HomeMy WebLinkAboutCC Resolution 11295 (License Agr. 999 Third St.)RESOLUTION NO. 11295
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT
BETWEEN THE CITY OF SAN RAFAEL AND PACIFIC GAS AND
ELECTRIC FOR USE OF THE PARKING AREA LOCATED AT 999
THIRD STREET IN AN AMOUNT NOT TO EXCEED $30,000
WHEREAS, the City of San Rafael Management Services Department, Parking Services
Division are currently in need of additional parking areas; and
WHEREAS, Pacific Gas and Electric will have space available to license at their
property located at 999 Third Street; and
WHEREAS, Pacific Gas and Electric are willing to lease the City the space available at
this location.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
HEREBY RESOLVES AS FOLLOWS:
The CITY MANAGER is hereby authorized to execute, on behalf of the City of San
Rafael, a license agreement between the City of San Rafael and Pacific Gas and Electric for the
parking area located at 999 Third Street in San Rafael, CA. The form of the License Agreement
shall be subject to the review and approval of the City Attorney.
I, JEANNE M. LEONCINI, 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
City Council of said City held on the 21" day of April, 2003, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller & Vice—Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (due to conflict of interest)
JE M. LEONCINI, City Clerk
LICENSE AGREEMENT
FOR TEMPORARY USE OF PG&E PROPERTY
This License Agreement"License Agreement") is made and entered into this
144 day of , 2003, (the "Effective Date") by PACIFIC GAS AND
ELECTRIC COMPANY, a Cal' ornRcorporation, hereinafter called "PG&E," and the City of
San Rafael, a municipal corporation, hereinafter called "Licensee."
RECITALS:
A. PG&E owns the real property commonly known as 999 Third Street,
(Assessor's Parcel No. 011-265-01, State Board of Equalization No. 135-21-1-3)
hereinafter called the "Property", situate in the City of San Rafael, County of Marin,
State of California.
B. In conjunction with the temporary closure for remodeling of Licensee's
public parking lot in the vicinity of the Property, Licensee wishes to use a portion of the
Property as shown outlined with a heavy dashed line on EXHIBIT "A" attached hereto
and by this reference made a part hereof (the "License Area") as a substitute public
parking lot.
C. Licensee has requested permission for Licensee to use the License Area and
conduct certain activities within the License Area as more fully described in this License
Agreement, and PG&E is willing to grant such permission subject to the terms and
conditions set forth herein.
D. NOW, THEREFORE, for good and valuable consideration, PG&E and
Licensee hereby agree as follows:
1. Temporary Richt of Use. Subject to the terms and conditions set forth in this
License Agreement, PG&E hereby confers to Licensee a temporary, personal, non-exclusive and
non -possessory right and license to enter and use, and for Licensee to allow Licensee's directors,
officers, partners, members, managers, employees, contractors, subcontractors, consultants,
representatives, agents, permittees and invitees ("Licensee's Representatives") to enter and use, at
any reasonable time and from time to time for the sole purpose of establishing, maintaining and
using a public lot for short-term parking of automobiles and other passenger vehicles,
hereinafter referred to as "Licensee's Activities." All of Licensee's Activities shall be performed
at Licensee's sole cost and expense. This License Agreement gives Licensee a license only and
does not constitute a grant by PG&E of any ownership, leasehold, easement or other similar
property interest or estate.
2. Fees. Licensee shall pay to PG&E an initial license fee of One Thousand Three
Hundred Fifty Dollars ($1,350.00) on or before the execution of this License Agreement by
Licensee, and commencing 60 days after PG&E provides written consent to Licensee's Work Plan,
a monthly license fee of Two Thousand Five Hundred Dollars ($2,500.00) per month, due and
payable on the first day of each month of the remaining term of this License Agreement.
3. Work Plan. Licensee shall prepare a work plan which describes in detail and with
specificity the nature, scope, location and purpose of all of Licensee's Activities to be performed
on the Property in preparation for Licensee's use hereunder, including, without limitation, (i) the
specific areas in which Licensee and Licensee's Representatives may have access and may conduct
Licensee's Activities; (ii) the type, size, length, location and materials of temporary fencing to be
placed within the Property by Licensee; (iii) the parking layout and method of marking parking and
no -parking areas; and (iv) a schedule of days and times of Licensee's Activities (the "Work
Plan"). The Work Plan will be submitted to the following person at PG&E for approval: Brenda
San Julian, Land Agent at 111 Stony Circle, Santa Rosa, CA 95401, tel. (707) 577-7267.
Licensee acknowledges and agrees that PG&E's review of the Work Plan is solely for the purpose
of protecting PG&E's interests, and shall not be deemed to create any liability of any kind on the
part of PG&E, or to constitute a representation on the part of PG&E or any person consulted by
PG&E in connection with such review that the Work Plan is adequate or appropriate for any
purpose, or complies with applicable Legal Requirements, as defined herein. Licensee and
Licensee's Representatives shall not enter the Property nor commence any activity on the Property,
including, but not limited to Licensee's Activities, without the prior written consent of PG&E to
the Work Plan as set forth above, which consent shall not be unreasonably denied. Licensee
agrees and covenants that all of Licensee's Activities hereunder shall be performed in strict
compliance to the approved Work Plan.
4. Term: Termination: Surrender.
(a) This License Agreement shall be for a term of twelve (12) months
commencing on the date that PG&E delivers its written consent to the Work Plan, subject to
termination as provided hereafter.
(b) PG&E may terminate this License Agreement, at any time, for any
reason or no reason, including, without limitation, pursuant to the provisions of General
Order No. 69-C of the California Public Utilities Commission (the "CPUC"), upon thirty-six
(36) hours written notice faxed or personally delivered to Licensee, provided that such notice
shall be faxed or delivered to�i ensee between 9 a.m. and 5 p.m., Monday through Friday.
(Licensee to initial here r c. �- ). Upon the expiration or termination of this License
Agreement, at Licensee's sole cost and expense, Licensee shall remove all of Licensee's and
Licensee's Representatives' personal property, remove all debris and waste material resulting from
Licensee's Activities, and repair and restore the Property as nearly as possible to the condition that
existed prior to Licensee's entry hereunder, provided that Licensee shall not be required to remove
any of the parking lot striping. Licensee shall bear the entire cost of such removal, repair and
restoration, and PG&E shall bear no liability for any costs caused or related to any termination of
this License Agreement. In the event Licensee fails to comply with the requirements of this
Section, PG&E may elect to remove such personal property and effect such removal, repair or
restoration as necessary and recover such costs and expenses therefor from Licensee. Licensee
shall pay such costs and expenses within ten (10) days of receipt of an invoice therefor. Licensee's
obligations under this Section shall survive the expiration or termination of this License
Agreement.
(c) Licensee may terminate this Agreement, with or without cause upon fifteen
(15) days written notice mailed or personally delivered to PG&E.
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(d) If this Agreement is terminated, Licensee shall be responsible for no
monthly payments beyond the monthly payment owing for that month during which Licensee's
termination is effective.
5. Condition of the Pronertv. Licensee acknowledges that the Property is the subject
of the Covenant and Agreement to Restrict Use of Property (the "Covenant") recorded in the
office of the Marin County Recorder as Official Records No. 89-45973. PG&E acknowledges
that Licensee's intended use of the property as a parking lot will not be in violation of the
Covenant. Licensee accepts the Property "as is", in its existing physical condition, without
warranty by PG&E or any duty or obligation on the part of PG&E to maintain the Property.
Licensee further acknowledges that one or more of the following (collectively, "Potential
Environmental Hazards") may be located in, on or underlying the Property:
(a) electric fields, magnetic fields, electromagnetic fields, electromagnetic
radiation, power frequency fields, and extremely low frequency fields, however designated, and
whether emitted by electric transmission lines, other distribution equipment or otherwise
("EMFs");
(b) Hazardous Substances (as hereinafter defined). For purposes hereof, the
term "Hazardous Substances" means any hazardous or toxic material or waste which is or
becomes regulated by Legal Requirements, as defined herein, relating to the protection of human
health or the environment, including, but not limited to, laws, requirements and regulations
pertaining to reporting, licensing, permitting, investigating and remediating emissions, discharges,
releases or threatened releases of such substances into the air, surface water, or land, or relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
such substances. Without limiting the generality of the foregoing, the term Hazardous Substances
includes any material or substance:
(1) now or hereafter defined as a "hazardous substance," "hazardous
waste," "hazardous material," "extremely hazardous waste," "restricted hazardous waste" or "toxic
substance" or words of similar import under any applicable local, state or federal law or under the
regulations adopted or promulgated pursuant thereto, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C.
§§9601 et SeMc . ("CERCLA"); the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
§§6901 et seq.; the Clean Air Act, 42 U.S.C. §§7401 et seq.; the Clean Water Act, 33 U.S.C.
§§1251 et seMc .; the Toxic Substance Control Act, 15 U.S.C. §§2601 et Se,�C .; the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. §§136 et seg.; the Atomic Energy Act of 1954, 42
U.S.C. §§2014 et seg.; the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§10101 et seg.; the
California Hazardous Waste Control Law, Cal. Health and Safety Code §§25100 et seg.; the
Porter -Cologne Water Quality Control Act, Cal. Water Code §§13000 et S�Mc .; the Carpenter -
Presley -Tanner Hazardous Substance Account Act (Health and Safety Code §§25300 et sem.); and
the Medical Waste Management Act (Ilealth and Safety Code §§25015 et SeMc .); or
(2) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter regulated as a
Hazardous Substance by the United States, the State of California, any local governmental
authority or any political subdivision thereof; or
(3) the presence of which on the Property poses or threatens to pose a
hazard to the health or safety of persons on or about the Property or to the environment; or
(4) which contains gasoline, diesel fuel or other petroleum
hydrocarbons; or
(5) which contains lead-based paint or other lead contamination,
polychlorinated biphenyls ("PCBs") or asbestos or asbestos -containing materials or urea
formaldehyde foam insulation; or
(6) which contains radon gas;
(7) which contains materials generated by the historic operations of the
former San Rafael manufactured gas plant.
(c) fuel or chemical storage tanks, energized electrical conductors or
equipment, or natural gas transmission or distribution pipelines; and
(d) other potentially hazardous substances, materials, products or conditions.
Licensee shall take reasonable precautions to protect Licensee's Representatives from risks
of harm from Potential Environmental Hazards. PG&E has provided Licensee with an opportunity
to review any and all technical environmental reports relating to the property which reports have
been previously filed with relevant regulatory agencies. Licensee acknowledges that it has
previously evaluated the condition of the Property and all matters affecting the suitability of the
Property for the uses permitted by this License Agreement, including, but not limited to, the
Potential Environmental Hazards listed herein.
6. Licensee's Covenants.
(a) Licensee covenants and agrees, at Licensee's sole cost and expense, to
conduct its activities hereunder, and cause all of Licensee's Representatives to conduct their
activities hereunder, in compliance with all requirements set forth in the Covenant.
(b) Licensee covenants and agrees to erect and maintain during the term of this
License Agreement, temporary fencing within the Property at the location shown in Licensee's
Work Plan and approved by PG&E.
(c) Licensee covenants and agrees not to drill, bore, excavate or in any other
manner disturb the cap provided by the existing asphalt paving within the Property.
(d) Licensee covenants and agrees, at its sole cost and expense, to keep the
License area clean and free from rubbish, and debris.
(e) Licensee covenants and agrees, at its sole cost and expense, to promptly
remove and tow away any vehicles that may be abandoned, parked in designated "No Parking"
areas, or parked within the premises for periods exceeding 24 consecutive hours.
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(f) Licensee covenants and agrees, at Licensee's sole cost and expense,
promptly to comply, and cause all of Licensee's Representatives to comply, insofar as their
activities under this agreement, with (i) all laws, statutes, ordinances, rules, regulations,
requirements or orders of municipal, state, and federal authorities now in force or that may later be
in force, including, but not limited to, those laws which relate to the generation, use, storage,
handling, treatment, transportation or disposal of Hazardous Substances or to health, safety, noise,
environmental protection, air quality or water quality, (ii) with the conditions of any permit,
occupancy certificate, license or other approval issued by public officers relating to Licensee's
Activities, or Licensee's use or occupancy of the Property; and (iii) with any liens, encumbrances,
easements, covenants, conditions, restrictions and servitudes (if any) of record, or of which
Licensee has notice, which may be applicable to the Property (collectively, "Legal
Requirements") regardless of when they become effective, insofar as they relate to Licensee's
Activities or Licensee's use or occupancy of the Property. The judgment of any court of
competent jurisdiction, or the admission of Licensee in any action or proceeding against Licensee,
whether or not PG&E is a party in such action or proceeding, that Licensee has violated any Legal
Requirement relating to Licensee's Activities and Licensee's use or occupancy of the Property,
shall be conclusive of that fact as between PG&E and Licensee. Licensee shall furnish satisfactory
evidence of such compliance upon request by PG&E;
(g) Licensee covenants and agrees that Licensee shall not in any way interfere
or permit any interference with the use by PG&E of the Property. Interference shall include, but
not be limited to, any activity by Licensee that places any of PG&E's gas or electric facilities in
violation of any of the applicable provisions of General Order Nos. 95 (Overhead Electric), 112
(Gas), and 128 (Underground Electric) of the CPUC or to any other applicable provisions of the
laws and regulations of the State of California or other governmental agencies under which the
operations of utility facilities are controlled or regulated, including, but not limited to, the CPUC
and the Federal Energy Regulatory Commission (the "FERC"). Licensee shall not erect, handle,
or operate any tools, machinery, apparatus, equipment, or materials closer to any PG&E's high-
voltage electric conductors than the minimum clearances set forth in the High -Voltage Electrical
Safety Orders of the California Division of Industrial Safety; which minimum clearances are
incorporated herein by reference; but in no event closer than ten (10) feet to any energized electric
conductors or appliances.
(h) Licensee hereby covenants and agrees that Licensee and Licensee's
Representatives shall comply with any and all PG&E's on-site safety and security requirements
and any other rules and regulations that may be applicable to Licensee's Activities at the Property.
Licensee covenants and agrees to cooperate with PG&E and abide by any and all orders or
instructions issued by PG&E, its employees, agents or representatives. PG&E reserves the right to
restrict access to the Property in the event of fire, earthquake, storm, riot, civil disturbance, or other
casualty or emergency, or in connection with PG&E's response thereto, or if emergency repairs or
maintenance are required to PG&E facilities within or in the vicinity of the Property, or otherwise
when PG&E deems it advisable to do so, including in connection with events and emergencies
occurring or affecting PG&E's business operations located elsewhere than in the immediate vicinity
of the Property;
(i) Licensee covenants and agrees that Licensee shall conduct Licensee's
Activities in compliance with the Work Plan approved by PG&E and in such a manner so as to
protect the Property, PG&E's utility facilities, the environment and human health and safety.
Licensee shall not cause or permit any Hazardous Substances, as defined herein, to be brought
upon, produced, stored, used, discharged or disposed of on, the Property. PG&E recognizes that
Licensee intends to use this property for the parking of motor vehicles, and that such motor
vehicles normally contain motor oil, gasoline or other substances customarily associated with the
operation of motor vehicles, which may be Hazardous Substances, as defined herein. Therefore,
PG&E expressly exempts Licensee's use of the Property for the parking of motor vehicles
containing such Hazardous Substances as are customary for the operation of motor vehicles from
the prohibitions contained herein. PG&E further recognizes that in connection with the Licensee's
use of the Property for the purposes intended, there will be incidental spillage of gasoline, oil, and
transmission and brake fluids from, as well as the deposit of tire and brake dust by, automobiles
parked on the Property, which shall not be deemed included within the scope of the prohibitions
and indemnification provisions contain herein. In the event PG&E determines that Licensee's
Activities in any way endanger the Property, PG&E's utility facilities, the environment, or human
health and safety, PG&E may, at PG&E's sole discretion, require that Licensee halt Licensee's
Activities until appropriate protective measures may be taken to eliminate such endangerment to
PG&E's reasonable satisfaction. Licensee shall hold PG&E harmless from any claims in any way
resulting from any such halt by PG&E of Licensee's Activities. PG&E's right to halt activities
under this Section shall not in any way affect or alter Licensee's insurance or indemnity
obligations under this License Agreement, nor shall it relieve Licensee from any of Licensee's
obligations hereunder that pertain to health, safety, or the protection of the environment; and,
0) Licensee covenants and agrees to coordinate Licensee's Activities regarding
the license granted herein to strictly avoid any interference with the use by PG&E of the Property
and any adjoining lands owned by PG&E. Licensee shall not park any vehicle in such a manner to
restrict PG&E's access to its monitoring wells or other facilities within the License Area. PG&E
shall have the right to have a representative present during any and all of Licensee's Activities on
the Property.
7. Indemnification; Release.
(a) Licensee shall, to the maximum extent permitted by law, indemnify, protect,
defend and hold harmless PG&E, its parent corporation, subsidiaries, affiliates, and their officers,
managers, directors, representatives, agents, employees, transferees, successors and assigns (each,
an "Indemnitee" and collectively, "Indemnitees") from and against all claims, losses (including,
but not limited to, diminution in value), actions, demands, damages, costs, expenses (including, but
not limited to, experts fees and reasonable attorneys' fees and costs) and liabilities of whatever
kind or nature (collectively, "Claims"), which arise from or are in any way connected with
Licensee's Activities, or the entry on, occupancy or use of, the Property by Licensee or Licensee's
Representatives, or the exercise by Licensee of Licensee's rights hereunder, or the performance of,
or failure to perform, Licensee's duties under this License Agreement, including, but not limited to,
Claims arising out of. (a) injury to or death of persons, including but not limited to employees of
PG&E or Licensee (and including, but not limited to, injury due to exposure to EMFs and other
Potential Environmental Hazards in, on or about the Property); (b) injury to property or other
interest of PG&E, Licensee or any third party; (c) violation of any applicable federal, state, or local
laws, statutes, regulations, or ordinances, including all Legal Requirements relating to the
environment and including any liability imposed by law or regulation without regard to fault;
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(b) Licensee acknowledges that all Claims arising out of or in any way
connected with releases or discharges of a Hazardous Substance, or the exacerbation of a Potential
Environmental Hazard, occurring as a result of or in connection with Licensee's use or occupancy
of the Property, Licensee's Activities hereunder or the activities hereunder of any of Licensee's
Representatives, and all costs, expenses and liabilities for environmental investigations,
monitoring, containment, abatement, removal, repair, cleanup, restoration, remediation and other
response costs, including reasonable attorneys' fees and disbursements and any fines and penalties
imposed for Licensee's violation of any Legal Requirements relating to the environment or human
health, are expressly within the scope of the indemnity set forth above. PG&E recognizes that
Licensee intends to use this property for the parking of motor vehicles. Therefore, PG&E
expressly exempts Licensee's use of the Property for the parking of motor vehicles containing such
Hazardous Substances as are customary for the operation of motor vehicles from the prohibitions
contained herein. PG&E further recognizes that in connection with Licensee's use of the Property
for the purposes intended, there will be incidental spillage of gasoline, oil, and transmission and
brake fluids from, as well as the deposit of tire and brake dust by, automobiles parked on the
Property, which shall not be deemed included within the scope of the prohibitions and
indemnification provisions contain herein.
(c) Licensee's use of the Property shall be at Licensee's sole risk and expense.
Licensee accepts all risk relating to Licensee's occupancy and use of the Property. PG&E shall not
be liable to Licensee for, and Licensee hereby waives and releases PG&E and the other
Indemnitees from, any and all liability, whether in contract, tort or on any other basis, for any
injury, damage, or loss resulting from or attributable to an occurrence on or about the Property.
(d) Licensee shall, to the maximum extent permitted by law, indemnify, protect,
defend and hold Indemnitees harmless against claims, losses, costs (including attorneys' fees and
costs), liabilities and damages resulting from the failure of Licensee to comply with the insurance
requirements set forth in paragraph 10 of this License Agreement, and from the failure any of
Licensee's consultants, contractors or subcontractors, to comply with the insurance requirements
set forth in Exhibit `B." The provisions of this Section 7 shall survive the expiration or
termination of this License Agreement.
8. Additional Activities. Licensee shall not perform any activities, investigations or
tests beyond Licensee's Activities specifically authorized by this License Agreement without the
prior written consent of PG&E, which consent shall be at PG&E's sole and absolute discretion, and
the prior consent, to the extent required by applicable law or regulation, of any governmental
authority having jurisdiction, including, but not limited to, the CPUC or the FERC.
9. Reserved Rights. PG&E reserves the right to use the Property for any and all
purposes that will not unreasonably interfere with Licensee's enjoyment of the rights hereby
granted. PG&E reserves the right to make use of the Property for such purposes as it may deem
necessary or appropriate if, and whenever, in the interest of its service to its patrons or consumers
or the public, it shall appear necessary or desirable to do so. Licensee shall not make use of the
Property in any way that will endanger human health or the environment, create a nuisance or
otherwise be incompatible with the use of the Property by PG&E or others entitled to use the
Property.
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10. Compliance: Safetv; Insurance. Licensee shall comply, at Licensee's sole cost and
expense, with all applicable Legal Requirements when conducting Licensee's Activities and
Licensee shall obtain, at Licensee's sole cost and expense any and all necessary permits,
authorizations and approvals applicable to Licensee's Activities. PG&E shall have a right to
observe Licensee's Activities at any time to confirm Licensee's compliance with the requirements
of this License Agreement and applicable laws. PG&E understands and acknowledges that
Licensee is self-insured and participates with other public entities in a risk sharing pool, known as
the California Joint Powers Risk Management Authority (CJPRMA), for excess liability and
property damage coverage. Licensee shall provide PG&E with a Certificate of Coverage naming
PG&E, its officers, and employees, as additional covered parties in the amount of $1,500,000
above Licensee's self-insured retention amount of $500,000 for a total of $2,000,000, for all
liability arising out of Licensee's or Licensee's Representative's operations under this Agreement.
PG&E also understands that Licensee is self-insured for worker's compensation liability, and has
an insurance policy for worker's compensation liability in excess of the self-insured amount up to
$10 million. Licensee agrees to provide PG&E with a copy of the Binder evidencing such excess
worker's compensation insurance coverage. PG&E acknowledges that the provision of such
Certificate of Coverage and such Binder shall satisfy the Licensee's insurance obligations
hereunder. Licensee is also responsible for the compliance of Licensee's consultants, contractors
and subcontractors with the insurance requirements in Exhibit B, as appropriate, provided that
Licensee may, in the exercise of Licensee's reasonable judgment, permit Licensee's consultants,
contractors and subcontractors to maintain coverages and limits lower than those specified so long
as the coverages and limits required by Licensee are commercially reasonable in light of applicable
circumstances.
11. Mechanics' Liens. Licensee shall keep the Property free and clear of all
mechanics' liens arising, or alleged to arise, in connection with any work performed, labor or
materials supplied or delivered, or similar activities performed by Licensee or at Licensee's request
or for Licensee's benefit. If any mechanics' liens are placed on the property in connection with
Licensee's Activities set forth in this License Agreement, Licensee shall diligently pursue all
necessary actions to remove such liens from title, either by payment or by recording a lien release
bond in the manner specified in California Civil Code Section 3143 or any successor statute.
12. Notice. Any notices or communications hereunder shall be in writing shall be
personally delivered, or sent by first class mail, certified or registered, postage prepaid, or by
national overnight courier, with charges prepaid for next business day delivery, addressed to the
addressee party at the address or addresses listed below, or to such other address or addresses as
such party may from time to time designate in writing. Notices shall be deemed received upon
actual receipt of the notice by the party being sent the notice, or on the following business day if
sent by overnight courier, or on the expiration of three (3) business days after the date of mailing.
If to PG&E:
PG&E Land Services
111 Stony Circle
Santa Rosa, CA 95401
Attention: Brenda San Julian
If to Licensee:
City of San Rafael
Post Office Box 151560
San Rafael, CA 94915-1560
Fax: 415.458.5334
Attention: Chad Lynn
Parking Services Manager
13. Governing Law. This License Agreement shall in all respects be interpreted,
enforced, and governed by and under the laws of the State of California.
14. Entire Agreement. This License Agreement supersedes all previous oral and
written agreements between and representations by or on behalf of the parties and constitutes the
entire agreement of the parties with respect to the subject matter hereof. This License Agreement
may not be amended except by a written agreement executed by both parties.
15. Binding Effect. This License Agreement and the covenants and agreements herein
contained shall be binding on, and inure to the benefit of, the parties hereto and their respective
heirs, successors and assigns, subject to the limitations on assignment set forth in this License
Agreement.
16. Assip-nment. This License Agreement is personal to Licensee, and Licensee shall
not assign, transfer, convey or encumber the license and other rights herein granted or any portion
thereof or interest herein.
17. Attorneys' Fees. Should either party bring an action against the other party, by
reason of or alleging the failure of the other party with respect to any or all of its obligations
hereunder, whether for declaratory or other relief, and including any appeal thereof, then the party
which prevails in such action shall be entitled to its reasonable attorneys' fees (of both in-house
and outside counsel) and expenses related to such action, in addition to all other recovery or relief.
A party shall be deemed to have prevailed in any such action (without limiting the generality of the
foregoing) if such action is dismissed upon the payment by the other party of the sums allegedly
due or the performance of obligations allegedly not complied with, or if such party obtains
substantially the relief sought by it in the action, irrespective of whether such action is prosecuted
to judgment. Attorneys' fees shall include, without limitation, fees incurred in discovery, contempt
proceedings, and bankruptcy litigation. The non -prevailing party shall also pay the attorney's fees
and costs incurred by the prevailing party in any post judgment proceedings to collect and enforce
the judgment. The covenant in the preceding sentence is separate and several and shall survive the
merger of this provision into any judgment on this License Agreement. For purposes hereof, the
reasonable fees of PG&E's in-house attorneys who perform services in connection with any such
action shall be recoverable, and shall be based on the fees regularly charged by private attomeys
with the equivalent number of years of experience in the relevant subject matter area of the law, in
law firms in the City of San Francisco with approximately the same number of attorneys as are
employed by PG&E's Law Department.
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18. No Waiver. Any waiver with respect to any provision of this License Agreement
shall not be effective unless in writing and signed by the party against whom it is asserted. The
waiver of any provision of this License Agreement by a party shall not be construed as a waiver of
a subsequent breach or failure of the same term or condition or as a waiver of any other provision
of this License Agreement.
19. No Offsets. Licensee acknowledges that PG&E is executing this License
Agreement in its capacity as the owner of real property, and not in its capacity as a public utility
company or provider of electricity and natural gas. Notwithstanding anything to the contrary
contained herein, no act or omission of PG&E or its employees, agents or contractors as a provider
of electricity and natural gas shall abrogate, diminish, or otherwise affect the respective rights,
obligations and liabilities of PG&E and Licensee under this License Agreement. Further, Licensee
covenants not to raise as a defense to Licensee's obligations under this License Agreement, or
assert as a counterclaim or cross-claim in any litigation or arbitration between PG&E and Licensee
relating to this License Agreement, any claim, loss, damage, cause of action, liability, cost or
expense (including, without limitation, attorneys' fees) arising from or in connection with PG&E's
provision of (or failure to provide) electricity and natural gas.
20. No Dedication: No Third Party Beneficiary. The provisions of this License
Agreement are for the exclusive benefit of the parties and their successors and assigns, and shall
not be deemed to confer any rights upon any person except such parties and their successors and
assigns, subject to the limitations on assignment set forth in this License Agreement. No
obligation of a party under this License Agreement is enforceable by, or is for the benefit of, any
other third parties.
21. Miscellaneous. The captions in this License Agreement are for reference only and
shall in no way define or interpret any provision hereof. Except as otherwise expressly provided
herein, the parties agree that as to any obligation or action to be performed hereunder, time is of the
essence. If any provision of this License Agreement shall be invalid or unenforceable, the
remainder of this License Agreement shall not be affected thereby, and each provision of this
License Agreement shall be valid and enforced to the full extent permitted by law, provided the
material provisions of this License Agreement can be determined and effectuated. This License
Agreement may be executed in identical counterpart copies, each of which shall be an original, but
all of which taken together shall constitute one and the same agreement.
22. WAIVER OF JURY TRIAL; VENUE. PG&E AND LICENSEE EACH HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LICENSE
AGREEMENT, INCLUDING ANY CLAIM OF INJURY OR DAMAGE. PG&E AND
LICENSEE ALSO AGREE THAT THE VENUE OF ANY SUCH ACTION, PROCEEDING OR
COUNTERCLAIM SHALL BE IN THE COUNTY OF SAN FRANCISCO, CALIFORNIA.
THE COVENANTS OF THE PARTIES CONTAINED IN THIS SECTION SHALL SURVIVE
THE EXPIRATION OR TERMINATION OF THIS LICENSE AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this License Agreement as of the date
set forth below each signature, effective upon the Effective Date first written above.
"PG&E" "Licensee"
PACIFIC GAS AND ELECTRIC COMPANY,
a California corporation
� l
By:
Steve Coleman
Its: Director, Building and Land Services
Date:
EXHIBITS "A" and `B" attached
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City of San Rafael
By:
Its: CITY MANAGER
Date: 6/20/03
ATTEST:
J4�-M. LEOCINI, City Clerk
APPROVED AS TO FORM:
t,µ ) a..,z. -6_ 61 -11 -4 --
GARY T. RAGGHIANTI, City Attorney
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EXHIBIT B
INSURANCE REQUIREMENTS FOR LICENSEE'S CONSULTANTS, CONTRACTORS,
ANDSUBCONTRACTORS
Licensee's consultants, contractors,and subcontractors shall procure, carry and maintain the
following insurance coverage:
A. Workers' Compensation and Employers' Liability
1. Workers' Compensation insurance or self-insurance indicating compliance with any
applicable labor codes, acts, laws or statutes, state or federal.
2. Employers' Liability insurance shall not be less than One Million Dollars ($1,000,000) for
injury or death each accident.
B. Commercial General Liability
1. Coverage shall be at least as broad as the Insurance Services Office (ISO) Commercial
General Liability Coverage "occurrence" form, with no coverage deletions.
2. The limit shall not be less than One Million Dollars ($1,000,000) each occurrence/ Two
Million Dollars ($2,000,000) aggregate for bodily injury, property damage and personal
injury.
3. Coverage shall: a) By "Additional Insured" endorsement add as insureds PG&E, its
directors, officers, agents and employees with respect to liability arising out of work
performed by or for the Licensee; b) Be endorsed to specify that the Licensee's
consultant's, contractor's, or subcontractor's insurance is primary and that any insurance or
self-insurance maintained by PG&E shall not contribute with it.
C. Business Auto
Coverage shall be at least as broad as the Insurance Services Office (ISO) Business Auto
Coverage form covering Automobile Liability, code 1 "any auto."
2. The limit shall not be less than One Million Dollars ($1,000,000) each accident for bodily
injury and property damage.
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D. Additional Insurance Provisions
Before Licensee's consultants, contractors, or subcontractors commence performance of
work under this License Agreement, Licensee shall furnish PG&E with certificates of
insurance and endorsements of all required insurance for Licensee's consultants,
contractors or subcontractors..
2. The documentation shall state that coverage shall not be canceled except after thirty (3 0)
days prior written notice has been given to PG&E.
3. The documentation must be signed by a person authorized by that insurer to bind coverage
on its behalf and shall be submitted to:
Pacific Gas and Electric Company
Insurance Department - B24H
Post Office Box 770000
San Francisco, CA 94177
A copy of all such insurance documents shall be sent to PG&E's Land Agent as specified
under Notices in the body of the License Agreement.
4. PG&E may inspect the original policies or require complete certified copies, at any time.
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