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Resolution No. 8208t � • • E � 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8208 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND OWENS-BROCKWAY GLASS CONTAINER INC. FOR THE MALBURG GENERATING STATION PROJECT WHEREAS, the City of Vernon ("City") is proceeding at this time to develop a 134 MW Combined Cycle Power Plant officially named the Malburg Generating Station (the "Malburg Project") for the purpose of installing additional generating capacity that will yield an efficient, cost-effective, and reliable source of electric generation to the City of Vernon's inhabitants; and WHEREAS, during the construction of the Malburg Project, the Director of Utilities has determined that the City needs the use of real property near the Malburg Project area for construction -related uses; and WHEREAS, an agreement has been negotiated with Owens - Brockway Glass Container Inc., the owner of real property located at 2923 Fruitland Avenue, on a month -to -month basis commencing June 1, 2003, at the rate of Six Thousand Five Hundred Dollars ($6,500) per month; and WHEREAS, by letter dated May 29, 2003, Bruce V. Malkenhorst, City Administrator/City Clerk, recommended that a License Agreement with Owens -Brockway Glass Container Inc. be approved; and WHEREAS, the City Council desires to approve and authorize the execution of the License Agreement and the payment of fees in accordance therewith for the rental of the property; and WHEREAS, the City Council of the City of Vernon has 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the License Agreement with Owens -Brockway Glass Container Inc., to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the License Agreement with Owens -Brockway Glass Container Inc., a copy of which is attached hereto as Exhibit "A" and made a part hereof, and authorizes the payment of fees in accordance with the terms of the Agreement. SECTION 3: The City Council of the City of Vernon hereby authorizes the City Administrator to execute the License Agreement for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed License Agreement to: Owens-Illinois Glass Containers North America Attn. Mike Korte, Administrator Manager -Western Region Operations 14700 W. Schulte Road Tracy, CA 95377 - 2 - 1 2 3 4 5' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 4tn day of June, 2003. ATTEST: BRUCE V. MALKENHORST, City Clerk LEONIS C. MAL URG, MEFyor - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8208, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, June 4, 2003, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) 1J1\V V1J V • 1"111L 1lJJlV11V1\pJl, V1l..y �1L,.1 J1 - 4 - EXHIBIT FAW JUN-03-2003 TUE 03:28 PM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 02110 M, 3, 21003 1,39PN1 OI-CALIFORNIA CONTAINERS OAVAND NO. 5572 P- 3 " CI+fJA.9 lEEMMENT o This License Agreement ("Agreement") is entered into this 3 day of by and between OWENS-EaOGKWAY GLASS CONTAINER INC,, a DelawareLeo p� aan� ("I ic0rosor"), and the CITY OF VEIRNoN, California, a Califormunicipal corporation ('Licensee" ). nia RECITALS: WHEREAS, Licensor owns that certain improved real property located at 2923 Fruitland Avenue, Vernon, California (anus fronts 60'" st.) (the "premises"), containing approximately 60,400 square feet 0.16 acres) of parking lot space; and WHEREAS, Licensor desires to license said parking lot, as shown on Exhibit A (the "Licensee) Area,% to Licensee on a month -to -month basis, and Licensee desires to licenso the Licensed Area from Licensor on a month -to -month basis for use by Its employees, its contractors, subcontractors and their employees in connection with the construction of the Malburg Generating Station Project (the "project"); and NOW, 'THEREFORE, in consideration of the foregoing rocitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Liecnsnr and licensee hereby agree as follows: AGREEMENT: SECTION 1.tc�NSI: o� SHE u��IvsFD Ali °n t't L!cerised ALU- Lloonsor grants to Licensee, for the sole benefit of Licensee, 01) excluslvg, non-agsignable IicOny9 to Use the Licensed Area for the sole purpose of Parking passenger automobilDs and storage of material and equipment in connection with Licenses's ennstruction of the Project and for no other purpose (the "Permitted Use"). the use of the foregoing license (the "License") by Licensee is conditioned upon Licensee's ('arnpliance with each and every agreement of Licensee sot forth herein. Licensee hereby arccpts the 1-1", nsed Area in its currant "AS IS" condition and acknowledges that there hove baen no representations or warranties, express or implied, made by or on behalf of Llimm-or with respect to the Premises or the Licensed Area, or with respect to the suitability of the Licensed Area for the conduct of Licensee's business. SECTION 2 1EM The'Grill ("Initial Term") of this License to use the Licensed Area shall commence On June 1, 20p3 ("C;ornmancernent Date") and, unless earlier tormineted by Licensor for Licensee's default hereunder, shall automatically terminate on .tune 30, 2003 ("Expiration JUN-03-2003 TUE 03:28 PM OLIVO & PLASCENCIA FAX NO, 562 869 1883 P. 03/10 SUN, 3, 2603 1:39PM OI-CALIFORNIA CONTAINERS OA60 NO 5572 Pw q Oete"). Theroafter, this License shall automatically renew on a month -to -month basis (eacrl a "Renewal Term") unless wither party provides the other party of notice of non. renewal no less then five (6) days prior to the expiration of the Initial Term or such Rortewal Term, as applicable. The Renewal Terms, if any, and the Initial Term is collectively referred to herein as the "Term, - SECTION 3 IMENN.X Wcensee shall pay Licensor a license fee for Its use of the Licensed Area in the amount of $15,500,00 per month, payable without notice or demand and without any set Off or deduction whatsoever on or prior to the first day of each month. .Any partial month hereunder shall be prorated, Licensee shall also be responsible for all other monetary Obligations sot forth in this Agreement. A five percent (5%) late fee will be charged if the licerlsa fee is, not received by Licensor on or before the Wfi day of the month. Any license fee peYahle by Licensee to Licensor that is not paid within seven (7) days of when dye shall bear interost from the due date until paid at a rate equal to the lesser of: (a) the highest rate permitted by law; or (b) ten percent 0 0%) per annum. SECTION 4 lam. p..�1M1JCtS'rAIIPN Licensee agrees and acknowledges that its use of the Licensed Area Is at its sole rink, end Licensee hereby wolves, releases and absolves Licensor, Its parent company affiliates, shareholders, officers, agents, employees, licensees and Invitees (the "Licensor Pattie$") from any and all cast, loss, damage, expense, and liability, whether foreseeable or not, from any Cause whatsoever, that Licensee may suffer to Its personal property locatad onywhere in the Licensed Area or that It or its agents, employees, principals, and Invitees MRV suffer as a direct or indirect consequence of Licensee's use of the Licensed Area or OOcess areas to the Licensed Area or for any other reason arising from or related to this Agreement. In addition, Licensee hereby agrees to indemnify, defend, protect, and hold Licensor and the Licensor parties harmless from and against any loss, cost (including, but not limited to, attorneys' fees), damage, liability, expense, claim, or action or cause of action of any third party (Including, but not limited to, employees, agents, contractors, ►0vitecs and licensees of Licensee), whether foreseeable or not, resulting as a direct or indirect Coryaequence of or use of the Licensed Area Of access areas to the Licensed Area or for any other reason arising from or related to the Agreement. Licensee's indaninificntion obligations hereunder shall survive the expiration or earlier termination of this Agreoment, l icerisee hereby waives any immunity provided to it under the Constitution, statutes, laws, regulations or other pronouncements (including any subsequent amendrnents or modifications) of the State of California respecting workers' Compensation to the oxtont necessary to provide Licensor and Licensor Parties with the full benefit of Licensee's Indemnity obligation contained herein, SECTION 5 INSi1RANQ Licensee shall maintain commercial general liability insurance covering Licensee against ela)ms of bodily injury, personal injury and property damage arising out of 2 JUN-03-2003 TUE 03:29 Phi OLIVO & PLASCENCIA FAX NO, 562 869 1883 P. 04/10 JUN. 3, 2003 1.39PM OI-CALIFORNIA CON7AIN'Eas W AND N0, 5572 P, 5 Licensee`s operations, assumed liabilities or use of the Licensed Area, a broad form commercial general liability endorsement covering the insuring provisions of this Agreement and the performance by Licensee of the indemnification sot forth In Section 4 of this Agreement for limits of liability not less than Five Million Dollars (65,0p0,000) each occurrences and Five Million Dollars 1*5,000,000) annual aggregate for bodily injury and Property damage liability as well as personal injury liability. Licensee shall maintain Worker's Compensation insurance having 11m;t8 no less than us regUiced by applicable law that shall contain a walvsr of subrogation against licensor and Gconsor parties, In any event, Licensee hereby agrees to waive any workers Compensation subrogation claims, liens, or demands, which could be asserted against Licensor or Licensor Parties by Licensee, its employees, or its Insurance carrier, and further agrees to indemnity Licensor and Licensor Parties, regardless of Llcensor's or licensor Parties' riegllgence, for any and all workers compensation subrogation claims, liens, or clemands, asserted by licensee, Its employees or Licensee's insurance carrier. The fninimum limits of policies of insurance required of Licensee under this Agreement shall in no event limit the liability of Licensee under this Agreement. All insurance shall (i) be i55ued by an insurance company having a rating of not less than A - by A.M. Best Company or which is otherwise acceptable to Licensor and licensed to do businr ss in the State of California; and (if) provide that said insurance shall not be canceled Or coverage changed unless thirty 130) days prior written notice shall have been given to Llpa so( and any mortgagee or ground or underlying 1619'4r of Licensor. In addition, the liability insurance shall name Licensor and any other party specified by Licensor as an additional insured and shall specifically cover the liability assumed by licensee under this Agreeanen't, shall be primary insurance as to all claims thereunder and shall provide that Wny insurance obtained by Licensor is excess and Is non-contributing with any Insurance requtroment of Licensee and shall contain a cross -liability endorsement or severablllty of interest clause acceptable to Licensor. Licensee shall deliver all policies or certificates thereof to Licensor concurrently with Licensee's execution of this Agreement. Licensee agrees to havo its Insurer(s) issuing property damage insurance waive any rights subro+gatit)n ttlat such company may have against Licensor. Licensee hereby waives anyof right Licep5oa may have against Licensor as a result of any loss or damage, to the extent such lass or damage is insurable under the policies of insurance described above in this Soction 5. SECTION 6 USE QEjLQLNsj D AREA 6" -omitted Use, Licensee shall use, in compliance with ell applicable laws, the Licensed Area solely for the Rormittod Use and for no other purpose. 6' Ii ea- ws, Licensee shall not use the Licensed Area or permit anything to be done in or about the Licensed Area which shall in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hatoo'teer be in force. Licensee shall, at Its sole Cost and expense, promptly comply with " laws, statutes, ordinances and governmental rules, regulations and requirements now in farce Or vwhich may hereafter be in force relating to or affecting the condition, use or or:oupanvy of the 1-I0ensed Area, 3 JUN-03-2003 TUE 03:29 Phi OLIVO & PLASCENCIn FAX NO. 562 869 1883 P. 05/10 JUN. 3.2003 1:40PM 0I—CALIFORNIA CONTAINERS OAKLAND W.5512 P. 6_e 6.3 Other_ estr�cti Licensee agrees o°not to utilize any flammable, rnbustibie or ether maiterials in the Licensed Area =het would Increase the cost of Lioonsot's insurance, and not to utilize any toxic or hazardous material or waste in the Licensed Area. Licensee shall not do anything or suffer anything to be done in or ,about the Licensed Area which will in any way conflict with any law, atetute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated, licensee and Licensee's agents, serven contractors, grad visitors shall observe faithfully and Comply 3trIctly with9, employees, the rul regulations that Licensor or L.icensor's agents may from time to time adopt Ll a see shallll not operate a feet -for -use parking area nor permit the general public to park or otherwise use the Licensed Area unless it obtains tho prior written approval of Licensor. SECTION 7 ADpIrIgNS MIMS Licensee tads eat make any Improvements, eiterations, additions or changes to the Licensed Area (collectively, the "Alterations") without first procuring the prior written cOnseDnt of Licensor to such Alterations, which consent may be given, withheld or conditioned in Licenser's sole and absolute discretion, Any Licensor approved Alterations made by Liconses to the licensed Area shall Wong to Licensor and shall remain with the Licensed Area upon tt• a expiration or sooner termination of this Agreement unless Licensor requires their removal, in which case any such Alterations shall be: removed by licensee, at L`osnsee,s safe cost and expense, Immediately upon Licenser's request. In addition, Lieomee ,Rhall repair any damage to the Premises caused by such removal, SECTION B MAIN TEE ANri� EPAIRS Licensee acknowledges that Licensor shall have no responsibility for management of the Prarnlaos, Llcen$aa, at Licensee's sole cost and expense, will maintain and take good Care of tho Licensed Area Including any fixtures and appurtenances thereto, and make any and all repairs thereto (whether structural or non-structural, foreseen or unforeseen) a5 and wheln needed to preserve them In good working order and condition. Licensee acknowledges and agrees that In no event will Licensor be obligated to make any repairs, alteratidns or improvements to the licensed Area or to otherwise prepare the Licensed Area for Licenseee's uae, All damage or Injury to the Licensed Area or to any other part of the Licensed Area or Promises, or to its fixtures, equipment and appurtenances, whother requiring structural or nonstructural repairs, Caused by or resulting from misuse or negligent conduct or dmisslan of Licensee, Licensee's agams, employees, or invitees will be repaired, at Licensee's $olo cast and expense, by Licensee to Licensoe's reasonable satisfaction, i_icaneee also will repair all damage to the Premises and the Licensed Area caused by tho moving of Llcensee's property. If at any time any public authority requires tho installation of any type of sign or signal (including, but not. limited to, warning signs) upon or near the Licensed Area during the Torm, the Licensee shall pay any and all costs of insrallerlo,,, maintananco, and Inspection of said clan/s or signal/a. 4 JUN 03-2003 TUE 03:30 PM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 06/10 JUNV 2003 HOPM 0I-CALIFORNIA CONTAINER`S WLAND NO, 5572 P. 7 SECTION 9 NOTIC" Alt notices, demands, statements, designations, approvals or other communications (cblictctively, "Notices") given or required to be given by either party to the other hereunder shell be in writirig, $(calf be sent by United States certified or registered mail, postage prepaid, return receipt requested, or by a nationally recognized overnight delivery service, or by facsimile transmission with retention of written confirmation, or delivered personally to Licensor and Llegnsee at the following addresses, or to such other place AS Licensor or Licensee may from time to time designate in a Notice to the other; Licensor; Owens-Rro&wey Glass Container Inc. 14700 W. Schulte Road Tracy, California 96377 AM' Michael Korte Fox! (209) 83&8292 With a copy to.. Owens-Illinois, Inc. One SeaGate Toledo, Ohio 43666 Attn: Associate General Counsel Fax; (419) 247-1463 Licensee; City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attn., City Administrator Fax; 323-826.14,38 SECTION 10 QSSI®LAMENT AN lNg This License is personal to Licensee and Licensee shall not assign, mortgage, pledge, hYp0thscf1t6, encumber or permit any lien to attach to, or otherwise transfer this Agreement or any interest hereunder, permit any assignment or other such foregoing transfer of this Agreement or any Interest hereunder by operation of low, sublet or Sublicense the Licensod Area or any part thereof, or permit the use of the Licensed Area by MY pereons other than Licensee, Subcontractors, and their employees, its employees and Licensee's Contractors or in connection with the construction of the project, WithOtAt the prior written Consent of Licensor, SECTION 11 Ml OUS (a) Tlme is of tho essence of this Agreement and each of its provisions. (b) If default shall be made in any of the covenants or agreements of Licensee containt2d in this Agreement, or in case of any assignment or transfer of this License by 11 JUN-03-2003 TUE 03:30 PM OLIVO & PLASCENCIA FAX N0, 562 869 1883 P. 07/10 . JUN. 3.2003- 1.40PM 01-CALIFORNIA CONTAINErS W AND N4.5572 P. 8 operation of law, Licensor may at its option, terminate this License by serving three (3) days' notice in writing upon Licensee. No waiver by Licensor of any violation or breach of any of the t4rrna, provisions end covenants herein contained shall be deemed or construed to constitute a waiver of any other or later violation or breach of the Same or any other of Ahe terms, provisions and covenants herein contained. Forbearance by Licensor in enforcemetrt of one or more of the remedies herein provided upon a breach by Licensee shall not be dearned or construed to constitute a waiver of such breach. (0) This Agreement shall be construed and enforced In accordance with the laws Of the State of California. (tl) In the event of any litigation between the parties respecting this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party its reasonable attorneys' fees and costs as part of the Judgment. (e) Its Is understood and agreed that there are no oral agreements between the PArties ileretO Wecting this Agreement and this Agreement supersedes and cancers any and all I)Mvious negotiations, arrangements, brochures, agreements and understandings, if any, between the parties hereto and none shall be used to interpret or construe this Agreement. This Agreement and the License granted hereby may only be amended in a writing signed by the parties duly authorized rapresentativet:s, which such writing shalt specifically reference this Agreement. (fI Llcensde shall not record this Agreement nor any memorandum, affidavit or other writing with respect thereto and the recording thereof in violation of this provision shall make this Agreement null and void at Lic0nsor's election, (0) If there is more then ono entity which constitutes Licensee, the obllgetlons imposed upon Licensee under this Agreement shall be joint and several. (h) Upon the expiration of this Agreement or the earlier termination of this Agreement by Licensor, Licensee shall relinquish possession of the Licensed Area and have removed all of its property from the Licensed Area and shall deliver up and surrender the Licensed Area to Licensor in as good a condition as when Licensee took possession and otherwise in the condition require3d in this Agreement. For each day or part of a day after the end of the Term or sooner termination of thla Agreement that Licensee shall have failed to do the foregoing, Licensee shall, notwithstanding anything to the contrary set forth in this Agreement and in addition to any other obligation to pay money to Licensor contained heroin, Pay to licensor One Hundred Dollars 0100.00) (for, each such day or part of e day). In addition, if Licensee fails to so surrender the Licensed Area upon the expiration or sooner termination of this Agreement, Licensee agrees to indemnify, defend and hold Licensor harmless from all cost, loss, expense or liability, including, without limitation, claims made by any Succeeding licensee or prospective tenant and real estate brokers' claims and attorneys' foes, (i) If any teal, provision or condition contained in this Agreement, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be Valhi ar:ti enforcesbhl to the fullest extent possibly permitted by law, JUN-03-2003 TUE 03:30 PM OLIVO & PLASCENCIA FAX NO. 562 869 1883 P. 08/10 JUN.. S. 2603 1:vPM 01-CALIFORNIA CONTAINERS OAKLAND NO, 5572 • P. g 0) Notwithstanding anything in this Agreement to the contrary, Licensee for the Collection of a judgment (or other Judic)al process) requiring he payment of money by Licensor in the event of any breach by Licensor hereunder or any claim, cause Of action or obligation, contractual, statutory ne otherwise by Licensee against Licensor concerning, arising"olrt of or relating to any matter relating to this Agreement and all of the covenants and conditions or any obligations, contractual, statutory or otherwise set forth herein, shall be limited $olely and exeluelvely to an amount which is equal To the lesser of (1) Licwnaor's interest in the Licensed Area, or (H) the equity interest Licensor would have In tho Lloensed Area if the Lleensed Area were encumbered by a third -party debt equal to OightY percent (80%1 of the value of the Licensed Area, as such value is determined by Licensor, No other property or assets of Licensor, or any Licensor Parties shall be subject to levy, e►cecutlon or other enforcement procedure for the setisfaotion of Licensee's remedies under or with respect to this Agreement, Licensor's obligations to Licensee, whether contractual, statutory or otherwise, the relationship of Licensor and Licensee hereunder, or Licensee'$ use or occupancy of the Licensed Area. Licensee further understands that any liability, duty or obligation of Licensor to Licensee, shall automatically cease and terminate as of the date that Licensor or any of Licensor Parties no longer have any right, title or interest In or to the Licensed Area. (k) This License is not to be construed as In any way granting to Licensee any leasehold or other real property interest in the Licensed Area, It being intended that this AgreoMr nt merely grants to Hoensee this License to enter upon and use the Licensed Area during the Term In accordance with the torms and conditions hereof and shall not be deemed to grant to Licenser, a leasehold or other real property interest in the Licensed Areb. (1) Licensee and Licensor represent and warrant that neither has had any dealings with arty realtora, brokora or agents In connection with the negotiation of this AgreQMont, other than Jack Cline of Lee & Associates on behalf of Licensor, and WKinnoY Travers Realty Corporation, dba McKinney Travers Oncor international on behalf Of Liconaea►. Licensee further agrees to pay any realtors, brokers or agents (other than Jack Cline), and to hold Licensor harmless from l.loansee's failure to pay any realtors, broker$ or agents (other than Jack Cline) and from any cost, expense or liability for any Companeation, commission or charges claimed by othor realtors, brokers or agents claiming by, through or on behalf of Licensee with respect to this Agreement and/or the negotiation hr;rer,f. (rn) Licensor and the Licensor Parties may enter the Licensed Area at ail raasdnoble times to (i) examine the Licensed Area; (ii) exercise any right or remedy of Licensor under this Agreement or under applicable law; Vii) make repairs, alterations, iinprov$ments or additions to the Licensed Area or to other portions of the Project that Licensor deems necessary or desirable; (iv) perform work that Licensor deems necessary or desirable to prevent waste or deterioration in connactiorl with the Licensed Area should Licensee fall to commence to make, and diligently pursue to completion, its required repairs within three (3) days after written demand by Licensor. If Licensor makes any repairs ronulr$d to be made by Licenaae, Licensee shall pay the cost of the repair to Licensor, within three (3) days of receipt of a bill, 7 JUN-03-2003 TUE 03:31 PM OLIVO & PLASCENCIA FAX NO, 562 869 1883 P. 09/10 JUN. } 2003 ' 1:41PM OI--CALIFORNIA CONTAINERS OAKLAND N0. 5572 p, IF' - (n) Licensee acknowledges and agrees that it shall have no right to use any portion Of the Promises other than the Licensed Area, and that Licensor retains the oxclueive right TO use the remainder of the premises, Licensor may, but shell not be obligated to, erect or install any dividing galls, doors or other security measures It deems advisablo. IN WITNESS WHEREOF, the parties havo caused this Agreement to be executed by duly authorized individuals effective as of the date first written above. OWEN$-BR©CKWAY GI.ASS CONTAINER INC., m pelower Corporation 1 Ry; r Tale: LICENSEE; CITY OF VCRNON, s� Califarnih Corporation 1!y< truce V, Melkanhorst, City Admin)etrator Approved as to Form: r3ye Eduardo CJlivo, City Attorney W'%D4C"�'U70CUMWM' 11MkTX6N5ES 42876.DOC a ,►,�lurrq r SUPPORTING DOCUMENTS CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem WM. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX (323) 826-1438 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 June 9, 2003 Owens-Illinois Glass Containers North America 14700 W. Schulte Road Tracy, CA 95377 Attn: Mike Korte EDUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Utilities FAX: (323) 826-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 Re: Owens -Brockway Glass Container Inc. - License Agreement Dear Mr. Korte: Transmitted herewith is a duplicate original of the above referenced agreement approved by the Vernon City Council on June 4, 2003. If you have any questions regarding this matter, please contact Mr. Eduardo Olivo at (323) 583-8811 ext. 310. Very truly yours, G or'a J. 016 co Chief Deput City Clerk GJO/gm CC: Kenneth DeDario Eduardo olivo Charles Montoya Dolores Fonseca Resolution No. 8208 Agreement No. 03-044 LICENSE AGREEMENT �S�CG) This License Agreement ("Agreement") is entered into this .1r day of Merq, 2003, by and between OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware corporation ("Licensor"), and the CITY OF VERNON, California, a California municipal corporation ("Licensee"). RECITALS: WHEREAS, Licensor owns that certain improved real property located at 2923 Fruitland Avenue, Vernon, California (situs fronts 50" St.) (the "Premises"), containing approximately 50,400 square feet 0.16 acres) of parking lot space; and WHEREAS, Licensor desires to license said parking lot, as shown on Exhibit A (the "Licensed Area"), to Licensee on a month -to -month basis, and Licensee desires to license the Licensed Area from Licensor on a month -to -month basis for use by its employees, its contractors, subcontractors and their employees in connection with the construction of the Malburg Generating Station Project (the "Project"); and NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensor and Licensee hereby agree as follows: AGREEMENT: SECTION 1 LICENSE OF THE LICENSED AREA 1.1 Licensed Area. Licensor grants to Licensee, for the sole benefit of Licensee, an exclusive, non -assignable license to use the Licensed Area for the sole purpose of parking passenger automobiles and storage of material and equipment in connection with Licensee's construction of the Project and for no other purpose (the "Permitted Use"). The use of the foregoing license (the "License") by Licensee is conditioned upon Licensee's compliance with each and every agreement of Licensee set forth herein. Licensee hereby accepts the Licensed Area in its current "AS IS" condition and acknowledges that there have been no representations or warranties, express or implied, made by or on behalf of Licensor with respect to the Premises or the Licensed Area, or with respect to the suitability of the Licensed Area for the conduct of Licensee's business. SECTION 2 TERM The term ("Initial Term") of this License to use the Licensed Area shall commence on June 1, 2003 ("Commencement Date") and, unless earlier terminated by Licensor for Licensee's default hereunder, shall automatically terminate on June 30, 2003 ("Expiration Date"). Thereafter, this License shall automatically renew on a month -to -month basis (each a "Renewal Term") unless either party provides the other party of notice of non - renewal no less than five (5) days prior to the expiration of the Initial Term or such Renewal Term, as applicable. The Renewal Terms, if any, and the Initial Term is collectively referred to herein as the "Term." SECTION 3 LICENSE FEE Licensee shall pay Licensor a license fee for its use of the Licensed Area in the amount of $6,500.00 per month, payable without notice or demand and without any set off or deduction whatsoever on or prior to the first day of each month. Any partial month hereunder shall be prorated. Licensee shall also be responsible for all other monetary obligations set forth in this Agreement. A five percent (5%) late fee will be charged if the license fee is not received by Licensor on or before the 5' day of the month. Any license fee payable by Licensee to Licensor that is not paid within seven (7) days of when due shall bear interest from the due date until paid at a rate equal to the lesser of: (a) the highest rate permitted by law; or (b) ten percent (10%) per annum. SECTION 4 INDEMNIFICATION Licensee agrees and acknowledges that its use of the Licensed Area is at its sole risk, and Licensee hereby waives, releases and absolves Licensor, its parent company affiliates, shareholders, officers, agents, employees, licensees and invitees (the "Licensor Parties") from any and all cost, loss, damage, expense, and liability, whether foreseeable or not, from any cause whatsoever, that Licensee may suffer to its personal property located anywhere in the Licensed Area or that it or its agents, employees, principals, and invitees may suffer as a direct or indirect consequence of Licensee's use of the Licensed Area or access areas.to the Licensed Area or for any other reason arising from or related to this Agreement. In addition, Licensee hereby agrees to indemnify, defend, protect, and hold Licensor and the Licensor Parties harmless from and against any loss, cost (including, but not limited to, attorneys' fees), damage, liability, expense, claim, or action or cause of action of any third party (including, but not limited to, employees, agents, contractors, invitees and licensees of Licensee), whether foreseeable or not, resulting as a direct or indirect consequence of or use of the Licensed Area or access areas to the Licensed Area or for any other reason arising from or related to the Agreement. Licensee's indemnification obligations hereunder shall survive the expiration or earlier termination of this Agreement. Licensee hereby waives any immunity provided to it under the Constitution, statutes, laws, regulations or other pronouncements (including any subsequent amendments or modifications) of the State of California respecting workers' compensation to the extent necessary to provide Licensor and Licensor Parties with the full benefit of Licensee's indemnity obligation contained herein. SECTION 5 INSURANCE Licensee shall maintain commercial general liability insurance covering Licensee against claims of bodily injury, personal injury and property damage arising out of 2 Licensee's operations, assumed liabilities or use of the Licensed Area, a broad form commercial general liability endorsement covering the insuring provisions of this Agreement and the performance by Licensee of the indemnification set forth in Section 4 of this Agreement for limits of liability not less than Five Million Dollars ($5,000,000) each occurrence and Five Million Dollars ($5,000,000) ailnual aggregate for bodily injury and property damage liability as well as personal injury liability. Licensee shall maintain Worker's Compensation insurance having limits no less than as required by applicable law that shall contain a waiver of subrogation against Licensor and Licensor Parties. In any event, Licensee hereby agrees to waive any workers compensation subrogation claims, liens, or demands, which could be asserted against Licensor or Licensor Parties by Licensee, its employees, or its insurance carrier, and further agrees to indemnify Licensor and Licensor Parties, regardless of Licensor's or Licensor Parties' negligence, for any and all workers compensation subrogation claims, liens, or demands, asserted by Licensee, its employees or Licensee's insurance carrier. The minimum limits of policies of insurance required of Licensee under this Agreement shall in no event limit the liability of Licensee under this Agreement. All insurance shall (i) be issued by an insurance company having a rating of not less than A - by A.M. Best Company or which is otherwise acceptable to Licensor and licensed to do business in the State of California; and (ii) provide that said insurance shall not be canceled or coverage changed unless thirty (30) days prior written notice shall have been given to Licensor and any mortgagee or ground or underlying lessor of Licensor. In addition, the liability insurance shall name Licensor and any other party specified by Licensor as an additional insured and shall specifically cover the liability assumed by Licensee under this Agreement, shall be primary insurance as to all claims thereunder and shall provide that any insurance obtained by Licensor is excess and is non-contributing with any insurance requirement of Licensee and shall contain a cross -liability endorsement or severability of interest clause acceptable to Licensor. Licensee shall deliver all policies or certificates thereof to Licensor concurrently with Licensee's execution of this Agreement. Licensee agrees to have its insurer(s) issuing property damage insurance waive any rights of subrogation that such company may have against Licensor. Licensee hereby waives any right Licensee may have against Licensor as a result of any loss or damage, to the extent such loss or damage is insurable under the policies of insurance described above in this Section 5. SECTION 6 USE OF LICENSED AREA 6.1 Permitted Use. Licensee shall use, in compliance with all applicable laws, the Licensed Area solely for the Permitted Use and for no other purpose. 6.2 Compliance with Laws. Licensee shall not use the Licensed Area or permit anything to be done in or about the Licensed Area which shall in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be in force. Licensee shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations and requirements now in force or which may hereafter be in force relating to or affecting the condition, use or occupancy of the Licensed Area. 3 6.3 Other Restrictions. Licensee agrees not to utilize any flammable, combustible or other materials in the Licensed Area that would increase the cost of Licensor's insurance, and not to utilize any toxic or hazardous material or waste in the Licensed Area. Licensee shall not do anything or suffer anything to be done in or about the Licensed Area which will in any way conflict with any law, statute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated. Licensee and Licensee's agents, servants, employees, contractors, and visitors shall observe faithfully and comply strictly with the rules and regulations that Licensor or Licensor's agents may from time to time adopt. Licensee shall not operate a fee -for -use parking area nor permit the general public to park or otherwise use the Licensed Area unless it obtains the prior written approval of Licensor. SECTION 7 ADDITIONS AND ALTERATIONS Licensee may not make any improvements, alterations, additions or changes to the Licensed Area (collectively, the "Alterations") without first procuring the prior written consent of Licensor to such Alterations, which consent may be given, withheld or conditioned in Licensor's sole and absolute discretion. Any Licensor approved Alterations .made by Licensee to the Licensed Area shall belong to Licensor and shall remain with the Licensed Area upon the expiration or sooner termination of this Agreement unless Licensor requires their removal, in which case any such Alterations shall be removed by Licensee, at Licensee's sole cost and expense, immediately upon Licensor's request. In addition, Licensee shall repair any damage to the Premises caused by such removal. SECTION 8 MAINTENANCE AND REPAIRS Licensee acknowledges that Licensor shall have no responsibility for management of the Premises. Licensee, at Licensee's sole cost and expense, will maintain and take good care of the Licensed Area including any fixtures and appurtenances thereto, and make any and all repairs thereto (whether structural or non-structural, foreseen or unforeseen) as and when needed to preserve them in good working order and condition. Licensee acknowledges and agrees that in no event will Licensor be obligated to make any repairs, alterations or improvements to the Licensed Area or to otherwise prepare the Licensed Area for Licensee's use. All damage or injury to the Licensed Area or to any other part of the Licensed Area or Premises, or to its fixtures, equipment and appurtenances, whether requiring structural or nonstructural repairs, caused by or resulting from misuse or negligent conduct or omission of Licensee, Licensee's agents, employees, or invitees will be repaired, at Licensee's sole cost and expense, by Licensee to Licensor's reasonable satisfaction. Licensee also will repair all damage to the Premises and the Licensed Area caused by the moving of Licensee's property. If at any time any public authority requires the installation of any type of sign or signal (including, but not limited to, warning signs) upon or near the Licensed Area during the Term, the Licensee shall pay any and all costs of installation, maintenance, and inspection of said sign/s or signal/s. V SECTION 9 NOTICES All notices, demands, statements, designations, approvals or other communications (collectively, "Notices") given or required to be given by either party to the other hereunder shall be in writing, shall be sent by United States certified or registered mail, postage prepaid, return receipt requested, or by a nationally recognized overnight delivery service, or by facsimile transmission with retention of written confirmation, or delivered personally to Licensor and Licensee at the following addresses, or to such other place as Licensor or Licensee may from time to time designate in a Notice to the other: Licensor: Owens -Brockway Glass Container Inc. 14700 W. Schulte Road Tracy, California 95377 Attn: Michael Korte Fax: (209) 836-8292 With a copy to: Owens-Illinois, Inc. One SeaGate Toledo, Ohio 43666 Attn: Associate General Counsel Fax: (419) 247-1463 Licensee: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator Fax: 323-826-1438 SECTION 10 ASSIGNMENT AND SUBLETTING This License is personal to Licensee and Licensee shall not assign, mortgage, pledge, hypothecate, encumber or permit any lien to attach to, or otherwise transfer this Agreement or any interest hereunder, permit any assignment or other such foregoing transfer of this Agreement or any interest hereunder by operation of law, sublet or sublicense the Licensed Area or any part thereof, or permit the use of the Licensed Area by any persons other than Licensee, its employees and Licensee's contractors or subcontractors, and their employees, in connection with the construction of the Project, without the prior written consent of Licensor. SECTION 11 MISCELLANEOUS (a) Time is of the essence of this Agreement and each of its provisions. (b) If default shall be made in any of the covenants or agreements of Licensee contained in this Agreement, or in case of any assignment or transfer of this License by 5 operation of law, Licensor may at its option, terminate this License by serving three (3) days' notice in writing upon Licensee. No waiver by Licensor of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other or later violation or breach of the same or any other of the terms, provisions and covenants herein contained. Forbearance by Licensor in enforcement of one or more of the remedies herein provided upon a. breach by Licensee shall not be deemed or construed to constitute a waiver of such breach. (c) This Agreement shall be construed and enforced in accordance with the laws of the State of California. (d) In the event of any litigation between the parties respecting this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party its reasonable attorneys' fees and costs as part of the judgment. (e) Its is understood and agreed that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and understandings, if any, between the parties hereto and none shall be used to interpret or construe this Agreement. This Agreement and the License granted hereby may only be amended in a writing signed by the parties duly authorized representatives, which such writing shall specifically reference this Agreement. (f) Licensee shall not record this Agreement nor any memorandum, affidavit or other writing with respect thereto and the recording thereof in violation of this provision shall make this Agreement null and void at Licensor's election. (g) If there is more than one entity which constitutes Licensee, the obligations imposed upon Licensee under this Agreement shall be joint and several. N Upon the expiration of this Agreement or the earlier termination of this Agreement by Licensor, Licensee shall relinquish possession of the Licensed Area and have removed all of its property from the Licensed Area and shall deliver up and surrender the Licensed Area to Licensor in as good a condition as when Licensee took possession and otherwise in the condition required in this Agreement. For each day or part of a day after the end of the Term or sooner termination of this Agreement that Licensee shall have failed to do the foregoing, Licensee shall, notwithstanding anything to the contrary set forth in this Agreement and in addition to any other obligation to pay money to Licensor contained herein, pay to Licensor One Hundred Dollars ($100.00) (for each such day or part of a day). In addition, if Licensee fails to so surrender the Licensed Area upon the expiration or sooner termination of this Agreement, Licensee agrees to indemnify, defend and hold Licensor harmless from all cost, loss, expense or liability, including, without limitation, claims made by any succeeding licensee or prospective tenant and real estate brokers' claims and attorneys' fees. (i1 If any term, provision or condition contained in this Agreement, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent possibly permitted by law. W Notwithstanding anything in this Agreement to the contrary, any remedy of Licensee for the collection of a judgment (or other judicial process) requiring the payment of money by Licensor in the event of any breach by Licensor hereunder or any claim, cause of action or obligation, contractual, statutory or otherwise by Licensee against Licensor concerning, arising out of or relating to any matter relating to this Agreement and all of the covenants and conditions or any obligations, contractual, statutory or otherwise set forth herein, shall be limited solely and exclusively to an amount which is equal to the lesser of (i) Licensor's interest in the Licensed Area, or Oil the equity interest Licensor would have in the Licensed Area if the Licensed Area were encumbered by a third -party debt equal to eighty percent (80%) of the value of the Licensed Area, as such value is determined by Licensor. No other property or assets of Licensor, or any Licensor Parties shall be subject to levy, execution or other enforcement procedure for the satisfaction of Licensee's remedies under or with respect to this Agreement, Licensor's obligations to Licensee, whether contractual, statutory or otherwise, the relationship of Licensor and Licensee hereunder, or Licensee's use or occupancy of the Licensed Area. Licensee further understands that any liability, duty or obligation of Licensor to Licensee, shall automatically cease and terminate as of the date that Licensor or any of Licensor Parties no longer have any right, title or interest in or to the Licensed Area. (k) This License is not to be construed as in any way granting to Licensee any leasehold or other real property interest in the Licensed Area, it being intended that this Agreement merely grants to Licensee this License to enter upon and use the Licensed Area during the Term in accordance with the terms and conditions hereof and shall not be deemed to grant to Licensee a leasehold or other real property interest in the Licensed Area. (1) Licensee and Licensor represent and warrant that neither has had any dealings with any realtors, brokers or agents in connection with the negotiation of this Agreement, other than Jack Cline of Lee & Associates on behalf of Licensor, and McKinney Travers Realty Corporation, dba McKinney Travers Oncor International on behalf of Licensee. Licensee further agrees to pay any realtors, brokers or agents (other than Jack Cline), and to hold Licensor harmless from Licensee's failure to pay any realtors, brokers or agents (other than Jack Cline) and from any cost, expense or liability for any compensation, commission or charges claimed by other realtors, brokers or agents claiming by, through or on behalf of Licensee with respect to this Agreement and/or the negotiation hereof. (m) Licensor and the Licensor Parties may enter the Licensed Area at all reasonable times to (i) examine the Licensed Area; (ii) exercise any right or remedy of Licensor under this Agreement or under applicable law; (iii) make repairs, alterations, improvements or additions to the Licensed Area or to other portions of the Project that Licensor deems necessary or desirable; (iv) perform work that Licensor deems necessary or desirable to prevent waste or deterioration in connection with the Licensed Area should Licensee fail to commence to make, and diligently pursue to completion, its required repairs within three (3) days after written demand by Licensor. If Licensor makes any repairs required to be made by Licensee, Licensee shall pay the cost of the repair to Licensor, within three (3) days of receipt of a bill. VA (n) Licensee acknowledges and agrees that it shall have no right to use any portion of the Premises other than the Licensed Area, and that Licensor retains the exclusive right to use the remainder of the Premises. Licensor may, but shall not be obligated to, erect or install any dividing walls, doors or other security measures it deems advisable. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by duly authorized individuals effective as of the date first written above. LICENSOR: OWENS-BROCKWAY GLASS CONTAINER INC., a Delawar Corporation By:.. Title:K-- LICENSEE: CITY OF VERNON, a California Corporation By: v Bruce V. Malkenhorst, City Administrator Approved as to Form: By; <f aM�ai,. Eduardo Olivo, City Attorney W:\ROCS\DOCUMENTS\182\LICENSES\42876.DOC 1.1 9nMm I 1\. o= to m�m �o o -o Zm zzm zm m O Cm , C mm D Z