailing Party in such litigation shall be entitled to have and recover from the losing Party all
of its attorney's fees and other costs incur-ed in connection with such action.
13.10. Exhibits. All exhibits referenced in this License aze hereby incorporated into the
License as if set forth in full herein. In the event of any material discrepancy between the terms
of any exhibit so incorporated and the terms of this License, the terms of this License shall
control.
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IN WITNESS WHEREOF, the Parkes hereto, through then' respective authorized
representatives have executed this License as of the date and year first above written.
CITY OF SEAL BEACH
sy:
David Germany, Clty Manager
Rossmoor Shops, L.L.C.
By
M yn Jackrel
Executive Vlce President
Attest:
By
Linda Devine, Clty Clerk
Approved as to Form:
sy.
Quinn Barrow, Clty Attorney
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Exhibit A
Depiction of Shopping Center, Community Center,
and Licensed Parl~ng Areas
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