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HomeMy WebLinkAboutCC Resolution 11255 (NOT APPROVED)RESOLUTION NO. 11255 SOLUTION OF THE CITY OF SAN RAFAEL CITY OUNCIL AUTHORIZING THE SIGNING OF A GHT-OF-USE AGREEMENT WITH SIGNA PROPERTIES FOR IMPLEMENTATION OF A NATIVE GRASSL NHANCEMENT PROGRAM -K CITY OPEN SPACE QJ The City Council of the City of Sia Rafael hereby resolves as follows: The'Mayor and City Clerk are\authorized to execute, on behalf of the City of San Rafael, a Right -of -Use Agreement wi Signature Properties for the implementation of a native grassland enhancement program on the Oakhill City Open Space (APN 175-060- 18 and 19), a copy of which is attached hereto and incorporated herein by this reference. I, JEANNE M. LEONCINI, City Clerk of the City of San Rafael hereby certify that the foregoing resolution was duly and reguf'arly introduced and adopted at a regular meeting of the Council of said City held on thr, 18th day of February 2003, by the following vote to wit: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: Exhibit A: Right -Of -Use Agreement ccrsoakl.doc NOTE: Cohen, Heller, MiNer, Phillips & Mayor Boro None None JEANNE M. RE: SRCC ITEM #8 (2/18/03) MAYOR BORO has a Conflict of In- terest re this item. Therefore, RESOLUTION & AGREEMENT NOT EXECUTED. Item to be brought back to CITY COUNCIL @ regular meeting of 3/3/03t for authorization for VICE -MAYOR PHILLIPS to sign AGREEMENT. JEANNE M. LEONCINI City Clerk L3t5/03)1�_ NCINI, City Clerk RIGHT OF USE AGREEMENT This Right of Use Agreement ("Agreement") by and between Signature Properties, Inc., a California corporation (herein "Signature"), and the City of San Rafael (herein "City") is entered into as of the 18th day of February 2003. WITNESSETH RECITALS WHEREAS, Signature is currently developing a mixed-use project commonly referred to as Redwood Village (formerly Ranchitos Park) on 17.5+ acres located at North San Pedro Road and Los Ranchitos Road, APN 179-131-01 and portion of 179- 142-30 (the "Project"); and WHEREAS, the Project would result in the loss of 5.85 acres of native grassland, which requires replacement. The conditions of approval for the Redwood Village project require the development and implementation of a native grassland mitigation plan, which establishes an on-site native grassland replacement ratio of 1:1 (one acre of replacement for every one acre of loss) and an off-site replacement ratio of 2:1. A portion of this native grassland is to be mitigated on the Redwood Village project site, while a majority of the native grassland mitigation is required to be mitigated off-site; and WHEREAS, the City of San Rafael owns 16+ acres of undeveloped open space, APN 175-060-18 and 19, which is located in close proximity to the Project, near the intersection of Los Ranchitos Road and Golden Hinde Way (herein "Oakhill Public Open Space"). The Oakhill Public Open Space contains non-native grassland and some native grassland. It has been determined by LSA Associates, Inc., qualified biologists that this land is a suitable site for the creation of new and the enhancement of existing native grassland; and WHEREAS, City -owned open space is regulated by Title 19 (Open Space) of the San Rafael Municipal Code. Section 19.10.030 of this title establishes general management policies for open space, which include: (a) allowing improvements to such land for the purpose of preserving natural amenities; and (b) encouraging the cooperation and participation of private groups in the management and preservation of open space lands. The establishment of new and enhancement of existing native grassland on the Oakhill Public Open Space would be consistent with the purpose of Title 19, in that it would facilitate recreating the native conditions on this site; and WHEREAS, an off-site native grassland mitigation plan (the "Plan") has been prepared by LSA Associates, biologists (December 12, 2002), and conditioned and approved by the City of San Rafael, which sets forth procedures and actions to achieve the establishment of new and enhancement of existing native grassland on the Oakhill Public Open Space. A copy of the Plan is attached hereto as Exhibit A and incorporated by this reference. The Plan includes the enhancement and establishment of native A-1 grassland populations, a management and monitoring plan and contingency measures to ensure that the enhancement goals are achieved; and WHEREAS, the City and Signature desire to accomplish the mutual goals of the enhancement and establishment of native grassland populations within the City by the implementation of the Plan on a portion of the Oakhill Public Open Space. NOW, THEREFORE, in consideration of the mutual goals contained herein, the parties do hereby agree as follows: 1. Property and Purpose. Signature shall be entitled to use the 16+ acre Oakhill Public Open Space further described in Exhibit B, attached hereto and incorporated by this reference (the "Property"), for the term of this Agreement for the purpose of implementing the Plan. Signature's right to use the Property shall be exclusive during the installation and enhancement stage of the Plan and non-exclusive during the maintenance and monitoring period of the Plan. 2. Term. This Agreement shall commence upon Signature's entry upon the Property for purposes of preparing the Property for the installation and enhancement of the native grasslands required by the Plan. Signature shall provide the City with thirty (30) days' written notice of the date of entry. This Agreement shall be valid for a period of one (1) year from the date of execution; provided, however, this term may be extended by mutual agreement for additional one-year increments for up to five (5) years, which is the expected completion date of the enhancement and monitoring period (the "Completion Date"). Signature shall provide the City with written notice of the Completion Date. 3. Annual Monitoriniz Reports. As specified in the Plan, annual monitoring reports are required to be submitted to the City for review. The City review of the annual reports shall coincide with City review and consideration of a requested extension to this Agreement. 4. Site Access. Access to the site needed to implement the Plan shall be via Estero Court. 5. Removal of Existing and Future Plant Material. The parties understand that the implementation of the Plan shall require the removal of various non-native plants such as eucalyptus, acacia and Monterey pine trees from the upper grassland and woodland portions of the Property as set forth in the Plan (Figure 3). Signature, at its cost, shall be entitled to remove the non-native plant material required under the Plan from the Property, consistent with the recommendations set forth in the Plan and the following additional conditions: (a) A transition area along the lower edges of the Oakhill Public Open Space, adjacent to existing residential development, shall be respected to maintain screening and privacy for adjacent residents. In this transition area, existing landscaping A-2 that clearly provides screening and privacy, such as the larger Monterey pine trees, shall not be removed. Non-native plants such as broom and pampas grass shall be removed within this area. (b) The grove of Monterey pine trees located on the steep slopes west of the Summerhill residential development (east edge of the Property), shall not be removed. (c) All trees that are to be removed shall be tagged and reviewed and approved by the City staff prior to removal. (d) Native trees (including small volunteers) and shrubs such as Coast live oak, Valley oak and coyote bush shall not be removed. (e) Dead tree limbs, stumps and old fence posts that are currently found on the hillside area shall be left, in place, as they provide habitat for wildlife. (f) All loose barbed wire shall be removed from the site. 6. Mowing and Seeding for Native Grassland Enhancement. Mowing for native grassland enhancement is the approved method for implementation of the Plan under the terms of this Agreement. Mowing shall be permitted twice a year, once in the later winter/early spring and once in the fall, as specified in the Plan. All grass clippings shall be removed from the site. Native grass seeding shall be permitted, as specified in the Plan. 7. Control Burn and Livestock Grazing Alternatives Prohibited. The control burn and livestock grazing alternatives for property management and enhancement, as specified in the Plan, are not permitted under the terms of this Agreement. 8. Herbicides and Pesticides Prohibited. Under no circumstances shall herbicides or pesticides be used as a means of eradicating existing non-native plants or enhancing the growth of native grassland. 9. Indemnitv. a. Signature. Signature agrees to indemnify, defend and hold the City harmless from and against all suits, causes of action, claims, damages, liability or other harm lodged, filed, claimed or asserted by any third party or its representative for personal injury or property damage arising directly or indirectly, as a result of the implementation of the Plan on the Property; provided, however, Signature shall not be obligated to indemnify, defend or hold the City harmless for issues arising out of the City's intentional misconduct or negligence. 10. Insurance. Signature shall procure and maintain during the term of this Agreement a general liability insurance policy. Signature shall name the City, its A-3 officers, agents, employees and volunteers as additional insured under the policy prior to Signature's entry upon the Property. The provisions and limits of coverage shall be subject to approval of the City, which approval shall not be unreasonably withheld. 11. Assignment. Signature may assign this Agreement to a third party that purchases the Project so long as (a) Signature provides the City with thirty (30) days' written notice of the assignment and (b) the assignment includes the assignee's express written assumption of all of Signature's obligation under this Agreement. 12. Nondiscrimination: Signature shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. Compliance with All Laws: Signature shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. Signature shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. Signature shall release, defend, indemnify and hold harmless City, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. No Third-Partv Beneficiaries: City and Signature do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. Notices: All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: To City: Robert Brown Project Manager City of San Rafael 1400 Fifth Ave., P.O. Box 151560 San Rafael, CA 94915-1560 or as applicable: City Risk Manager City of San Rafael 1400 Fifth Avenue, P.O. Box 151560 San Rafael, CA 94915-1560 A-4 To Signature: Michael Ghielmetti (Project Director) Signature Properties, Inc. 4670 Willow Road, Suite 200 Pleasanton, CA 94588 16. Independent Contractor. For the purposes, and for the duration, of this Agreement, Signature, its officers, agents and employees shall act in the capacity of an Independent contractor, and not as employees of the city. Signature and City expressly intend and agree that the status of Signature, its officers, agents and employees be that of an Independent contractor and not that of an employee of City. 17. Entire Agreement — Amendments. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Signature and the City. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Signature and the City. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. Set -Off Aizainst Debts. Signature agrees that City may deduct from any payment due to Signature under this Agreement, any monies which Signature owes City under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. Waivers. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or A-5 violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. Costs and\ttornev's Fees. The prevailing party in any action brought to enforce the terms and con 'tions of this Agreement, or arising out of the performance of this Agreement, may recovits reasonable costs (including claims administration) and attorney's fees expended in c pnection with such action. 21. Applicable Law.The laws of the State of California shall govern this Agreement. Signature Properties, Inc., CITY OF SAN RAFAEL a California corporation, By: By: Albert J. Boro Its: Its: Mayor Useagoak.doe A-6 ATTEST: Jeanne M, Leoncini, City Clerk Approved as to form: Gary T. Ragghianti, City Attorney