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
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APPROVED AS TO FORM:
Attorney
CITY OF SAN RAFAEL
Title: Mava .-,:�--
ATTEST; i
APPROVED�K) A -U
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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.
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