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