HomeMy WebLinkAbout2010-11-10 e-packet
A
GENDA
CITY COUNCIL
CITY OF SOUTH SAN FRANCISCO
REGULAR MEETING
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, NOVEMBER 10, 2010
7:00 P.M.
PEOPLE OF SOUTH SAN FRANCISCO
You are invited to offer your suggestions. In order that you may know our method of conducting Council
business, we proceed as follows:
The regular meetings of the City Council are held on the second and fourth Wednesday of each month at
7:00 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco,
California.
Public Comment:For those wishing to address the City Council on any Agenda or non-Agendized item,
please complete a Speaker Card located at the entrance to the Council Chamber’s and submit it to the City
Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public
comment. California law prevents the City Council from taking action on any item noton the Agenda
(except in emergency circumstances). Your question or problem may be referred to staff for investigation
and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive
action or a report. When your name is called, please come to the podium, state your name and address
(optional) for the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER.
Thank you for your cooperation.
The City Clerk will read successively the items of business appearing on the Agenda. As she completes
reading an item, it will be ready for Council action.
MARK N. ADDIEGO
Mayor
KEVIN MULLINPEDRO GONZALEZ
Vice MayorCouncilman
RICHARD A. GARBARINOKARYL MATSUMOTO
CouncilmanCouncilwoman
RICHARD BATTAGLIAKRISTA MARTINELLI-LARSON
City TreasurerCity Clerk
BARRY M. NAGELSTEVEN T. MATTAS
City ManagerCity Attorney
PLEASE SILENCE CELL PHONES AND PAGERS
HEARING ASSISTANCE EQUIPMENT AVAILABLE FOR USE BY THE HEARINGIMPAIRED AT CITY COUNCIL MEETINGS
In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to anopen
session agenda item, and is distributed less than 72 hours prior to a regular meeting will be made available for public inspection in the
City Clerk’s Office located at City Hall. If, however, the document or writing is not distributed until the regular meeting to which it
relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda. The
address of City Hall is 400 Grand Avenue, South San Francisco, California 94080.
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE
PRESENTATIONS
Fire Prevention Month Poster Contest Winners –presented by Fire Chief White and Fire
Marshal Da Silva.
AGENDA REVIEW
PUBLIC COMMENTS
ITEMS FROM COUNCIL
Announcements.
Committee Reports.
Consideration of letter to Congresswomen Eshoo & Speier –High Speed Rail: Impact on
Communities
CONSENT CALENDAR
1.Motion to approve the minutes of October 20, 2010 and October 27, 2010.
2.Motion to approve expense claims of November 10, 2010.
3.Motion to cancel the Regular Meeting of December 22, 2010 due to proximity to holiday.
4.Resolution authorizingthe City Manager to execute a revocable license agreement with
CFS 2907 San Francisco LLC on a City owned property located adjacent to San Mateo
Avenue, South SanFrancisco.
5.Resolution authorizing the acceptance of $2,500 in donations for computer and telephone
equipment in the DUI and Tactical Command Center Trailer and amending the Police
Department’s 2010/2011 operating budget.
6.Petition to Annex into Parking District 1
423 Baden Avenue (Assessor’s Parcel No. 012-322-210)
Applicant: Maria Isabel Seyd (Hawaiian Cultural Center)
Case No: P10-0026, PPCA10-0001.
REGULAR CITY COUNCIL MEETINGNOVEMBER 10, 2010
AGENDAPAGE 2
ADMINISTRATIVEBUSINESS
7.Resolution authorizing an increase in the penalty for parking violations within the City of
South San Francisco to cover an additional State fee increase from the Budget Act of
2010 (SB857).
ADJOURNMENT
REGULAR CITY COUNCIL MEETINGNOVEMBER 10, 2010
AGENDAPAGE 3
REVOCABLE LICENSE AGREEMENT FOR
USE OF A PARCEL OF LAND OWNED BY
THE CITY OF SOUTH SAN FRANCISCO
AgreementLicense
This Revocable License Agreement (this “” or “”) is issued this 29th
Effective Date
day of September, 2010 (“”) by and between the City of South San Francisco, a
CityCFS 2907 San Francisco LLC
municipal corporation (the “”),and, a Delaware limited
Licensee
liability company(the “”). City and Licensee are hereinafter collectively referred to as
Parties
the “.”
RECITALS
A. City is the owner of the real property consisting of a certain strip of land 55 feet in
width located in the City of South San Francisco, County of San Mateo, State of California, as
more particularly described on Exhibit A attached hereto and incorporated herein by reference
Property
(the “”).
Original Licensee
B. Licensor and Parking Company of America ("") heretofore
entered into a Revocable License for Use of a Parcel of Land Owned by the City of South San
Francisco dated as of December 1, 1983, pursuant to which Licensor granted to Original
Licensee a revocable license to the Property, for the temporary use of the Property, as amended
by that certain Amendment to Resolution 146-83 issued September 28, 2005 (as amended, the
Original License
“”).
C. The Original License was heretofore assigned from PCAA to Licensee pursuant
to that certain (i) Assignment and Bill of Sale, and (ii) Assumption Agreement, each dated as of
June 2, 2010, delivered in connection with that certain Sale Order entered by the United States
Bankruptcy Court for the District of Delaware (In re PCAA Parent, LLC,etal, Case No. 10-
10250 (MFW)) pursuant to Sections 363(b), (f) and (m) of the United States Bankruptcy Code
(11 U.S.C. §§ 101 - 1532).
D. The Original License has expired, and the Parties desire to enter into a new
license agreement setting forth their agreement regarding use of the Property.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Grant of License; License Fee; No Leasehold or Property Rights Created. City
hereby grants to Licensee a revocable license to use the Property for the limited purpose of
operating, managing, and maintaining a commercial parking facility as its business enterprise
Permitted Activity
(“”). On or before the first day of each calendar month during the term of this
“License Fee”
Agreement, Licensee shall pay to City a fee (the ) in the amount of Three
Thousand Nine Hundred Dollars ($3,923.00) per month. For any partial month at the beginning
or end of the term of this Agreement, the License Fee shall be prorated on the basis of a 30-day
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month. This Agreement is not intended to nor shall it be interpreted to create or vest in Licensee
any leasehold or any other property rights or interests in the Property or any part thereof.
1.1 Interest. Any amount due from Licensee to City hereunder which is not paid
when due shall bear interest at the lesser of ten percent (10%) per annum or the maximum rate
which City is permitted by law to charge, from the date such payment is due until paid, but the
payment of such interest shall not excuse or cure any default by Licensee under this Agreement.
1.2 Late Charge. Licensee acknowledges that the late payment of the License Fee
will cause City to incur administrative costs and other damages, the exact amount of which
would be impracticable or extremely difficult to ascertain. Licensee and City agree that if City
does not receive any such payment within five (5) calendar days after such payment is due,
Licensee shall pay to City an amount equal to ten percent (10%) of the overdue amount as a late
charge for each month or partial month that such amount remains unpaid. The Parties
acknowledge that this late charge represents a fair and reasonable estimate of the costs that City
will incur by reason of the late payment by Licensee, but the payment of such late charge shall
not excuse or cure any default by Licensee under this Agreement. The Parties further agree that
the payment of late charges pursuant to this Section 1.2 and the payment of interest pursuant to
Section 1.1 are distinct and separate from one another in that the payment of interest is to
compensate City for the use of City’s money by Licensee, while the payment of a late charge is
to compensate City for the additional administrative expense incurred by City in handling and
processing delinquent payments, but excluding attorneys’ fees and costs incurred with respect to
such delinquent payments. Acceptance of any late fees and late charges shall not prevent City
from exercising any of the other rights and remedies available to City under this Agreement for
any other default by Licensee.
2.Term of License. The term of the License and right of entry granted hereby shall
Expiration Date
commence on the Effective Date and shall continue through July 31, 2014 (“”),
unless City or Licensee terminate this Agreement pursuant to Section 3 below.
3.Termination of License. Both of Licensor and Licensee shall have the right to
terminate the License at any time prior to the Expiration Date as herein provided. Such
termination right shall be exercised, if at all, by delivery of written notice by the exercising party
to the other party setting forth the termination date, which termination date shall be the last day
of a calendar month and no earlier than thirty (30) days after the date of delivery of such notice
in accordance with Section 10 below. Upon termination of this License, Licensee shall restore
the Property pursuant to Section 5 below.
4. Conditions of Access. Licensee’s right to enter upon and use the Property is
limited to the Permitted Activity. Without limiting the foregoing, Licensee agrees to comply with
the following specific requirements:
a. Licensee shall be liable for any damage to the Property that occurs as a
result of this License and the use of the Property by Licensee or its agents, employees, invitees,
customers, consultants, contractors or subcontractors. Any such damage (reasonable wear and
tear excepted) to the Property shall be immediately repaired to the satisfaction of City at
Licensee’s sole cost and expense.
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b. Licensee shall not encroach on the public right of way adjacent to the
Property.
c. Licensee shall comply with all applicable state, federal and local laws,
regulations, rules and orders, applicable to this License, the Property or the Permitted Activity,
including without limitation all Environmental Laws (defined in Exhibit B attached hereto and
incorporated herein by reference. Licensee shall not cause or permit any Hazardous Material
(defined in Exhibit B) to be generated, brought onto, used, stored, or disposed of in or about the
Property; except for Hazardous Materials in such quantities generally used in connection with
the Permitted Activity, and in any case in compliance with applicable Environmental Laws.
(i) Notice of Release or Investigation. If during the term of this
Agreement, Licensee becomes aware of (a) any actual or threatened release of any Hazardous
Material on, under, or about the Property, or (b) any inquiry, investigation, proceeding, or claim
by any government agency or other person regarding the presence of Hazardous Material on,
under, or about the Property, Licensee shall give City written notice of the release or
investigation within five (5) days after learning of it and shall simultaneously furnish to City
copies of any claims, notices of violation, reports, or other writings received by Licensee that
concern the release or investigation.
(ii) Remediation Obligations. If the presence of any Hazardous
Material brought onto the Property during the term of this License by Licensee or Licensee’s
agents, employees, invitees, customers, consultants, contractors or subcontractorsresults in
contamination of the Property, Licensee shall, subject to Licensor's approval rights set forth
below in this subsection (ii), promptly take all necessary actions to remove or remediate such
Hazardous Materials, whether or not they are present at concentrations exceeding state or federal
maximum concentration or action levels, or any governmental agency has issued a cleanup order,
at Licensee’s sole expense, to return the Property to the condition that existed before the
introduction of such Hazardous Material. Licensee shall first obtain City’s approval of the
proposed removal or remedial action.
d. Licensee shall not impair or interfere with City’s ability to access the
Property. Licensee’s use of the Property shall comply with any and all rules and regulations,
including but not limited to, ingress, egress, safety, sanitation and security that may be prescribed
by the City.
e. Licensee expressly acknowledges and agrees that the City does not have
any obligation to provide security services or fencing, and Licensee’s use of the Property is at
Licensee’s own risk.
f. Licensee expressly acknowledges and agrees that the City does not have
any obligation to maintain or repair the Property, and Licensee accepts use of the Property in its
AS-IS condition.
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g. Licensee shall, at Licensee’s sole cost and expense, maintain the Property
in its condition existing as of the Effective Date, reasonable wear and tear excepted, and shall
keep the Property in condition free of debris, litter and graffiti. Licensee shall at all times
exercise due diligence in the protection of the Property against damage or destruction by fire and
other causes.
h. Licensee shall be responsible for payment of all utilities serving the
Property. Licensee shall take reasonable steps to ensure that access to the Property is limited to
Licensee and Licensee’s agents, employees, invitees, and customers.
i. City has the right at all times during the term of this Agreement to enter
upon and to inspect the Property to ensure compliance with this Agreement.
5. Restoration of Property. On or before the Expiration Date, or earlier termination
by either Party, Licensee shall restore the Property to as good order and condition as existed on
the Effective Date, reasonable wear and tear excepted. If this License is terminated, Licensee
shall vacate the Property, remove his property therefrom, and restore the Property to the
condition aforesaid within the time that City may designate. In either event, if Licensee shall fail
or neglect to remove his property and to restore the Property, then, at the option of the City, the
property of Licensee shall either become the property of the City without compensation, or City
may cause to be removed and the Property to be restored at the expense of Licensee and no claim
for damages against City shall be created by or made on account of the removal and restoration
work.
6. Indemnification. Licensee agrees to indemnify, defend (with counsel approved by
City) and hold the City and its elected and appointed officers, officials, employees, agents and
Indemnitees
representatives (all of the foregoing collectively “”) harmless from and against all
liability, loss, cost, claim, demand, action, suit, legal or administrative proceeding, penalty,
deficiency, fine, damage and expense (including, without limitation, reasonable attorney’s fees
Claims
and costs of litigation) (all of the foregoing collectively “”) resulting from or arising in
connection with use of the Property by Licensee or Licensee’s agents, employees, invitees,
customers, consultants, contractors or subcontractors pursuant to this License, including without
limitation, Claims arising as a result of or in connection with any release of any Hazardous
Material in or about the Property by Licensee, or Licensee’s agents, contractors, customers or
invitees, or any other violation of any Environmental Law by Licensee or Licensee’s agents,
employees, invitees, customers, consultants, contractors or subcontractors, except and to the
extent caused by the gross negligence or willful misconduct of any of the Indemnitees.
Licensee’s indemnification obligations set forth in this Section 6 shall survive the expiration or
earlier termination of this Agreement.
7. Release of Claims. Licensee hereby waives, releases, and discharges forever the
Indemnitees from all present and future Claims arising out of or in any way connected with entry
upon or use of the Property by Licensee or Licensee’s agents, employees, invitees, customers,
consultants, contractors or subcontractors pursuant to this License, including without limitation
all Claims arising in connection with any injury to persons or damage to or theft of vehicles or
any other personal property, except and to the extent caused by the gross negligence or willful
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misconduct of any of the Indemnitees. The provisions of this Section 7 shall survive the
expiration or earlier termination of this Agreement.
8. Insurance. Licensee shall take out and maintain during the life of this License the
following policies of insurance:
a. Worker's Compensation and Employers' Liability Insurance in the
statutorily prescribed coverage amounts: In signing this Agreement, the Licensee makes the
following certification:
"I am aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Workers Compensation or to undertake self-insurance
against in accordance with the provisions of the code, and I will comply with such provisions
before commencing the performance of the work authorized by this Agreement."
b. Public Liability Insurance: In an amount not less than FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) for injuries, including, but not limited to, death, to
anyone person and subject to the same limit for each person, in an amount not less than ONE
MILLION DOLLARS ($1,000,000.00) on account of any one occurrence.
c. Property Damage Insurance: In an amount not less than ONE MILLION
DOLLARS ($1,000,000.00) for damage to the property of each person in account of any one
occurrence.
d. Contractual Liability Insurance: In the amount of at least ONE MILLION
DOLLARS ($1,000,000.00) insuring the City, its elective and appointive boards, commissions,
officers, agents and employees, and Licensee against damage sustained by reason of any action
or actions at law or in equity, and/or any claims or demands by reason of any breach or alleged
breach of any contract, or provisions thereof, or by reason of any contractual liability, or alleged
contractual liability on any contract, entered into by Licensee and/or any of its agents or
employees.
e. It is agreed that the insurance required by Subsections b, c, and d shall be
in an aggregate amount of not less than ONE MILLION FIVE HUNDRED THOUSAND
DOLLARS ($1,500,000) and shall be extended to include as insured's: the City of South San
Francisco, its elective and appointed officers, boards, Commissions, agents, employees and
volunteers, with respect to operations performed by Licensee as described herein. The coverage
shall contain no special limitations on the scope of protection afforded to the City. Evidence of
the insurance described above shall be provided to the City upon execution of this Agreement
and shall be subjected to approval by the City Attorney as to form, amount and carrier. The
policy of insurance shall also contain a provision indicating that such insurance shall not be
reduced or cancelled except upon thirty (30) days written notice to the City. In addition, the
following endorsement shall be made on the policy of insurance:
"Notwithstanding any other provisions in this policy, the insurance afforded hereunder to the
City of South San Francisco shall be primary as to any other insurance or reinsurance covering or
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available to the City of South San Francisco, and such other insurance or reinsurance shall not be
required to contribute to any liability afforded hereunder is exhausted."
9. Taxes. Licensee shall pay to the proper authorities, when due, all taxes,
assessments, and similar charges which, at any time during the term of the permit, may be taxed,
assessed, or imposed on City or on Licensee with respect to or on the Property.
10. Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant hereto shall be made in writing, and sent to the Parties at the addresses specified below,
or such other address as a Party may designate by written notice delivered to the other Party in
accordance with this section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered upon
receipt;
b. certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered two (2) business days after deposit, postage prepaid in the United
States mail;
c. nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) day after deposit with such courier; or
d. facsimile transmission, in which case notice shall be deemed delivered on
transmittal, provided that a transmission report is generated reflecting the accurate transmission
thereof.
City:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Ray Razavi
Fax: (650) 829-6689
Licensee:
CFS 2907 San Francisco LLC
c/o PRG Parking Management, L.L.C.
200 W. Monroe Street, Suite 1500
Chicago, Illinois 60606
Attention: Marty Nesbitt
Fax: (312) 453-1608
With a copy to:
CFS 2907 San Francisco LLC
c/o Aurora Resurgence
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10877 Wilshire Blvd., 21st Floor
Los Angeles, California 90024
Attn.: Joshua Phillips
Fax: (310) 277-5591
11.Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter hereof, and supersedes all prior
written or oral agreements, understandings, representations or statement with respect thereto.
This Agreement may be amended only by a written instrument executed by the Parties hereto.
12.Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
13.Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Agreement nor shall the delay or forbearance by either
party in exercising any remedy or right be considered a waiver of, or an estoppel against, the
later exercise of such remedy or right.
14.Captions; Interpretation. The section headings used herein are solely for
convenience and shall not be used to interpret this Agreement. The provisions of this Agreement
shall be construed as a whole according to their common meaning, and not strictly for or against
any party, in order to achieve the objectives and purposes of the Parties.
15.Attorneys’ Fees. In any action at law or in equity, arbitration or other proceeding
arising in connection with this Agreement, the prevailing party shall recover reasonable
attorney’s fees and other costs, including but not limited to court costs and expert and
consultants’ fees incurred in connection with such action, in addition to any other relief awarded.
16.Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
17.Governing Law. This Agreement, and the rights and obligations of the Parties,
shall be governed by and interpreted in accordance with the laws of the State of California
without regard to principles of conflicts of law.
18. No Assignment; No Third Party Beneficiaries. The rights granted hereby are
personal to the Licensee and may not be transferred or assigned by operation of law or otherwise
without the written consent of City. Licensee shall neither transfer nor assign this License or any
property on the City's right-of-way, nor shall Licensee grant any interest or privilege whatsoever
in connection with this License. Nothing in this Agreement is intended to or shall confer upon
any person other than the Parties any rights or remedies hereunder.
19.Time is of the Essence. Time is of the essence for each condition, term,
obligation and provision set forth in this Agreement.
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20.Possessory Interest. Licensee acknowledges that this License may create a
possessory interest subject to property taxation, and that Licensee may be subject to the payment
of property taxes on such interest.
.
21.Authority Each person signing this Agreement represents that he or she has the
authority to do so on behalf of the Party for whom he or she is signing.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
LICENSEE:
CFS 2907 SAN FRANCISCO LLC,
a Delaware limited liability company
By:_____________________________
Print Name:______________________
Title:____________________________
LICENSOR:
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:
____________________________
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
________________________
City Attorney
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Exhibit A
PROPERTY
(Attach legal description)
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Exhibit B
DEFINITION OF HAZARDOUS MATERIAL, ENVIRONMENTAL LAWS
Hazardous Material
As used in this License, the term “” means any chemical, compound,
material, mixture, or substance that is now or may in the future be defined or listed in, or
otherwise classified pursuant to any Environmental Laws (defined below) as a “hazardous
substance”, “hazardous material”, “hazardous waste”, “extremely hazardous waste”, infectious
waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define, list or
classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity. The term “hazardous material” shall also include asbestos or
asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls,
petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits,
natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate,
and methy tert butyl ether, whether or not defined as a hazardous waste or hazardous substance
in the Environmental Laws.
Environmental Laws
As used in this License, the term "" means any and all federal, state and
local statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
governmental authorizations or directives, or any other requirements of governmental authorities,
as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to
the presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Materials, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.),
the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C.
§ 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
§ 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
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