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HomeMy WebLinkAboutReso 38-2018 (18-89)City of South San Francisco P.O. Box 711 (City Hall, • 400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 38 -2018 File Number: 18 -89 Enactment Number: RES 38 -2018 RESOLUTION APPROVING THE TRANSFER OF OWNERSHIP OF A MODULAR TRAILER INSTALLED AT THE BOCCE COURTS AT ORANGE MEMORIAL PARK TO THE ITALIAN AMERICAN CITIZENS CLUB AND EXECUTING A NEW LEASE AGREEMENT TO DEFINE THE TERMS AND CONDITIONS FOR THE ITALIAN AMERICAN CITIZENS CLUB'S USE OF THE TRAILER ON CITY PROPERTY. WHEREAS, pursuant to a Lease Agreement between the City of South San Francisco ( "City ") and the Italian American Citizens Club (IACC) dated January 29, 1999 ( "Original Lease "), IACC has leased a City -owned trailer ( "Trailer ") located at the bocce courts at Orange Memorial Park; and WHEREAS, the Trailer has been used by IACC for club activities, including facilitation of the use of the bocce courts and related community activities; and WHEREAS, the condition of the Trailer has deteriorated to such an extent that the cost of repair exceeds the worth of the Trailer and the Trailer has no value to the City; and WHEREAS, the City and IACC desire to transfer ownership of the Trailer from the City to the IACC for the purchase price of $1.00 by executing a Purchase and Sale Agreement, and sale of the Trailer serves a public purpose as the IACC is a City co- sponsored group, and IACC's continued use of the Trailer for IACC activities will promote the public's use and enjoyment of the bocce courts at Orange Memorial Park; and WHEREAS, the transfer of ownership necessitates a new Lease Agreement that defines the terms and conditions for IACC's use of the trailer on City property; and WHEREAS, execution of the Purchase and Sale Agreement and the new Lease Agreement will immediately terminate the Original Lease, notwithstanding any provision to the contrary that may be contained in the Original Lease. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby takes the following actions: City of South San Francisco Page 1 File Number: 18 -89 Enactment Number: RES 38 -2018 Approves the transfer of ownership of the Trailer to the IACC, and Approves the Purchase and Sale Agreement to formalize the transfer of ownership, in a form substantially similar to the attached Exhibit A; and Approves the new Lease Agreement defining the terms and conditions for IACC's use of the trailer on City property, in a form substantially similar to the attached Exhibit B. BE IT FURTHER RESOLVED by the City Council of the City of South San Francisco that the City Manager is hereby authorized to execute the Purchase and Sale Agreement and Lease Agreement with the IACC on behalf of the City of South San Francisco; to make any revisions, amendments, or modifications to those Agreements, deemed necessary to carry out the intent of this Resolution which do not materially alter or increase the City's obligations thereunder, subject to approval as to form by the City Attorney; and to take any other related action necessary to further the intent of this resolution. At a meeting of the City Council on 3/14/2018, a motion was made by Pradeep Gupta, seconded by Mark Addiego, that this Resolution be adopted. The motion passed. Yes: 4 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Gupta, and Councilmember Addiego Absent City of South San Francisco Page 2 1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (“this Agreement”) is made and entered into as of ________ (the “Effective Date”), by and between the City of South San Francisco, a municipal corporation (“City”), and South San Francisco Italian American Citizens Club, a non-profit organization (“IACC”). City and IACC are collectively referred to herein as the “Parties.” RECITALS A.Pursuant to a Lease Agreement between the Parties dated January 29,1999 (“Original Lease”), IACC has leased a City-owned trailer (“Trailer”) located at the bocce courts at Orange Memorial Park. B.The Trailer has been used by IACC for club activities, including facilitation of the use of bocce courts and related community activities. C.The condition of the trailer has deteriorated to such an extent that the cost of repair exceeds the worth of the Trailer and the Trailer has no value to the City. C.Pursuant to a separate Lease Agreement executed concurrently herewith, the Parties intend to terminate the Original Lease and the City intends to lease to IACC the portion of land at the bocce courts at Orange Memorial Park where the Trailer is currently located. D.The City now desires to sell and IACC intends to buy the Trailer located at Orange Memorial Park bocce courts. E.Sale of the Trailer serves a public purpose as the IACC is a City co-sponsored group, and the transfer to IACC and continued use of the Trailer for IACC activities will promote the public’s use and enjoyment of the park’s bocce courts. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties, City and IACC hereby agree as follows: 1.INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement as if set forth in full. 2.PURCHASE AND SALE. 2.1. Agreement to Buy and Sell. Subject to the terms and conditions set forth herein, City agrees to sell the Trailer to IACC, and IACC hereby agrees to acquire the Trailer from Seller. 2.2. Purchase Price. The purchase price for the Trailer to be paid by Buyer to Seller is One Dollar ($1.00). Exhibit A - Page 1 2 2.3. Conveyance of Title. Upon payment of purchase price, City will deliver marketable title of the Trailer to IACC, clear of all title, interest and liability. City has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Trailer, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, or other matters affecting the Trailer. 2.4 No Guarantees or Warranties. The Trailer will be conveyed by City to IACC in an “as is” condition, with no warranty, express or implied, by City as to the Trailer’s fitness for a particular purpose or as to its physical condition including, but not limited to, the appearance, structural strength or the presence of known or unknown faults or hazardous conditions. 3.INDEMNIFICATION. To the fullest extent allowed by law, IACC shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees, and agents from and against any or all loss, liability, expense, claim, costs (including reasonable costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from this Agreement or the use of the Trailer. 4.ASSIGNMENT. Absent an express signed written agreement between the Parties to the contrary, neither City nor IACC may assign its rights or delegate its duties under this Agreement without the express written consent of the other, which consent may be withheld for any reason. No permitted assignment of any of the rights or obligations under this Agreement shall result in a novation or in any other way release the assignor from its obligations under this Agreement. 5.MISCELLANEOUS. 5.1. Attorneys’ Fees. In the event that either party to this Agreement commences any legal action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated with that legal action or proceeding. 5.2. Interpretation. This Agreement has been negotiated at arm’s length and each party has been represented by independent legal counsel in this transaction and this Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each party hereby waives any benefit under any rule of law (including Section 1654 of the California Civil Code) or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party. 5.3. Survival. All indemnities, covenants, representations and warranties contained in this Agreement shall survive after the sale has been completed. 5.4. Successors. Except as provided to the contrary in this Agreement, this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns. 5.5. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. Exhibit A - Page 2 3 5.6. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, any such provision shall not be affected by the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision this is in keeping with the intent of the Parties as expressed herein. 5.7. Notices. Any delivery of this Agreement, notice, modification of this Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval, waiver, declaration or other communication that either party desires or is required to give to the other party or any other person shall be in writing. Any such communication may be served personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested to the party’s address as set forth below: To IACC: Bill Green 803 Lomita Ave. Millbrae, CA 94030 To City: City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Any such communication shall be deemed effective upon personal delivery or on the date of first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable. Any party may change its address by notice to the other party. Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this section and that any person to be given notice actually receives such notice. 5.8. Waivers. Any waiver by any party shall be in writing and shall not be construed as a continuing waiver. No waiver will be implied from any delay or failure to take action on account of any default by any party. Consent by any party to any act or omission by another party shall not be construed to be consent to any other subsequent act or omission or to waive the requirement for consent to be obtained in any future or other instance. 5.9. Signatures/Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any one of such completely executed counterparts shall be sufficient proof of this Agreement. Exhibit A - Page 3 4 5.10. Date and Delivery of Agreement. Notwithstanding anything to the contrary contained in this Agreement, the parties intend that this Agreement shall be deemed effective, and delivered for all purposes under this Agreement, and for the calculation of any statutory time periods based on the date an agreement between parties is effective, executed, or delivered, as of the Effective Date. 5.11. Representation on Authority of Parties. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY: CITY OF SOUTH SAN FRANCISCO, a California municipal corporation By: ____________________________ Mike Futrell City Manager IACC: Italian American Citizens Club, a nonprofit organization By: ____________________________ Name: __________________________ Title: ___________________________ ATTEST: By: ____________________________ Name: __________________________ Title: ___________________________ APPROVED AS TO FORM: By: ____________________________ City Attorney 2889649.1 Exhibit A - Page 4 1 LEASE AGREEMENT This LEASE AGREEMENT (“Lease”) is entered into as of ___________________, 2018, (“Effective Date”) by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“City”), and Italian American Citizens Club, a nonprofit organization (“IACC”), with reference to the Recitals set forth below. RECITALS A. City and IACC are parties to that certain Lease Agreement dated January 29, 1999 (“Original Lease”) pursuant to which the IACC leased a City-owned trailer located at the bocce courts at Orange Memorial Park. Upon execution of this Lease and the separate Purchase and Sale Agreement, the Original Lease shall immediately terminate, notwithstanding any provision to the contrary that may be contained in the Original Lease. B. Pursuant to a separate Purchase and Sale Agreement executed concurrently herewith, the City intends to sell and the IACC intends to buy the trailer located at the Orange Memorial Park bocce courts. C. Pursuant to this Agreement, the City intends to lease to IACC that portion of land at the bocce courts at Orange Memorial Park where the trailer is currently located as shown in more detail on the attached diagram in Exhibit A. LEASE AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and IACC hereby as follows: 1. LEASE OF PREMISES. City hereby leases to the IACC that portion of land located at the bocce courts at Orange Memorial Park where the trailer is currently located as depicted in more detail in the attached diagram in Exhibit A for one dollar ($1.00) per year. 2. TERM. The term of this Lease shall be for a period of five (5) years commencing upon the Effective Date of this Lease. 3. RENEWAL. The term of this Lease may be renewed for an additional five (5) years by mutual agreement of the parties provided that the IACC provides the City written notice of its desire to extend the Lease at least ninety (90) days before the expiration of the initial five-year term. 4. SALE OR DISPOSAL OF TRAILER. This Lease shall immediately terminate in the event that IACC sells or otherwise disposes of the trailer, unless otherwise agreed to by the parties. Upon termination of the Lease pursuant to this section, IACC must immediately vacate the City Exhibit B - Page 1 2 property, remove the trailer at its sole cost and expense, and make any repairs deemed necessary by the City to restore the City property into an acceptable condition. 5. RAMP INSTALLATION. Within ninety (90) days of the Effective Date, IACC shall install a ramp at the entrance of the trailer and in compliance with requirements of the Americans with Disabilities Act of 1990 (“ADA”) to provide access to the trailer. Upon completion of installation, IACC shall maintain the ramp in good working order; failure to install or maintain the tramp constitutes a breach and default by IACC under this Agreement and may justify immediate termination of the Lease, obligations to remove the trailer and vacate City property and restore City property to an acceptable condition. 6. RESTROOM ACCESSIBILITY. Within ninety (90) days of the Effective Date, IACC shall make improvements to the restroom in the trailer in compliance with requirements of the ADA. Upon completion of improvements to the restroom, IACC shall maintain the facilities in good working order and in compliance with all-applicable ADA requirements; failure to improve or maintain the restroom in compliance with all applicable ADA requirements constitutes a breach and default by IACC under this Agreement and may justify immediate termination of the Lease, obligations to remove the trailer and vacate City property and restore City property to an acceptable condition. 7. TERMINATION. Except as provided in Section 3 above, either party may terminate this Lease at any time by providing ninety (90) days written notice to the other party. Upon termination, IACC, at IACC’s sole cost and expense, shall remove the trailer from City property, repair any damage caused by removal of the trailer, and make any other repairs deemed necessary to bring the City property into an acceptable condition. 8. USE OF PROPERTY. IACC shall use the trailer on City property only for IACC club activities. Gambling, unauthorized alcoholic beverage consumption, illegal activities and non-IACC activities are not permitted to take place on City property or at the trailer. Activities involving alcoholic beverage consumption may only take place with an effective permit issued in advance by the City’s Parks and Recreations Department. 9.UTILITIES. IACC shall be responsible for the payment of 50% of utilities. 10.REPAIRS. IACC shall be responsible for making any repairs necessary to ensure that the trailer is safe and does not pose a danger to the public or users of the bocce courts. 11.MAINTENANCE. IACC shall maintain the trailer in a good and safe condition and ensure that the trailer does not create blight on City property, including maintenance of the trailer’s exterior painting and coating. 12.PAYMENT. IACC shall pay the City one dollar ($1) per year for use of the City property as a site for its trailer. 13.CO-SPONSORSHIP STATUS. IACC shall, at all times during the term of this Lease, comply with all conditions of City co-sponsorship such as to ensure activities are non-profit and group membership is open to the public, and shall maintain its status as a City co-sponsored group in accordance with all co-sponsorship requirements. Failure to maintain co-sponsorship status constitutes grounds for City to terminate this Lease. Exhibit B - Page 2 3 14. INDEMNIFICATION. To the fullest extent permitted by law, IACC shall indemnify, defend (with counsel acceptable to the City), and hold harmless the City and its elected and appointed officers, officials, employees, agents, contractors and consultants (“City Indemnitees”) from and against any and all liability, loss, damage, claims, expenses and costs (including, without limitation, attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of or in connection with IACC’s lease of the City property or failure to comply with this Lease, except such Liability caused by the sole negligence or willful misconduct of the City Indemnitees. IACC’s indemnification obligations set forth in this Section 10 shall survive the expiration or termination of this Agreement. 15. AMENDMENTS. This Lease may be amended from time to time upon mutual written agreement of both parties. 16. INSURANCE. Prior to the execution of the Lease and continuing throughout the term of this Lease, IACC shall, at IACC’s sole cost and expense, furnish the City with certificates of insurance evidencing that IACC has obtained and maintain Commercial General Liability and Property Damage Insurance in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products, completed operations and contractual liability coverage. All insurance policies shall be written on an occurrence basis and shall name the City Indemnitees as additional insureds with any City insurance shall be secondary and in excess to IACC’s insurance. If the IACC’s insurance policy includes a self-insured retention that must be paid by a named insured as a precondition of the insurer’s liability, or which has the effect of providing that payments of the self-insured retention by others, including additional insureds or insurers do not serve to satisfy the self-insured retention, such provisions must be modified by special endorsement so as to not apply to the additional insured coverage required by this agreement so as to not prevent any of the parties to this agreement from satisfying or paying the self-insured retention required to be paid as a precondition to the insurer’s liability. Additionally, the certificates of insurance must note whether the policy does or does not include any self-insured retention. The certificates shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation, termination or non-renewal. The City’s Risk Manager may waive or modify any of the insurance requirements of this section. 12. ASSIGNMENT. This Lease shall not be assigned or subleased without written consent of the other party. IACC shall not sublease or rent the premises subject to this Lease and the trailer to a third-party tenant without obtaining prior written consent from the City. 13. TERMINATION OF PRIOR LEASE. Upon execution of this Lease and the separate Purchase and Sale Agreement, the Original Lease shall immediately terminate, notwithstanding any provision to the contrary that may be contained in the Original Lease. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date and year first above written. Exhibit B - Page 3 4 CITY: CITY OF SOUTH SAN FRANCISCO, a California municipal corporation By: ____________________________ Mike Futrell City Manager IACC: Italian American Citizens Club, a nonprofit organization By: ____________________________ Name: __________________________ Title: ___________________________ ATTEST: By: ____________________________ Name: __________________________ Title: ___________________________ APPROVED AS TO FORM: By: ____________________________ City Attorney 2889649.1 Exhibit B - Page 4 Exhibit A - Diagram of Premises Exhibit B - Page 5