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