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HomeMy WebLinkAboutFD License Agreement; 308 & 326 Mission Avenue Aldersly RetirementLICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement"), dated Jul 14, 2023 , is made by and between 308 and 326 Mission Ave Aldersly Retirement ("Property Owner") and the CITY OF SAN RAFAEL, a municipal corporation ("City"). RECITALS Property Owner owns the real property located at 326 and 308 Mission Ave. San Rafael, California (the "Property"). City is a municipal corporation organized as a charter city under the laws of the State of California. Property Owner has offered to allow City's Fire Department to conduct training exercises on the Property and is willing to permit City to use the Property in accordance with the terms and conditions of this Agreement. FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the parties agree as follows: 1. GRANT OF LICENSE. Property Owner hereby grants to City, subject to all of the conditions set forth herein, a non-exclusive, revocable License ("License") for the limited purpose of conducting San Rafael Fire Department training exercises on the Property as outlined in Section 4 - "Use," together with necessary rights of ingress and egress to, from and over the Property for the permitted Use. 2. TERM/TERMINATION. The term of this Agreement shall commence July 5, 2023 and shall continue until July 31, 2023. In addition, either party may terminate this Agreement by giving 48 hours' written notice to the other party. 3. LICENSE FEE. Based upon City's status as a public agency, Property Owner agrees to waive any license fee for use of the Property as provided in this Agreement. 4. USE. City shall use the Property only as follows: Breaching of walls, breaking windows, cutting of roof, breaching doors, laying hose in walk ways, search and rescue training, general chainsaw and smoke machine usage. City will give Property Owner prior notice of its training activities during the Term of this Agreement. All of City's activities conducted on the Property shall be performed in a safe and professional manner. City shall take protective measures necessary to protect persons and property adjacent to the Property during and after City's training exercises. This License is made subject and subordinate to the prior and continuing right of Property Owner, their successors and assigns, to use the Property. This License is made subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens and claims of title which may affect the Premises and the Property. City shall not do or permit anything to be done in, on or about the Property, or bring or keep anything in, on or about the Property, which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated by any public authority. No hazardous materials shall be located in, handled, stored or otherwise kept at any time upon the Premises, save for those used in the San Rafael Fire Department training exercises. Each party shall bear full and exclusive responsibility for any release of hazardous or nonhazardous chemicals or substances to the extent arising from its use of the Property. In the event of such release, the party responsible shall immediately notify the other party. Each party shall be solely responsible for all claims and expenses associated with the response to, removal and remediation of the release for which such party is responsible, including, without limit, payment of fines or penalties levied against the other party by any agency as a result of the release, and shall hold harmless, indemnify and defend (with counsel satisfactory to the other party) the other party from any claims arising from such release. This indemnification shall survive the termination of this Agreement. In acknowledgment the parties agree that upon termination of City's use of the Property pursuant to this Agreement, City shall have no obligation to make any repairs to or restore the Property to its condition prior to the effective date of this License, or to take any action at all other than removing City -owned property or equipment from the Property. 5. ASSUMPTION OF RISK. City shall assume all risk of damage to any property of City and any injury to persons upon the Property associated with its access to or use of the Property for any training exercises allowed under the terms of this Agreement, except for any damage or injury caused solely by the active negligence or willful misconduct of Property Owner. City has inspected and acknowledges the condition of the Premises and releases the Property Owner from any and all liability arising from the use thereof. 6. INDEMNITY AND INSURANCE. Indemnity City shall release, defend, indemnify, keep and save harmless Property Owner and his heirs, successors and assigns collectively, "Indemnitees") from and against any and all liability, suits, claims or actions arising out of any injury or injuries to, or death or deaths of, persons or property that may occur, or that may be alleged to have occurred, from any cause or causes whatsoever, while in, upon, about, or in any way connected with the use of the Property pursuant to this License Agreement by City, its agents, employees, contractors, subcontractors or invitees. Provided, however, that the foregoing shall not apply to any claims for loss, damage, injury or liability caused solely by the gross negligence or willful misconduct on the part of the Indemnitees. This indemnity shall survive the termination of this Agreement. Insurance. The City of San Rafael has no commercial general liability insurance coverage. As permitted under Government Code Section 990, the City is self -insured for general liability for the first $750,000.00. The City participates in a public entity excess liability "pool", the California Joint Powers Risk Management Authority (CJPRMA), for additional liability coverage in excess of the initial $750,000.00. GENERAL PROVISIONS. 7.1 Severability. If any provision of this License shall be for any reason unenforceable, in any respect, such unenforceability shall not affect other provisions of the License. 7.2 Entire Agreement. This Agreement, including any attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior understanding or agreement, oral or written. No prior agreement or understanding pertaining to any such matter shall be effective. This Agreement may not be amended or modified except by a written agreement executed in writing only by authorized representatives by both parties. 7.3 Notices. All communications relating to the day-to-day activities of this Agreement shall be exchanged between Property Owner and City's designated representative. All communications regarding interpretation of the terms of this Agreement and changes thereto shall be in writing. Any notice required or permitted to be given hereunder, including notice of termination, shall be in writing and may be given by personal delivery, mail or email to the designated representative of the parties set forth below: If to City: Ryan Goodwin, Fire Captain Training Coordinator San Rafael Fire Department 1375 Fifth Avenue San Rafael, CA 94901 (415) 485-3000 Email: roan.poodwinr@,cityofsanrafael.org If to Owner: Shannon Brown, Executive Director-Aldersly, 326 Mission Avenue San Rafael, CA 94901 Phone: 520-360-3501 Email: shannonbrown(@alderslv.com 7.4 Time of Essence. Time is and shall be of essence of this Agreement and of each and every provision contained in this Agreement. 7.5 Acceptance of Condition of Premises City will accept use of the Property in an "as is" condition, with no warranty, express or implied, as to the condition of the Premises, including its suitability for the use intended by City. 7.6 Consent. Unless otherwise specifically provided, whenever under this Agreement the consent or approval of either party is required or a determination must be made by either party, no such consent or approval shall be unreasonably withheld or delayed and all such determinations shall be made on a reasonable basis and in a reasonable manner. 7.7 Authority. Each individual executing this Agreement on behalf of City and Property Owner represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said party. 7.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the day and year first above written. CITY OF SAN RAFAEL fhifiur2 N1,10vich Cristine Ali lovich, City Manager ATTEST: L.Yitysct.N Lam, Lindsay 1, -,7: ,,. 17, 202314:30 PDT) LINDSAY LARA, City Clerk APPROVED AS TO FORM: _�11--C- ,�A GENEVIEVE COYLE, Assistant City Attorney Signature: Email: city.clerk@cityofsanrafael.org PROPERTY OWNER t3>Ov1lMl1 Name: Title: 1�—' [ i ce' By --- Name: Title: AMENDMENT TO LICENSE AGREEMENT THIS AMENDMENT to the License Agreement ("Agreement") by and between ALDERSLY RETIREMENT (hereinafter "Property Owner") and CITY OF SAN RAFAEL (hereinafter "City"), is made and entered into as of Jul 14, 2023 RECITALS WHEREAS, the City and Property Owner are entering into the Agreement under which the City's Fire Department is permitted to use Property Owner's Property to conduct training exercises; and WHEREAS, pursuant to Section 4 of the Agreement, the City's authorized use of the Property includes breaching of walls, breaking windows, cutting of roof breaching doors, laying hose in walk ways, search and rescue training, general chainsaw and smoke machine usage; and WHEREAS, the City is expected to leave the Property in a damaged, destroyed, compromised, unsafe, and/or unhabitable condition for which the City is not assuming any liability or responsibility; and WHEREAS, Property Owner has obtained or is in the process of obtaining demolition permits for the Property and is planning to demolish the Property following expiration of the Term of the Agreement; and WHEREAS, the parties wish to enter into this Amendment, coincident with entering into the Agreement, to amend terms of the Agreement as set forth herein. AMENDMENT TO AGREEMENT NOW, THEREFORE, the parties hereby amend the Agreement as follows: 1. Section 4. Use, is amended to add the following: Upon expiration of the Term, City shall "red tag" the Property by affixing a legal notice that it is unsafe for occupancy. Property Owner agrees not to allow any occupancy use of the Property following expiration of the Term. Section 5. Assumption of Risk, is replaced in its entirety as follows: a. City shall assume all risk of any injury to persons (including death) upon the Property that occur during the Term of this Agreement and is associated with its access to or use of the Property for any training exercises allowed under the terms of this Agreement, except for any damage or injury caused solely by the active negligence or willful misconduct of Property Owner. City has inspected and acknowledges the condition of the Premises and releases the Property Owner from any and all liability arising from the use thereof. b. City expressly disclaims, and does not assume, any risk of damage to the Property, or of any injury to persons (including death) upon the Property that occur after expiration of the Term of this Agreement. c. Property Owner acknowledges and agrees that the authorized uses are expected to cause damage or destruction to the Property, and that City will leave the Property in a damaged, destroyed, compromised, unsafe, and/or unhabitable condition upon the expiration of the Term of this Agreement. Property Owner acknowledges such condition of the Property and releases City from any and all liability arising from or in connection with the condition of the Property upon and after expiration of the Term of this Agreement. Property Owner shall assume all risk of damage to the Property, and all injury to persons (including death) upon the Property that occurs after expiration of the Term of this Agreement. Indemnity paragraph to Section 5, Indemnity and Insurance, is replaced in its entirety as follows: Indemnity. Except as expressly provided below, City shall release, defend, indemnify, keep and save harmless Property Owner and his heirs, successors and assigns collectively, "Indemnitees") from and against any and all liability, suits, claims or actions ("Claims") arising out of any injury or death of persons or property that may occur, or that may be alleged to have occurred, from any cause or causes whatsoever, while in, upon, about, or in any way connected with the use of the Property pursuant to this License Agreement by City, its agents, employees, contractors, subcontractors or invitees. Provided, however, that the foregoing shall not apply to any claims for loss, damage, injury or liability caused solely by the gross negligence or willful misconduct on the part of the Indemnitees. This indemnity shall survive the termination of this Agreement. injury or liability caused solely by the gross negligence or willful misconduct on the part of the Indemnitees. This indemnity shall survive the termination of this Agreement. The foregoing indemnity shall not apply to any Claims arising out of any damage or injury to the Property, or to any Claims arising out of any injury or death of any person that may occur, or that may be alleged to have occurred, after expiration of the Term of this Agreement. Insurance clause is not amended.] 4. Except as specifically amended herein, all of the other provisions, terms and obligations of the Agreement between the parties shall remain valid and shall be in full force. IN WITNESS WHEREOF, the parties have executed this Amendment on the day, month, and year first above written. CITY OF SAN RAFAEL Cnkia AXovich Cristine Alilovich (Jul 14, 2023 17:24 PDT) UK16I INt ALiLuvlUn, L-ily ivianager ATTEST: [.,uu7say [.psi Lindsay Lara Jul 1T.202314:30 POT) LINDSAY LARA, City Clerk APPROVED AS TO FORM: 7 GENEVIEVE COYLE, Assistant City Attorney PROPERTY OWNER Name: S; 'oro" L�Y7Jl.� r1 Title: E*e Name: Title: CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Fire Project Manager: Captain Ryan Goodwin Extension: 5529 Contractor Name: Cahill Contractors Contractor's Contact: Casey Hudson Contact's Email: chudson@cahill-sf.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE n/a Check/Initial X� 1 Project Manager a. Email PINS Introductory Notice to Contractor 6/28/2023 b. Email contract (in Word) and attachments to City City Attorney Attorney c/o Laraine.Gittens@cityofsanrafael.org a. Review, revise, and comment on draft agreement ~6/28/2023 2 and return to Project Manager n/a ❑X b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ❑x 3 Department Director Approval of final agreement form to send to Ci ick or Lai, contractor to enter a Project Manager Forward three (3) originals of final agreement to date. 4 Click here to Project Manager contractor for their signature enter a date. 5 When necessary, contractor -signed agreement ❑X N/A agendized for City Council approval * . *City Council approval required for Professional Services ❑X Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to PRINT Project Manager Date of City Council approval enter a date. CONTINUE ROUTING PROCESS WITH HARD COPY 6 Forward signed original agreements to City 7/14/2023 DJ Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) City Manager / Mayor Agreement executed by City Council authorized 9 official City Clerk Attest signatures, retains original agreement and 10 forwards copies to Project Manager Aldersly License Agreement and Amendment Final Audit Report 2023-07-17 Created: 2023-07-14 By: Laraine Gittens (laraine.gittens@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAAyMsAh4-TRR05ELhv1CiNKdobHANGIsSF "Aldersly License Agreement and Amendment" History Document created by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2023-07-14 - 7:21:44 PM GMT- IP address: 199.88.113.8 E-4' Document emailed to Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) for signature 2023-07-14 - 7:32:37 PM GMT Email viewed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) 2023-07-14 - 9:19:11 PM GMT- IP address: 104.47.64.254 !�© Document e-signed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) Signature Date: 2023-07-14 - 9:20:23 PM GMT - Time Source: server- IP address: 199.88.113.8 P4 Document emailed to cristine.alilovich@cityofsanrafael.org for signature 2023-07-14 - 9:20:26 PM GMT Email viewed by cristine.alilovich@cityofsanrafael.org 2023-07-15 - 0:23:17 AM GMT- IP address: 104.47.65.254 &0 Signer cristine.alilovich@cityofsanrafael.org entered name at signing as Cristine Alilovich 2023-07-15 - 0:24:15 AM GMT- IP address: 73.170.251.162 60 Document e-signed by Cristine Alilovich (cristine.alilovich@cityofsanrafael.org) Signature Date: 2023-07-15 - 0:24:17 AM GMT - Time Source: server- IP address: 73.170.251.162 �'y Document emailed to lindsay.lara@cityofsanrafael.org for signature 2023-07-15 - 0:24:20 AM GMT Email viewed by lindsay.lara@cityofsanrafael.org 2023-07-17 - 9:30:00 PM GMT- IP address: 104.47.65.254 i�© Signer lindsay.lara@cityofsanrafael.org entered name at signing as Lindsay Lara 2023-07-17 - 9:30:36 PM GMT- IP address: 67.169.52.201 0 Adobe Acrobat Sign 6© Document e-signed by Lindsay Lara (lindsay.lara@cityofsanrafael.org) Signature Date: 2023-07-17 - 9:30:38 PM GMT - Time Source: server- IP address: 67.169.52.201 Agreement completed. 2023-07-17 - 9:30:38 PM GMT 0 Adobe Acrobat Sign