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HomeMy WebLinkAboutCC Resolution 8543 (GGBHTD License Agreement)as follows: RESOLUTION NO. 8 5 4 3 A RESOLUTION AUTHORIZING THE SIGNING OF A LICENSE AGREEMENT WITH GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a License Agreement with Golden Gate Bridge, Highway and Transportation District, a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE. M. LEONCIINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Monday, the 4th day of November, 1991, by the following vote, to wit: AYES: COUNCELMEMBERS: Foro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCII.MEM 3ERS: 'None ABSENT: COUNCII.MEMBERS: rTone M. LEON INI, City Clerk BRIGINA[ kg5413 LICENSE AGREEMENT This License Agreement ("Agreement") is entered into as of November 4 , 1991 ("Effective Date"), by and between GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT, a public district ("District" or "Licensor") and the City of San Rafael, a public district ("Licensee") at San Rafael, Calif.. RECITALS A. Licensor is the owner of that certain real property which is located in the City of San Rafael, County of Marin, State of California, and more particularly described in the attached Exhibit A, which is incorporated by this reference, and depicted on the attached Exhibit B, which is incorporated by this reference ("Property"). B. Muir Valley Land Company ("Developer"), desires to obtain a permit from Licensor for the purposes of constructing a triple 3' x 4' reinforced concrete box culvert ("Structure") on the Property. C. Licensee, upon completion of the Structure, is willing to assume maintenance and repair of the Structure thereafter. D. Licensor is willing to grant a License to Licensee on the terms and conditions hereinafter set forth, and to issue concurrently a right of entry permit to Developer for the purposes of constructing said Structure. FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: 1. Grant of License. Licensor grants to Licensee, subject to the conditions and covenants of this Agreement, a revocable license for the purposes of repairing, maintaining and using a triple 3' x 4' reinforced concrete box culvert ("Structure") together with necessary rights of ingress and egress over the Property for these purposes in the location described in the attached print of Drawing 5-19.8, attached and incorporated as Exhibit C. 2. Nonexclusiveness of License. This license is nonexclusive. 3. Prior Riahts. This grant is made subject and subordinate to the prior and continuing right and obligation of Licensor, its successors and assigns, to use all of the property described in this Agreement in the performance of its transportation operations. There is reserved unto Licensor, its 24704.3 successors and assigns, the right to construct, reconstruct, maintain and use existing and future facilities and appurtenances, including, without limitation, existing and future transportation, communication, railroad tracks and pipeline facilities and appurtenances in, upon, over, under, across and along the Property. This grant is made subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens and claims of title which may affect the Property. The word "grant" shall not be construed as a covenant against the existence of any of these. 4. Term of License. The term of this License shall commence upon the start of construction of the Structure. By giving 30 calendar days' written notice, either party may terminate this Agreement. Upon termination of the License, Licensee shall, at its own cost and within 30 days after the date of the notice of termination, remove the Structure on or under the Property and restore the Property to the condition that it was as of the date the Structure was placed on the property. If the Licensee fails to perform such work, Licensor may perform the work, at the expense of the Licensee, which expense Licensee agrees to pay to Licensor upon demand. In the event that Licensee should discontinue the use of any of the Structure for one continuous year or abandon and remove the Structure, Licensee shall restore Licensor's Property and this Agreement shall terminate with respect to that Structure, except for the obligations already incurred and the indemnity obligations set forth in Sections 10 and 12. In removing the Structure from Licensor's Property, Licensee agrees to restore Licensor's Property insofar as is reasonably possible to its condition prior to installation of the Structure. If Licensee defaults with respect to any covenant or condition of this Agreement and fails to correct the default within thirty (30) days after receipt of notice from Licensor to do so, Licensor may immediately terminate this Agreement by notice to Licensee. 5. Laose of Aareement. The rights granted by this Agreement to Licensee shall lapse and become void if the construction of the Structure is not commenced within one year of the Effective Date. 6. Riaht of Entry and Condition of Structure. Licensee, its agents and employees, subject to the provisions of this Agreement, shall have a right of entry on the Property for he purpose of maintaining and making necessary repairs to the -ucture. Licensee agrees to give Licensor ten (10) calendar ' written notice prior to commencement of any work on the lire, except emergency repairs, in which event Licensee -2- shall notify Licensor's authorized representative by telephone. Licensee agrees to keep the Property and the Structure in good and safe condition, free from waste, so far as affected by Licensee's operations, to the reasonable satisfaction of Licensor. If Licensee fails to keep the Property and the Struc- ture in good and safe condition, free from waste, then Licensor, after giving ten (10) calendar days' written notice to Licensee except during emergencies, may perform the necessary work at the expense of Licensee, which expense Licensee agrees to pay to Licensor upon demand. 7. Repair and Maintenance,. Licensee shall bear the entire cost and expense of repairing, maintaining and operating the Structure upon the Property. Licensee agrees that all work upon or in connection with the Structure shall be done at such times and in such manner as not to interfere in any way whatsoever with the operations of Licensor. The plans for any repair or reconstruction of the Structure shall be subject to the approval of Licensor. Approval by Licensor shall not constitute a warranty by Licensor that such plans conform with applicable federal, state, and/or local codes and regulations. All work by Licensee upon the Property shall be performed in a good and workerlike manner satisfactory to Licensor. Since there is the possibility of the existence of pipelines or other structures beneath the Property, if Licensee should excavate or drill, then Licensee's forces shall explore such structures with hand tools to a depth of at least eight feet (81) below the surface of the ground or, at Licensee's option, use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by Licensor of no subsurface installations. Prior to Licensee's commencement of work upon the Structure, Licensor shall notify Licensee of any underground structures located on the Property provided, Licensor has actual, not constructive, knowledge of the same, without independent investigation. Notwithstanding the foregoing, it shall be Licensee's responsibility to determine the existence of any underground facilities and Licensee shall call Underground Service Alert at 1-800-642-2444 prior to beginning any work on the Property. Any open holes shall be satisfactorily covered at all times when Licensee's forces are not physically working in the actual vicinity. Upon completion of work, all holes will be filled in to meet the surrounding ground level with clean, compacted, earthen material and the property left in a neat and safe condition reasonably satisfactory to Licensor. Under no condition shall Licensee be permitted to -4ce or store any mechanized equipment,.tools or other materials -3- within twenty-five feet (251) of the center line of Licensor's nearest railroad tracks. Licensee shall not be permitted to cross Licensor's tracks located on or adjacent to the Property to gain access to and from the Structure. Access shall be by use only of designated public streets or crossings. Licensee agrees to reimburse Licensor for the cost and expense to Licensor of furnishing any materials or performing any labor in connection with the construction and maintenance or removal of the Structure, including, but not limited to, the installation and removal of such false work and other protection beneath or along the railroad tracks, and the furnishing of such security persons, flaggers and inspectors as Licensor deems necessary. Prior to incurring any such cost or expense, Licensor shall notify Licensee in writing of the same. With respect to the Structure, Licensee shall fully pay for all materials joined or affixed to the Property, and shall pay in full all persons who perform labor on the Property. Licensee shall not suffer any mechanics' or materialmen's liens of any kind to be enforced against the Property for any work done or materials furnished at Licensee's request. If any such liens are filed, Licensee shall immediately remove them at Licensee's own expense, and shall pay any judgment which may be entered. Should Licensee fail, neglect, or refuse so to do, Licensor, after 48 hours prior notice to Licensee, shall have the right to pay any amount required to release any such liens, or to defend any action brought, and to pay any judgment entered. Licensee shall be liable to Licensor for all costs, damages, reasonable attorneys' fees, and any amounts expended in defending any proceedings or in the payment of any of said liens or any judgment. Licensor may post and maintain upon the property notices of nonresponsibility as provided by law. The presence of an inspector from Licensor may be required when Licensee or any of Licensee's forces or contractors are working. The reasonable cost to Licensee of such inspector shall be payable to Licensor within 30 days after presentation of a bill. Licensee shall cooperate with Licensor in making any tests Licensor requires of any installation or condition which in Licensor's reasonable judgment may have an adverse effect on any of the facilities of Licensor. All costs incurred by the tests, or any corrections, shall be borne by Licensee. 8. Fiber Optics Svstems. The rights granted by this Agreement are subject to the rights of Licensor (or anyone acting with the permission of Licensor) to construct, reconstruct, maintain and operate fiber optic and other telecommunications 24704.3 -4- systems ("systems") in, upon, along, across and beneath the Property and rights-of-ways of Licensor, including the Property through which the Structure shall be constructed. Licensee agrees to reimburse Licensor and/or the owner of the systems for all expenses which would not have been incurred except by reason of the,use of the Property by Licensee, its agents, employees or invitees, including relocation costs or any damages incurred by such owner due to injury to the systems. In addition to other provisions of this Agreement requiring Licensee to give notice prior to commencing work, Licensee shall telephone Southern Pacific Telecom at 1-800-283-4237 (a 24-hour number) to determine if a telecommunications system is buried anywhere on or about the premises defined or included in this Agreement. If there is, Licensee will telephone the owner of the system designated by Licensor, arrange for a cable locator and make arrangements for relocation or other protection for the system prior to beginning any work on the Property. 9. Prosect Markers. Project markers in a form and size satisfactory to Licensor, identifying the facility and its owner, shall be installed and constantly maintained by and at the expense of Licensee at Licensor's property lines or such locations as Licensor shall approve. Such markers shall be relocated or removed upon request of Licensor without expense to Licensor. The absence of markers does not constitute a warranty by Licensor that there are no subsurface installations. 10. Hazardous Materials. No hazardous materials shall be handled at any time upon the Property. In the event of leakage or spillage from the Structure or any vehicle in the control or custody of Licensee or any contractor or agent for Licensee, Licensee shall, at its own expense, promptly clean Licensor's Property to the satisfaction of Licensor, the Environmental Protection Agency and any public body having jurisdiction in the matter. Any expense of required compliance with federal, state or local environmental regulations incurred by Licensor or Licensee shall be borne by Licensee, including any fines and judgments levied against Licensor or its Property. Licensee shall indemnify, hold harmless and defend (with counsel reasonably satisfactory to Licensor) Licensor, its directors, officers, employees and agents, against all liability, cost and expenses (including, without limitation, any fines, penalties, judgments, litigation costs, attorneys' fees and consulting, engineering and construction costs) incurred by Licensor as a result of Licensee's breach of this section or as a result of any such discharge, leakage, spillage, emission or pollution, arising out of Licensee's activities, regardless of 24704.3 - 5 whether such liability, cost or expense arises during or after the term of the license. 11. Assumption of Risk. Licensee shall assume all risk of damage to the Structure and appurtenances and to any other property of Licensee, or any property under the control or custody of Licensee while upon or near the Property of Licensor incident to the construction or maintenance of the Structure, caused by or contributed to in any way by the construction, operation, maintenance or presence of Licensor's operations at the Property; provided, however, such assumption by Licensee shall not include any damage caused by the active negligence and/or wilful misconduct of Licensor, its agents or employees. 12. Indemnitv and Insurance. Licensee shall release, defend (with counsel reasonably satisfactory to Licensor and Licensor will not unreasonably withhold, delay or condition its consent) and indemnify Licensor from and against all liability, cost, and expense for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party) when arising or resulting from the use of the Property by Licensee, its agents, employees, contractors, subcontractors, or invitees or Licensee's breach of these provisions. The duty of Licensee to indemnify and save harmless includes the duties to defend as set forth in Section 2778 of the Civil Code. It is the express intent of the parties that Licensee will indemnify and hold harmless Licensor, its directors, officers, employees and agents from any and all claims, suits or actions arising from any cause whatsoever as set forth above regardless of the existence or degree of fault or negligence on the part of Licensor, Licensee, or any subcontractor or employee of any of these, other than the active negligence, wilful misconduct or criminal acts of the Licensor, its directors, officers, employees and agents. Licensee waives any and all rights to any type of express or implied indemnity against Licensor, its directors, officers or employees. The term "Licensor" as used here and in Section 10, above, includes, in addition to Licensor, the County of Marin, Marin County Transit District, and the successors and assigns of any of them, and any railroad company operating upon Licensor's tracks. This indemnity shall survive termination of this Agreement. To insure Licensee's contractual liability, Licensee shall provide Licensor satisfactory evidence of Personal Injury and Property Damage Liability insurance, in an amount of not less than Five Million Dollars ($5,000,000.00) combined single limit per occurrence. The insurance policies shall name Licensor, its directors, officers, employees and agents as additional insureds and shall include the endorsements described in subparagraphs b(1), (2) and (3) below. Upon evidence of financial capacity satisfactory to Licensor, Licensee may self - insure all or any portion of this amount. 24704.3 - 6 Any person, firm or corporation Licensee authorizes to work upon the Property shall be deemed to be Licensee's agent and shall be subject to all the applicable terms of this Agreement. Prior to entry upon the property, Licensee shall provide Licensor with satisfactory evidence, in the form of a Certificate of Insurance, that all contractors who obtain access to the Property pursuant to this Agreement maintain the insurance coverages set forth below throughout the term of this Agreement: a. Workers' Compensation and Emplovers' Liabilitv Insurance. The Contractors shall procure and maintain Workers' Compensation Insurance and Employers' Liability Insurance in accordance with the laws of the State of California. Employers' Liability Insurance shall have coverage for a minimum liability of Two Million Dollars ($2,000,000.00) covering a contractor's employees engaged in the work. Licensee shall insure the procurement and maintenance of such insurance by all contractors or subcontractors engaged on the work. Prior to commencement of any work hereunder, Licensee shall deliver to Licensor a Certificate of Insurance which shall stipulate that 30 days advance written notice of cancellation, non -renewal or'reduction in limits shall be given to Licensor. b. Personal Inlury and Property Damage Liability Insurance. Contractor shall also procure and maintain Personal Injury and Property Damage Liability Insurance which shall include as additional insureds the "Golden Gate Bridge, Highway and Transportation District, County of Marin, Marin County Transit District, and their respective directors, officers, employees and agents" while acting in such capacity, and their successors or assignees, as they now or as they may hereafter be constituted, singly, jointly or severally. Said insurance shall include Automobile Bodily Injury and Property Damages coverage, including owned, hired and non -owned vehicles. Said insurance shall be subject to a combined single limit of liability of not less than $5,000,000. A Certificate of Insurance shall be filed with the Secretary of the District prior to the start of any work under this Agreement which shall inter alia stipulate: (1) Thirty days advance written notice shall be given the General Manager of the District prior to cancellation, non -renewal or reduction in limits. (2) That the policy is Primary Insurance and the insurance company providing such policy shall be liable thereunder for the full amount of any loss or claim which 24704.3 -7- Licensee is liable for under Sections 10 and 12, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by the Golden Gate Bridge, Highway and Transportation District, County of Marin, and Marin County Transit District. (3) The policy shall also stipulate: Inclusion of Golden Gate Bridge, Highway and Transportation District, County of Marin, and Marin County Transit District as additional insureds shall not in any way affect their rights either as respects any claim, demand, suit or judgment made, brought or recovered against the Contractor. Said policy shall protect Contractor and Golden Gate Bridge, Highway and Transportation District, County of Marin, and Marin County Transit District in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company's liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured. Contractor shall also furnish to Licensor, without expense to Licensor, a reliable surety bond in an amount and form satisfactory to Licensor guaranteeing the faithful performance of all terms, covenants and conditions in this Agreement. 13. Compliance with Laws. Licensee shall comply, at Licensee's expense, with all applicable laws, regulations, rules and orders with respect to the use of the property, regardless of when they become or became effective, including, without limitation, those relating to construction, grading, signage, health, safety, noise, environmental protection, hazardous materials, waste disposal and water and air quality, and furnish satisfactory evidence of such compliance upon request of Licensor. 14. Notices. All notices required or permitted to be given under this Agreement shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery or by overnight courier, to the appropriate address indicated below or at such other place or places as either Licensor or Licensee may, from time to time, respectively, designate in a written notice given to the other. Notices shall be deemed sufficiently served four (4) days after the date of mailing or upon personal delivery. To Licensee: City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915 Attn: Mr. David Bernardi, Director of Public Works 24704.3 -8- Copy to: Muir Valley Land Company 2228 Union Street - Penthouse San Francisco, CA 94123 Attn: Mr. Brian Gannon, Construction Manager To Licensor: Golden Gate Bridge, Highway and Transportation District P.O. Box 9000, Presidio Station San Francisco, CA 94129 Attn: General Manager Copy to: Hanson, Bridgett, Marcus, Vlahos & Rudy 333 Market Street, Suite 2300 San Francisco, CA 94105 Attn: Madeline Chun, Esq. NWP Task Force County of Marin Marin Civic Center San Rafael, CA 94903 Attn: Mr. Robert Roumiguiere, Chair County Counsel of Marin County Civic Center, Suite 342 San Rafael, CA 94903 Attn: Thomas G. Hendricks, Esq. 15. Relocation of License. In the event Licensor shall at any time so require, Licensee, at Licensee's expense, shall reconstruct, alter, make changes in the location of the Structure or otherwise improve the Structure within 30 calendar days of receipt of written notice from Licensor so to do or such longer period as approved by Licensor. Said reconstruction, alteration and relocation shall include, but not be limited to, extending the Structure to the boundaries of the property, as depicted in Exhibits B and C. The Licensor shall designate the location for the Licensee to relocate its license, if on property owned by Licensor. Any necessary property interests shall be obtained at Licensee's sole cost and expense. Licensee shall perform the work in a manner and at times satisfactory to Licensor. If Licensee fails to perform such work, Licensor may perform the work at the expense of Licensee, which expense shall, upon demand, be paid by the Licensee. The provisions of this Agreement shall apply to all work Licensee performs under this section. 24704.3 - 9 16. Successors and Assians. Licensee shall not assign nor sublet, in whole or in part, any rights covered by this Agreement, or permit any other person, firm or corporation to use, in whole or in part, any of the rights or privileges granted pursuant to this Agreement, without first obtaining the written consent of the Licensor. 17. No Waiver. No waiver of any default or breach of any covenant of this Agreement by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and then the waiver shall be operative only for the time and to the extent stated. Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by either party requiring further consent or approval shall not be deemed to waive or render unnecessary their consent or approval to or of any subsequent similar acts. 18. Severabilitv. Each provision of this Agreement is intended to be severable. If any term of provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 19. Attorneys' Fees. If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine the rights of the parties under this Agreement, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys' fees. 20. Condemnation. In the event all or any portion of the license is condemned for public use, Licensee shall receive compensation only in the amount awarded for the taking and damaging of Licensee's Structure. Any compensation for damages for taking the Property or Licensee's license interest thereon awarded to Licensee shall be assigned to Licensor. 21. Costs. Licensee shall pay the costs for review of the license application, design and construction plans, preparation of the agreement and any inspection of construction, including but not limited to, expenses incurred by Licensor and NWP Task Force, which costs Licensee agrees to pay upon demand. 22. License Fee. In consideration of the rights conveyed hereunder, Licensee agrees to pay to Licensor a license fee in the amount of Eight Thousand Eight Hundred Dollars ($8,800.00). 24704.3 -10- 23. Condition to Effectiveness. As conditions precedent to the effectiveness of this Agreement, Licensor and Developer shall have executed a Right of Entry Permit for construction of the Structure. IN WITNESS WHEREOF, the parties have executed this License as of the day and year first above written by their duly authorized representatives. GOLD ATE BRID IGHW AND T NSPORTAT ISTR . �_ � " �'�� ��%.!��► /'flu / y r r. rrrrn.r•r `/ APPROVED AS TO FORM: Attorney CITY OF SAN RAFAEL Title: Mava .-,:�-- ATTEST; i APPROVED�K) A -U 'J ASST. CITY ATTORNEY 24704.3 -11- OBERKAMPER s ASSOCIATES CIVIL ENGINEERS, INC. LEGAL DESCRIPTION TRIPLE BOX CULVERT THE GABLES SAN RAFAEL, CALIFORNIA OCT 2 3 1591 October 10, 1991 Job No. 111-a9G Real property situate in the City of San Rafael, County of Marin, State of California described as follows: A 15 -foot wide reinforced concrete box culvert along the following described centerline: Commencing at the most southwesterly corner of Parcel 1, the same as shown and delineated on that certain parcel map entitled "Parcel Map of Civic Center Plaza" filed for record in Book 22 of Parcel Maps, at Page 34, Marin County Records; thence along the southeasterly boundary of said parcel map (22 PM 34) North 40134155" East, 703.50 feet; thence leaving said southeasterly boundary (22 PM 34) South 49025105" East, 24.0 feet to the True Point of Beginning; thence along the last named course South 49°25'05" East, 52.00 feet to its end. EXHIBIT A uS �o �14114FiiP.KC�SCG ci FRONTj'+GE ROAM +. C\V\C G:E1.1"CER =>R\VE SOIBI2 $ N i x N � / r a 4 � � acjS �Pt SOIBI2 $ N i