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HomeMy WebLinkAboutLR Access Agreement; Albert ParkACCESS AGREEMENT This ACCESS AGREEMENT ("Agreement") dated as of November 17, 2024 ("Effective Date"), is made by and between the City of San Rafael, a municipal corporation ("City"), and Marin Academy, a California nonprofit public benefit corporation ("Marin Academy"), whose address is 1600 Mission Avenue, San Rafael, California. City and Marin Academy are sometimes referred to herein as the "Parties." A. City owns certain real property located at 618 B Street, San Rafael, California, as shown on Exhibit attached hereto and incorporated herein by reference ("Albert Park"). B. City and Marin Academy are discussing a potential arrangement involving Marin Academy funding and/or undertaking certain improvement at Albert Park in exchange for City allowing Marin Academy some use of Albert Park pursuant to terms and conditions to be agreed upon by the Parties. C. Marin Academy and its agents and contractors desire access to Albert Park to conduct a survey of Albert Park ("Work") in connection with the potential arrangement described above. NOW THEREFORE, in consideration of the foregoing, which are incorporated herein by reference, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and on the terms and conditions contained herein, City and Marin Academy agree as follows: 1. Work. City agree to allow Marin Academy to enter and access Albert Park to undertake the Work pursuant to the following terms: a. Marin Academy shall perform any and all work or activities on Albert Park at its sole cost and expense and City shall not incur any cost or expense, except that City agrees to pay a total of $12,500 towards the cost of the survey, so long as Marin Academy pays all other costs and expense of the Work. b. Marin Academy shall perform all work in compliance with applicable federal, state, and local laws and regulations and any other applicable government oversight agency. C. Marin Academy will prevent the placement of any liens on Albert Park in any way associated with Marin Academy's entry onto Albert Park or the performance of the Work. Marin Academy shall pay, when due, all persons furnishing labor or materials in connection with any work to be performed by or on behalf of Marin Academy related to the Work and on or about Albert Park and shall keep Albert Park free and clear of any related mechanics' liens. If any lien is filed, Marin Academy shall cause such lien to be released and removed within thirty (30) days after Marin Academy first receives notice or obtains knowledge of the filing of such lien or encumbrance by satisfying the same or, if Marin Academy in its reasonable discretion and good faith determines that such lien or encumbrance should be contested, by obtaining a bond with respect to such lien or encumbrance. If Marin Academy fails to remove or bond over such lien, City may take such action as may be reasonably necessary to remove such lien, without the duty to investigate the validity of the lien (unless Marin Academy has commenced an action to contest, dispute or defend the claims of lienholders and has provided City with written notice of the pendency of the action, in which case Marin Academy shall bond over or otherwise cause such lien to be removed of record pending the resolution of the dispute), and Marin Academy 4875-3504-0501 v3 shall reimburse City for reasonable actual amounts expended in connection with removing such lien from the date of expenditure. d. Marin Academy's personnel may enter Albert Park between the hours of 8 a.m. and 5 p.m., Monday through Friday, only. e. No less than three (3) calendar days before Marin Academy desires entry upon Albert Park, Marin Academy shall give notice to City via email. Marin Academy and City shall coordinate regarding the persons designated for the purpose of providing notice regarding access to Albert Park. f. At no time shall Marin Academy allow any waste, hazardous materials or substances, equipment, tools or other materials to be stored on Albert Park. g, Marin Academy's entry shall not damage harm, or negatively affect Albert Park, or its buildings, hardscape, landscape, improvements, utilities or personal or the public at, about or using Albert Park. The Work shall not impede access to Albert Park. Marin Academy shall promptly bring to City' attention any damage and shall repair or replace any damage to Albert Park, its buildings, hardscape, landscape, improvements or personal or the public located at or about Albert Park, caused by or affected by Marin Academy's entry onto Albert Park or the Work. All such repairs or replacement shall be performed by Marin Academy, at Marin Academy's sole cost and expense, as directed by City, to City' satisfaction. 2. Term. This Agreement shall become effective upon execution by City and Marin Academy, and submission to and approval by City of required liability insurance set forth in Section 5, and shall terminate following completion of the Work. 3. Assumption of Risk and Releases. Marin Academy and its agents, employees, invitees, representatives, assigns, heirs, spouses, successors -in -interest, executors, administrators, consultants, contractors and subcontractors (collectively, "Releasees") entering Albert Park shall do so at their own risk. On behalf of itself and its Releasees, Marin Academy assumes all risk of entering Albert Park and performing the Work and hereby releases City and its elected and appointed officials, partners, members, directors, officers, agents, attorneys, contractors, employees, volunteers, tenants, customers and invitees ("City Parties") from any claim, demand, liability, obligation, cost, damage, expense, harm, injury to or death of anyone, including Releasees or their respective officers, employees or agents, or for any damage or harm to anyone or repair or replacement of any property of Releasees or Albert Park, its buildings, hardscape, landscape, improvements, utilities or personal property arising from any cause. This release applies to all potential future claims arising out of this Agreement and Marin Academy on behalf of itself and the Releasees agree to waive any and all rights pursuant to Section 1542 of the California Civil Code, which reads as follows: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." 4. Indemnification. Marin Academy shall indemnify, defend (with counsel acceptable to City), and hold City and all City Parties harmless from and against, without limitation, any and all obligations, losses, injuries, death, damages, claims, liens, costs, expenses, demands, liabilities, penalties, cleanup and investigation costs, including but not limited to reasonable 4875-3504-0501 v3 2 attorney's fees and costs, (collectively, the "Claims") caused in whole or in part by: (i) any act or omission by Marin Academy, its employees, agents, consultants or other contractors in connection with this Agreement; and (ii) the breach by Marin Academy or any of Marin Academy's employees, agents, consultants or other contractors of any of the terms of this Agreement. This indemnity shall survive the termination or expiration of this Agreement. 5. Insurance. This Agreement shall not be effective until the evidence of insurance by valid certificates naming City as an additional insured, as required by this paragraph is delivered by Marin Academy to and approved by City. Marin Academy and its consultants and or contractors entering Albert Park or performing the Work shall at all times during the term of this Agreement maintain the following insurance policies with insurers having an A.M. Bests' rating of no less than A:VII: a. Commercial General Liability Insurance by the terms of which the Indemnitees are named, by endorsement, as additional insureds and are indemnified against liability for damage or injury in an amount not less than Two Million Dollars ($2,000,000.00) combined single limit bodily injury and property damage liability per occurrence, or the current limit of liability carried, whichever is greater, for the operations of Marin Academy's contractor under this Agreement. This liability insurance shall include automobile liability, personal injury and contractual liability. b. Worker's Compensation Insurance as required by the State of California and Employer's Liability Insurance in an amount not less than Two Million Dollars ($2,000,000.00) per accident. The insurer shall waive all rights of subrogation against Indemnitees for losses arising from work performed under this Right of Entry Permit. C. Each policy or certificate of insurance acquired pursuant to this paragraph must state, by endorsement, (i) that not less than thirty (30) days' written notice will be given to City prior to cancellation or material change in coverage; and (ii) that such policy or policies and the coverage evidenced thereby are primary and City' insurance is noncontributing with respect to such primary coverage. 6. Assignment. Marin Academy shall not assign or otherwise transfer this Agreement and any purported assignment or transfer shall automatically revoke the Agreement. 7. Compliance with Laws. Marin Academy shall obtain and maintain all permits and approvals required for the activities under this Agreement and for the performance of the Work and shall comply with all laws now in effect or that become effective during the term of this Agreement. 8. No Dedication/Rights. Nothing contained in this Agreement shall be deemed a transfer, establishment, gift or dedication of any portion of Albert Park to Marin Academy for any purpose whatsoever. This Agreement shall be strictly limited to and for the purposes expressed within. This Agreement shall not be construed to create, establish or grant any real property or other rights to Marin Academy in Albert Park. 9, Entire Agreement. This Agreement constitutes the entire agreement between City and Marin Academy pertaining to Marin Academy's entry upon Albert Park. 10. Governing Law; Attorneys' Fees. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of California. In the event that either 4875-3504-0501 0 party institutes any action, suit or other dispute resolution proceeding based on Agreement against the other party, the prevailing party is entitled to receive all costs and expenses, associated therewith including but not limited to reasonable attorneys' fees and courts costs. Venue shall be in Superior Court of the County of Alameda, California. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Each party shall be bound by its own telecopied, scanned, electronic or digital signature and shall accept the telecopied, scanned, electronic or digital signature of the other party. 12. Authority to Contract. Marin Academy hereby represents and warrants to City that in accordance with its by-laws and all operative rules and procedures, it has duly authorized the undersigned officer of Marin Academy to enter into and execute this Agreement and to carry out, fulfill and perform all promises, conditions and obligations contained herein. City hereby represent and warrant to Marin Academy that it has the authority to enter into this Agreement. City of San Rafael, a municipal corporation Cristine Alilovich By: Cristine Alilovich (Nov 17, 202410:52 PST) Cristine Alilovich, City Manager Date: Nov 17, 2024 Approved as to form: Wed T Edstely Robot F E05(Cill (Nov IS...24 17 57 PST Robert Epstein, City Attorney Marin Academy, a California nonprofit public benefit corporation By: LZ=— Name: _Anne Travis Brownley Its: Head of School and CEO By Name. Its ATTEST: City Clerk 82tir. c� Itla t1w, %a,% 83 cti—,i fw iNov 18. 20133 PST, Lindsay Lara, City Clerk 4875-3504-0501 0 4 Exhibit Depiction of Albert Park 1. MEF?WUL UF mmili �j F:Ta,bempl ONOM MV99 U d J, SI-)O SVC ..... ..... StNRAFAELOTY 144 5TH 01 S4,RAFAEL,CA%MN, S.C9 JZ,,s yes Fedmkn (I Ss,Waa Kt:;)t-:r)C:0. R PROPERTY CHARACTERISTICS '041 PER] WX L11 19 4875-3504-0501 0 5 RAF` F 2 h V'VITH p' 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: Library & Recreation Project Manager: Catherine Quffa Extension: 3078 Contractor Name: Marin Academy Contractor's Contact: Karen Jacobsen Contact's Email: kjacobsen@ma.org ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE N/A Check/Initial 1 Project Manager b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org N/A 2 City Attorney a. Review, revise, and comment on draft agreement 11/4/2024 and return to Project Manager ® Lisa b. Confirm insurance requirements, create Job on 11/12/2024 Maxwell PINS, send PINS insurance notice to contractor ❑X 3 Department Director Approval of final agreement form to send to 11/4/2024 0 _CGQ_ contractor 4 Project Manager Forward three (3) originals of final agreement to 11/5/2024 ®CGQ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑x N/A agendized for City Council approval * *City Council approval required for Professional Services 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 Date of City Council approval CONTINUE ROUTING PROCESS WITH HARD COPY enter a date. 6 Project Manager Forward signed original agreements to City 11/12/2024 CGQ City Attorney Attorney with printed copy of this routing form 7 Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS , and bonds City Manager / Mayor (for Public Works Contracts) 9 Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager Access Agreement City of San Rafael and Marin Academy Final Audit Report Created: 2024-11-15 By: Laraine Gittens (laraine.gittens@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAAI9s zigOIb7H7bA_6jnbA-xe3ycwebD2 2024-11-18 "Access Agreement City of San Rafael and Marin Academy" Hist ory Document created by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2024-11-15 - 5:34:16 PM GMT 04 Document emailed to rob.epstein@cityofsanrafael.org for signature 2024-11-15 - 5:38:42 PM GMT Email viewed by rob.epstein@cityofsanrafael.org 2024-11-15 - 8:56:56 PM GMT 6p Signer rob.epstein@cityofsanrafael.org entered name at signing as Robert F. Epstein 2024-11-15 - 8:57:29 PM GMT d0 Document e-signed by Robert F. Epstein (rob.epstein@cityofsanrafael.org) Signature Date: 2024-11-15 - 8:57:31 PM GMT - Time Source: server P,+ Document emailed to Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) for approval 2024-11-15 - 8:57:33 PM GMT Email viewed by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) 2024-11-15 - 9:37:11 PM GMT 6� Document approved by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) Approval Date: 2024-11-15 - 9:37:31 PM GMT - Time Source: server 7-4 Document emailed to cristine.alilovich@cityofsanrafael.org for signature 2024-11-15 - 9:37:33 PM GMT Email viewed by cristine.alilovich@cityofsanrafael.org 2024-11-17 - 6:52:17 PM GMT 0 Adobe Acrobat Sign 6o Signer cristine.alilovich@cityofsanrafael.org entered name at signing as Cristine Alilovich 2024-11-17 - 6:52:41 PM GMT 6o Document e-signed by Cristine Alilovich(cristine.alilovich@cityofsanrafael.org) Signature Date: 2024-11-17 - 6:52:43 PM GMT - Time Source: server P- 4 Document emailed to brenna.nurmi@cityofsanrafael.org for signature 2024-11-17 - 6:52:44 PM GMT Email viewed by brenna.nurmi@cityofsanrafael.org 2024-11-18 - 3:32:47 PM GMT 6e Signer brenna.nurmi@cityofsanrafael.org entered name at signing as Brenna Nurmi (for) 2024-11-18 - 3:33:11 PM GMT 6o Document e-signed by Brenna Nurmi (for) (brenna.nurmi@cityofsanrafael.org) Signature Date: 2024-11-18 - 3:33:13 PM GMT - Time Source: server 5 Agreement completed. 2024-11-18 - 3:33:13 PM GMT Adobe Acrobat Sign