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HomeMy WebLinkAboutCC Resolution 9821 (Beach Park Maintenance)RESOLUTION NO. 9821 A RESOLUTION AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael a contract, lease or agreement with Agreement between the City of San Rafael and Herbert A. Crocker & Company and William R. McDevitt for the Development and Maintenance of Two parcels of Public Real Property Fronting the San Rafael Canal, Including Beach Park. a copy of which is hereby attached and by this reference made a part hereof. 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 Monday the 21 day of April, 1997 by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT COUNCILMEMBERS: None ski-�..-� � .��.•r-N-�,�,.: JEANNE M. LEONCINI, City Clerk AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND HERBERT A. CROCKER & CO. AND WILLIAM H. MCDEVITT FOR THE DEVELOPMENT AND MAINTENANCE OF TWO PARCELS OF PUBLIC REAL PROPERTY FRONTING THE SAN RAFAEL CANAL This Agreement is made and entered into this 21st day of April, 1997, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and HERBERT A. CROCKER & CO. AND WILLIAM H. MCDEVITT ( hereinafter "DEVELOPERS"). RECITALS WHEREAS, CITY, by approval of Resolution #9575, granted DEVELOPERS a right of first refusal for a long-term lease of Beach Park (Parcel "A", described in Exhibit #1, attached and incorporated herein) for a period of ten (10) years, commencing on April 21, 1997; and, WHEREAS, CITY also owns property consisting of approximately twenty (20) feet of dry land and underwater property (Parcel `B", described in Exhibit #1, attached and incorporated herein) adjacent to DEVELOPERS property; and, WHEREAS, DEVELOPERS intend to and are in the process of redeveloping the adjacent "Dominic's" property, and are desirous of improving and maintaining, in a neat and natural condition, the adjacent City -owned Parcels "A" and `B" for the use of restaurant patrons and the general public; and, WHEREAS, CITY, in order to provide for the general health safety and welfare of the citizens of San Rafael, wants to improve and make accessible to the public Parcels "A" and "B", but does not have the funds available to make such improvements or to provide such maintenance. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Public Works Director, is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. DEVELOPERS. DEVELOPERS shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for DEVELOPERS. William H. McDevitt is hereby designated as the PROJECT DIRECTOR for DEVELOPERS. 1 COPY 2. CONDITION PRECEDENT. Parties agree this Agreement is conditioned upon the completion of the restaurant development on the adjoining "Dominics" property in accordance with plans proposed by Michael Rex, licensed architect, which are now being processed for approval. 3. DUTIES OF DEVELOPERS. DEVELOPERS shall perform the duties and/or provide services as follows: A. DEVELOPERS shall, at their own expense and without any cost to the CITY, improve and maintain Parcels "A" and `B" for the use of restaurant patrons and the public. B. Specifically, DEVELOPERS shall develop the two parcels with outdoor dining facilities, possibly yacht docking facilities, promenade walks, sports facilities such as volleyball, bocce ball, shuffleboard, snack and oyster bar to be provided, etc., all in accordance with plans prepared by Jan Krajeski, licensed landscape architect. C. DEVELOPERS agree to pay the cost of planning, installation and maintenance of these improvements. DEVELOPERS shall refurbish the existing dock. DEVELOPERS shall maintain the rip rap shore and existing metal sheet pile wall at a level equal to their present condition. DEVELOPERS shall repair all wooden appurtenances as necessary to insure adequate structural integrity and public safety. D. DEVELOPERS agree that public access will be provided to these Parcels on a daily basis from one-half hour before sunrise to one-half hour after sunset. DEVELOPERS shall be permitted to provide security fencing to the parcels, and shall be permitted to conduct concerts, weddings and other such gatherings on the parcels, as long as such events are scheduled in co-ordination with the City's Recreation Director and are conducted in conformance with City Park regulations. E. DEVELOPERS shall apply for and obtain all necessary development permits and approvals from CITY for the improvements described herein. 4. DUTIES OF CITY. A. CITY, in consideration of duties and services provided by developer in Section 2., above, shall permit developers to construct improvements described herein on Parcels A. and B. B. CITY shall extend the partially paved street between Yacht Club Drive and the entrance to the San Rafael Yacht Club leasehold with perpendicular parking along the southern boundary and parallel parking along the northern boundary with necessary striping, lighting, etc. Parking in this area will be limited to two hours. 2 5. CONSIDERATION. For the full performance of the duties and services described herein by DEVELOPERS, CITY shall perform the duties and services described in Section 3. 6. TERM OF AGREEMENT. The term of this Agreement shall be from the date of execution of this agreement and shall terminate on November 30, 2021. Upon agreement of the parties, this Agreement may be extended or renewed to coincide with any extension or renewal of the current restaurant lease. City agrees that it will not unreasonably withhold such renewal or extension. 7. TERMINATION. Either party may terminate this Agreement for cause upon ninety (90) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such thirty (30) day time period. 8. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party. However, the parties agree that the DEVELOPERS may assign this Agreement and performances hereunder to the lessee of the adjoining restaurant property or to another assignee upon written approval of the CITY. Such approval shall not be unreasonably withheld. 9. INSURANCE. A. During the term of this Agreement, DEVELOPERS shall maintain, at no expense to CITY, a comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage. B. The insurance coverage required of the DEVELOPERS by Section 9. A., shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution. 2. The insurance policy shall be endorsed for contractual liability and personal injury. 3. The insurance policy shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 4. DEVELOPERS shall provide to PROJECT MANAGER, (1) 3 Certificates of Insurance evidencing the insurance coverage required herein, and (2) specific endorsements naming CITY, its officers, agents, employees, and volunteers, as additional named insureds under the policy. 5. The insurance policy shall provide that the insurance carver shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to CITY's PROJECT MANAGER; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years; 7. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If it employs any person, DEVELOPERS shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both DEVELOPERS and CITY against all liability for injuries to DEVELOPERS' officers and employees. 10. INDEMNIFICATION. DEVELOPERS shall indemnify, release, defend and hold harmless CITY, its officers, agents, employees, and volunteers, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees and administrative costs, arising out of or resulting in any way, in whole or in part, from any acts or omissions, intentional or negligent, of DEVELOPERS or DEVELOPERS' officers, agents and employees in the performance of their duties and obligations under this Agreement. 11. NONDISCRIMINATION. DEVELOPERS 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. 12. COMPLIANCE WITH ALL LAWS. DEVELOPERS 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. DEVELOPERS shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. DEVELOPERS 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. 13. 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 Postai Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or 0 if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Dave Bernardi, Director of Public Works 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 TO CONTRACTOR: Herbert A. Crocker & Co. William H. McDevitt 30 El Portal #102 Sausalito, CA 94965 14. 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. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the DEVELOPERS and the CITY. B. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the DEVELOPERS and the CITY. C. 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. 15. 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 violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 16. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 5 17. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL AIDE T 7. BO Mayor ATTEST: M. LEOANI, City lerk APPRO .�M ' A G RAG Cij Attorney P DEVELOPERS HERBERT A. CROCKER & CO. WILLIAM H... MCDEVITT n Name: Title: T rn V, I 1 N