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HomeMy WebLinkAboutMacerich Property Management Co Holiday Parking at Cary Park11a gp LICENSE AGREEMENT $ REGARDING HOLIDAY PARKING AT CARY PARK This License Ageement ("AgeemenC) is rntered inm Nis Z'r—tday of Sedur.W , 2010, by and between the CITY OF FRESNO, CALIFORNIA, a municipal corporation, through its Pares, After-school, Recngtion and Community Service Department ("City'), and Macerich Property Malagernsim Company, LLC, a California Limited Liability Company T Macench'). WITNESS WHEREAS, Macencb owns and operates Fashion Fair Mall located at 645 E. Shaw Avenue. Fresno, Cal i fomis; and WHEREAS. the City owns and operates Cary Park (the "Park'), located adjacent to Fashion Fair Mall and depicted on Exhibit "A" herrn; and WHEREAS. Maseru desires to use the gross area of the Park for employee parking during the holiday season, from November 28 to December 28 of each year of this Agreement: and WHEREAS, the City wishesto front Macerich bronse and permission to use the Pak in exchange for certain maintenance and improvements to the Park; and WHEREAS, this project has been wasso si under CEQA and is found to be Categorically Exempt pursuant to CEQA Guidelines section 15301 (minor alteration to existing structures) and 15311 (construction or plecemrnt of minor accessory structures). Furthermore, it has been determined that none of Ne Exceptions to Categorical Exemptions sut fonh in Ne CEQA Guidelines, section 15300.2 apply to this firmest. NOW. THEREFORE, in consideration of the above recitals, which recitals are contractual in nature. the mutual coverers herein contained and such other aW further consideration as is hereby acknowledged. the parties agree os follows: I. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS City Reprcaintativei Randal l Carper, Director Parks, ARer-school, Recreation and Community Services Dickey Youth Development Center 1515 E. Divisadem Street Fresno, CA 93721 Tal: (559)621-29W Macench Representative: Michael F. Serle Senior Manager Fashion Fair Mall 4841 N. First S rcet Fresno, CA 93726 Tel: (559) 224- 1592 2. ROLES CONTRIBUTIONS AND RESPONSIBILITIES A. The City will I. Grant Macedch a non-exclusive license for the use of designated areas of the Pink for Fashion Fair Mall employee parking from November 28 to December 28 of each year of this Agreement. The area of the Park in which parking shall be permitted is hereby referred to as the "Temporary Parking LoI:' 2. Conduct a walk-through of the Temporary Parking Lot with Macerich enter to November 28 of each year of the Agreement ithe "Walk - Though) to establish abase -line condition of the Park to which thic Park must be returned prior to January 31 of the following vem. 3. Amend the existing Conditional Use Permit ("CUP") for the Park on or before November 28, 2010, in allow for use of the Temporary Parking Lot. Use of the Temporary Puking Lot by Macench may not commence until the CUP is amended. If the City fails to amend the CUP by November 28, 2010. Macench shall not be required to expend the $5,000 in improvements set forth in section 2.6.5., until such time that the CUP is amended. B. Macench will: I. At its own determination, provide and pay for security for the Temporary Puking lel. 2. Repair my and all damage incidental to the use of the Temporary Parking Lot. 3. Repair and tenure the mea of the'remporary Parking Lot to the same or better condition that it was in as of the date of the Walk-Thmugh, including but not limited to repairing and replacing any damaged inigamin components and rounding [awn areas. All repah and restoration must be completed by Maces ich and approved by the City by January 31 of each year of this Agreement. In the event the repair and restoration has not been completed by January 31, City will perform the necessary repair and restoration and Macench shall be responsible for the actual war thereof This swoon shall stevivetamimtion or expiration of this Agram t. 4. Mow all turf areas of Cary Neighborhood Park, including the baseball diamonds, weekly dung the sense growing season for turf, which is usually mid-April through the and of Omober. The man and and to the Page 2 of") season will vary year to year. The City and Macerich will mutually agree on start and end dazes each year. 5. Commrncing in January 2011, spend g5.000 on improvements as outlined on Exhibit "e" harem, subject to City review and approval. The fust improvement to he installed shall be clay infields for all three baseball diamonds, with other items on the list to he completed Ponds Ennobling It shall be Macerich's sole responsibility W obtain all necessary pmnits and entitlements for the construction of such improvements, a Macedch's expense. 3. EFFECTIVENESS. DURATION AND TERMINATION This Agreement shall be effective upon its complete execution by the parties' auNonzed agents and shall remain in effect for an initial term running through February 1. 2012. Thereafter, the parties may negotiate an extension of this Agreement for up to three years. Either party may at any time terminate this Agreement with cause upon written notice to the other party following the other party's failure to reasonably cmc an c rnt of van -performance hereunder following thirty (30) days written notice thereof. Termination shall be effectve as of the date specified in said notice of termiration. Upon such termination, all rights and obligations of each party under this Agreement shall cease as of the effective date, except for those specific obligations that shall survive termination as set forth herein. 4. COMPLIANCE WITS GOVERNING LAW Each party shall comply with all fedeml, state and local laws, roles end regulations in its pursuit hereof. No party in its performance of this Agreement shall employ discriminatory practices on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical common. marital statues sex, age, sexual odemation, ethnicity, smtus as a disabled veteran or veteran of the Vietnam era. 5. CAPACITY OF THE PARTIES Each party is. acting in an independent capacity. Nothing in this Agreement and nothing in the course of dealings between the parties hereunder shall be deemed to create any fiduciary relationship, trust, partnership, joint venture, agency or employment relationship, jointly and severally. In addition and without limitation, each party shall be solely responsible for all matters relating to payment of its employees, including but not limited In. compliance with applicable accord verity withholding, workers' compensation insurance, benetiu and all other regulations governing such miners. Personnel supplied by City will not for any purpose he considered employees or agents of Maecncli. The City assumes full responsibility for the actions of such personnel while they are performing services pursuant to this Agreement. and shall be solely respomible for their supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), disability benefits and the like, as applicable. Conversely, personnel supplied by the Macerich will not for any purpose be considered Page 3 of 9 employees or agents of the City. Macnrich assumes full responsibility for the actions of such personnel while they are Inculcating services pursuant to this Agmemml, and shall he solely responsible for their supervision, daily direction and control, payment of salary (including withholding of income taxes and social securityh disability benefits cod the like, as applicable. The City and Macench agree and acknowledge that their relationship is smelly and solely that of an independent contractor to each other. The City's employees andlor agents are not entitled to any employee benefits or insurance,including without limitation any health care, worker's compensation, unemployment or disability benefits, to be provided by Mmorich. Marovich agrees and acknowledges that its employees and/or agents are not entitled to any employee benefits or insurance, including without lim union any health care, worker's compensation, unemployment or disability benefits, to be provided by the City. The parties further agree and acknowledge that each party is solely responsible for determining the method and means by which it will fulfill its obligations hereunder. Each shall be solely responsible for payment of all sales, use, or ather taxes assessed against or associated with the performance of each party's respective obligations or on the exercise of their rights under this Agreement. including without limitation income, payroll or employment-related lazes and payments. Neither patty shall engage any person or =lily to serve in any capacity, or incur any expense or obligation on behalfofdue other without the prior written consent ofboth parties. fi. INDEMNIFICATION AND INSURANCE To the furthest extent allowed by law, Macerch shall indemnity, hold harmless and defend Ne City and each of its officers, officials, employees. agents and authorized volunteers from any and all loss, liability, fines, penalties, forttitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any fime and property damage) inwred by City, Macerich or any other person, and from any and all claims, demands and actions in law or equity (including atramey's fees and lifigation expenses), arising or alleged to have arson directly or indirectly out of the performance of this Agreement. Macerich's obligations under the preceding sentence shall apply to any negligence of City or any of its officers, officials, employees, agents or andoized volumees. but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or by the willful misconduct, of City or any or its officers, officials, employees agents or authorized volunteers. If Macench should subcontract all or any porno¢ of the work to be performed ander Ibis Agreement, Macench shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. The two preceding paragraphs shall survive termination or expiration of this Agreement Page 4 of 9 Throughout the life of this Agreement, Macerich shall pay for and maintain in full force and effect all policies of insurance requirN hereunder with an insurance mmpeny(ied either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A- VI" in Beals har ante Rating. Guide, or (it) authonzed by City's Risk Managerno following policies of insurance are required: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as Insurance Services Office (ISO) form CG 00 01 and shall include insurance for "bodily injury','pmpcny damage' and "personal and advertising injury", including promises and operation, products and completed operations and contactual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than 51.000.000 per occurrence and 52,000,000 general aggregate for bodily injury and property damage. 51,000,000 per occurrence for personal and advertising injury and 52,000,000 aggregate for products and completed operations. (it) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) form CA W 01 and shall include coverage for "any auto" with limits of liability of not less than 81,000,000 per accident for bodily and pmparty damage. (it) WORKERS' COMPENSATION insurance as required under the California Labor Code. (iv) EMPLOYERSLIABILITY insurance with rairchrom limits of 51,0110,000 each accident, SIp00,000 disease policy limit and $1,000,000 disease each employee. Macerich shall be responsible for payment of my deductibles contained in any insurance policies inquired hereunder and the Macerich shall also be responsible for payment of eery self-insured retemiuns. The above described policies of insurance shell be endorsed to provide an unrestricted 30 calendar day wring notice in favor of the City of policy cancellation of coverage, except for the Workers Compensation policy which shall provide a 10 calendar day written notice of such cancellation of coverage. In the event any policies arc due to expire during the term of this Agreement. Macericb shall provide a new certificate evidencing renewal of such policy not Iws than 15 calendar days prior to the expiration date of the expiring poicyEwt Upon issuance by the insurer, broken or agent of a notice of cancellation in coverage, Macench shall file with the City a new certificate and all applicable endorsements for such p ilicy(iied, The General Liability and Automobile Liability insurance policies shall be writen on an occurrence nam form and shall e City, its officers, o icials, agents, employees and volunteers as an additional insured. Such pollcy(tes) of insurance shall be endorsed so Macench'a insurance shall be primary and no contribution shall be required of City. Any Worker' Compensation insurance policy shall conwin a waiver of subrogation as to City, its officers, officials, agents, employees and volumeers. Macench shall have famished City with the certificates) and Page 5 of 9 applicable endorsements for ALL rewired insurance prior to City's execution of this Agreement. Macerich shall bunch City with copies of the actualpolicies upon the reryest of City's Risk Manager and this requirement shall survive termination or expiration of this Agreement. The her that insurance is obtained by Maccrich shall not ba deemed to release or diminish the liability of Macench or its subcenoracooy, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City and its officials, officers, employees, agents and aulhonaed volunteers shall apply be all claims and liability regardless of whether any insurance policies we applicable The policy limits do not act as a limitation upon the amount of indemnification to he provided by Macerich . Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Ma scrich. If at any time during the life of the Age®evt or any extension, Mismich fails to maintain the required insurance in big force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to bill tope and effect and that the premiums therefore have bcen paid for a period safisfacmry to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. If Macench should subcontract all or any portion of the services to be performed under this Agreement. Macench shall require each subcontractor to provide insurance protecmon in favor of City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall he on file with Macerich and City prior to the commenpemrnt of any services by the subcontmcmr. 9. ATTORNEY'S FEES If a panv is required to commence any proceeding or legal action to enforce or interpret any tern, covenant or condition of this Agruc omt, the prevailing party in such proceeding or action sholl be entitled to recover from the other parry itsRheir reasonable attorney's fees and legal expenses. In the event of any mn0ict between the body of this Agre anomt and my exhibiratmchmrnt hereto, the terms and conditions of the body ofthis Agreement shall conuol and take precedence over terns and conditions expressed within the exbibinatrachmmt. Furthermore, any terms or conditions command within any exhibiUa[Iachment hereon which purport to modify the allocation of responsibility or liability between the panics, provided for within the body of this Agreement. shall be null and void. 9. NOTICES Any notice required or intended to be given to a party under the terms of this Agreement shall be to writing and shall he deemed to be duly delivered the curlier of (a) actual receipt by personal Page 6 of 9 delivery to the representative (as defined herein), as the case may be, or in lieu of such Portugal service, by way of Federal Express or other similar courier addressed to such party at the appropriate address .set forth herein, (b) the date of receipt by Escarole to the City Representative or the Macanch Representative, or (c) three (3) business days after the date of mailing (propose prepaid return receipt requested). Either party may change its address for the purpose of this Paragraph by giving women notice of such change to the ofer. 10. BINDING Once this Agreement is signal by all the parties, it shall he binding upon, and shall inure to the benefit of, the probes. and each party's respective heirs, successors, assigns, hswfrrees., agents, servants, emplgecs and mancomatives. ll. ASSIGNMENT Them shall be no assignment by any may of its rights or obligations under this Age amen without the prior written approval of the other party. Any margined assignment by a party, its successors or assigns, shall be null and void unless appeased in writing by the other party. V. WAIVER The waiver by any party of a breach by the other of any prevision of this Agreement shall not constitute a continuing waiver or a waiver of any su eopuent breach of either the above or a different provision of Wis Agreement. No previsions of this Agreement may be waived unless in writing and approved by and signed by all parties m this Agreement. Waiver ofany ane provision herein shall not be deemed to he a waiver of any other provision herein. No scion or omission by either party shall conatimte a breach of this Agreement unless the injured party first notifies the other party of the purported breach in writing seining forth the alleged breach or default and said petty does not cure the same within a reasonable period of time. I he payment of any fee or compensanao or performance of any obligation hereunder by either party shall not constitute a waiver of boy breach by We tuber party or of any of the. rights and remedies which either party may have as a result of such breach. No waiver by edher party of breach of the Agreement .shall be implied farm any failure by the other pony to lake action on accountre of such breach if such breech persons or is pratml. Waivers by either party of any creation. term or condition contained herein shall not be consnual as a w.uver of any subsequent breach of the same covenant, term or condition. 13. GOVERNING LAW AND VENGE This Agreement shall he governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for purposes of the filing of any action regarding the enforcement or imerpremtion of this Agreement and any rights and duties hereunder shall be Framer, California. Page 7 of 9 14. HEADINGS The genion headings in this Agreement arc for convenience and reference only and shall not he construed or held in any way to explain, modify re add to the interpretation or memdng of the provisions of this Agreement. 15. SEVERABILITY The provisions of this Agreement arc severable. The invalidity or unenfurembility of my one provision in this Agrennent shall not affect the other provisions. 16. INTERPRETATION The parties acknowledge that this Agreement in its final firm is the result of the combined efforts of the parties and that, should any Provision of this Agreement be Boned to be ambiguous in my way, such ambiguity shall not be resolved by construing this Agreement in favor or against my Party, but rather by construing the terms in accordance with their generally accepted meaning. IL ENTIRE AGREEMENT It is normally understood and agreed that the foregoing along with the attached Exhibits ci nsfimtes the entire Agreement between the parties. Any modifications or amendments to this Agreement most be in writing signed by an authorized agent of each party. THE REST OF THIS PAGE 15 INTENTIONALLY LEFT BLANK. SIGNATURES APPEAR ON NEXT PAGE. Page 8 of 9 IN WITNESS THEREOF, dIC parries have caused their authorioed agents to erectile this MOU: MACERICH PROPERTY MANAGEMENT COMPANY, LLC. a CaliPomia Limited Liability Company DaW: ❑s: CH'YOFFRESNO, a muriinpal/cotpmadon Da[d: By. -t � Randall Cb er,L or Parks After-school, Recreation andl Community Service Dcpartmem ATTEST REBECCA E. KLISCH City Clerk BY:k)w. Y Depuly 413416 Exhibit A — Depiction or Cary Park Exhibit B — fist of Park Improvemeirm xaarn lSaMG�M1d1VM1a Page 9 of 9 E Santa Ana Ave A' � 1 i 1 E Santa Ana Ave A' � 1 i Cary Park Field Improvements Exhibit a Pdorlty, 1 Bleachers for T -Ball field $ to," 2 Clay Infields - All three diamonds (except T -Ball) 5,000 3 Pitcher's Mounds 3o00 6 New Homemn Fences& Socket for two fields 3,0pp 5 An nouncer's Booths for three fields 1,000 6 Netting above two diamonds 5,000 f Extend Fences for Bullpins 15,000 e OHicial5ign- The Home of Cary Park Baseball 750 B Dirt Base Paths for T- Ball 1000 10 New lackey Box to hold equipment 1,500 tiro Ia r� REPORT TO THE CRYCOUNCIL AGENDA REM NO. IC COUNCIL MEETING 823110 AMM as P UT Sepbmber23. 2010 Ctry MNa FltOM: RANDALL L. COOPER Dreclw Peke, After-schog, Recreation and Community SeMcea DispaNreM BY: PAULA MELIXIAN, Adminisaame Manner Parks, Afla adlod, Recession and Commum y Services Department 1) ADOPT CEPA CATEGORICAL EXEMPTION PURSUANT TO GUIDELINES SECTIONS 15301(minor elerelion of edstlng structures) 815311 (awsswry sbuaurea) 21 APPROVE A TNO YEAR AGREEMENT WRH MACERICH PROPERTY MANAGEMENT COMPANY, U.C. FOR TEMPORARY HOLIDAY SEASON FARMING FOR FASHION FAIR MALL AT CARY PARI( ran rewmmares Mat Me Cry Coure9 instant Ire erased here year agreement wan Monarch Property Management Company, LLC, (dee Fashion Fair Med) contingent upon May CECA process, for tompaary, hdiday, season Peking at adjacent Cary Pak Brat wood resud in enhanced maintenance and fai MpptmanM for part users. EXECUOVE SUMMARY Theatiatl agreementrepsesntsapubliopmW"ftemhip Mr Ma City. Asof Julyte,"Parkspvaion is re lodger ebb M maintain relghbahood peke on a seakly rotation Cary Pak, loomed! a" Ore southernbolaldary of Fashion Fair Mall, has boost diamonds feet am utilized by too Cary Pah LIMB "ue. The agree usent grants Monarch a nonexclusive Ikaese for Me use of desOretetl areas of Cary Pak he temwrer infwMs fq . entering I Macerich at its oar aspera sill repair and restos the area of the temporary parkin Int m ale same or bener wooden Met n was M prior m the holMey shopping sesson. kalding but red Need he repaired and mplectng any damaged inigation mmwnama and reseeding Lawn areas. All repair and reatom on must be completed by Wooden and anointment by the City by January 31 of ease per. In th event the At and resident has be retevenwbe for ey January31,Gywill Pentre Merdcesearyrepanand roma byte Mecerictlshall May Ma rids for Me OMoes. l tat This nreamant M1es been eeNawed aria epprotU DY too coo Atromey arra Wirt Management Oficea. Sten has Performetl a prellminary environmental assessment of this project and has deMemired that it falls W Iho Ma Categmicel Emnption sat fad In CEOA Guidelines semana 15301 syson axampe operation, receir, Mementoes or minor alteration of counting Noulase ret expanding existing uses because Me wmempWsd imposemenls b Me shushing bell Wide will ret errand Meir adding use. and 15311 whits xemple construction Or placement M minor atrunWres accessory to edsting Medusa (e.g. smell perking rola, hnosol to i Goes oaM1 W3110 Dhconnoo REPORT TOME CRTCOUNCIL A"Menl with Mvpi Penney Movement, LLC (Coes Fashion Far Mss) M1a Temppary Pay" See tem Ea 2$ 31110 - Repay pane0b awdeeal. beceum Ore temporary prying let is scomposy to an easmtg fatlMy. FVMemure. Staff hats detarmllvd that none of int exceptons M Categorical Exemp0ons set IoM in Me CEOA GdddMm, sector 15300.2 apply M MIs project. This Agreement a wines ent upon auaessfully amerMing Me Madding Cnrldltionel Use Paned ('CUP') fa Me Park on or belom Nowmber28, 3010. to alimw um as a Wmpwary paAOg bL Um dMe Mmppaury parking lot may rot wmanenw e l the CUP k amerlded. ff tho Cily fails W amm B CUP by Nowmb rn 2010, M mmh shay M M auauked W eXPe int 55.000 in Bald impm monk and sunt baa 1M1Ma CUP e amends]. BACKGROUND Meh will defies alk Ce pOg arms U611111 asci and taPS and extends to park up M 228 care On the park artcanc Saudis. Iryram and Egaum will be from Santa Me Avenue ualWN temporary asphalt amps whits will haw Piper Urlder M allow water to run ihmegh Me amp. hYoendi will pay for be own asperity d the Id, Ivludirg talaelg a combka of cenbad ofhceau ant their security staff M monior the lot. They will also hew a atetionary post so someone wilt be there when Me Mt is Open. Addltiovl securely will be pruaded by portable IMht aware Bet will be promptly Shut down when the Mt b cleared! ngntly. RSCA -IMPACT Thee is no aT impact l0 Me Gmeal FUM as a auwlt d appmW Mis Agmemad. The noighbodeoda Geroundie Cary Peek and Me IMIe league will benefit from Me mM1enced maintenance aro Impmlammts m Me bell fields. ACxhmmt Agreement