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HomeMy WebLinkAboutReso - CC - 064-1997RESOLUTION NO.64-9 7 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING REVOCABLE LICENSE AGREEMENT BETWEEN THE CITY AND WEIMAN SYNDICATE REGARDING PROVISION OF PEDESTRIAN ACCESS BETWEEN THE PROPERTY AT 1490 BURLINGAME AVENUE AND THE PROPERTY AT 1477 CHAPIN AVENUE AND AUTHORIZING CITY MANAGER TO EXECUTE AGREEMENT RESOLVED, by the City Council of the City of Burlingame: WHEREAS, the City has purchased the property at 1490 Burlingame Avenue ("Parking Area") in order to improve the property as a public parking area to serve Downtown Burlingame ("Project'); and WHEREAS, Weiman Syndicate owns the adjacent property at 1477 Chapin Avenue ("Store Property") and would like to have a convenient public, pedestrian access between the Parking Area and the Store Property, and this appears to be in the public interest; and WHEREAS, construction of such an access would mean elimination of one public parking space in the Parking Area and additional costs in construction of the access to meet current standards; and WHEREAS, Weiman is willing to pay for the construction costs and loss of a parking space pursuant to this License Agreement; and WHEREAS, such an agreement is in the public interest, NOW, THEREFORE, IT IS RESOLVED AND ORDERED: 1. The City Manager is authorized and directed to execute the Revocable License Agreement attached hereto as Exhibit A by and on behalf of the City. 2. The Clerk is directed to attest to the signature of the City Manager. MAYOR t JMrrH A MALFATTI, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 4th day of AUGUST 1997, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: HARRISON, JANNEY, KNIGHT, O'MAHONY, SPINELLI NOES: COUNMvIEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE REVOCABLE LICENSE AGREEMENT BETWEEN WEIMAN SYNDICATE AND THE CITY OF BURLINGAME REGARDING PROVISION OF PEDESTRIAN ACCESS BETWEEN THE PROPERTY AT 1490 BURLINGAME AVENUE AND THE PROPERTY AT 1477 CHAPIN AVENUE, BURLINGAME, CALIFORNIA The CITY OF BURLINGAME, a municipal corporation (hereinafter called "City") as owner of the real property located at 1490 Burlingame Avenue, Burlingame, California (hereinafter "Parking Areal% and WEIMAN SYNDICATE, a California general partnership (hereinafter called "Weiman") as owner of the real property located at 1477 Chapin Avenue, Burlingame, California [APN's 029-122-010 and 029-122-020] (hereinafter "Store Property"), MUTUALLY PROMISE AND AGREE AS FOLLOWS: RECITALS WHEREAS, the City has purchased the Parking Area in order to improve the property as a public parking area to serve Downtown Burlingame (hereinafter "Project"); and WHEREAS, Weiman would like to have a convenient public, pedestrian access between the Parking Area and the Store Property, and this appears to be in the public interest; and WHEREAS, construction of such an access would mean elimination of one public parking space in the Parking Area and additional costs in construction of the access to meet current standards; and WHEREAS, Weiman is willing to pay for the construction costs and loss of a parking space pursuant to this License Agreement; and WHEREAS, such an agreement is in the public interest; and WHEREAS, Weiman represents and warrants that it is authorized to enter into this License Agreement and has the consent and authority of the holders of interests in the Store Property to enter into this License Agreement, NOW, THEREFORE, IT IS AGREED by the Parties hereto as follows: 1. Design and Construction of Pedestrian Access. City shall construct a pedestrian access (hereinafter "Pedestrian Access") between the Parking Area and the Store Property generally as 7/29/97 Zsl'/'Y/CT/% oAl shown in Exhibit A hereto. Weiman shall submit plans and specifications to the City that conform to City, State, and Federal standards for such an access, subject to City review. Those approved plans shall be used for the construction of the Pedestrian Access. The costs for construction of the Pedestrian Access shall be listed as a specific bid item in the request for bids or addendum or contract change order made by the City for the Project. 2. Payment by Weiman. (A) Before the City begins construction of the Pedestrian Access, Weiman shall pay to the City the sum of $42,000. This sum is an agreed-upon estimate for the costs to the City of land value and design review under this License Agreement. If this amount is not paid to the City within thirty (30) days of the award of the contract for the Project, the City may terminate this License Agreement at its sole discretion. (B) Upon completion of the Pedestrian Access construction under the Project, the City will invoice Weiman for the construction costs for the Pedestrian Access by the contractor as well as the prorated share of the Project inspection and administration costs incurred by the City for the construction of the Pedestrian Access. Weiman shall pay each of this invoice within fifty (50) days of the date of the invoice from the City. 3. Entry to Construct. The City and its authorized contractors, agents, and employees may enter the Store Property to take measurements and elevations, construct the Pedestrian Access, and perform all tasks related to the construction of the Pedestrian Access, including repair and reconstruction of the existing retaining wall between the Parking Area and the Store Property and construction the fencing along the retaining wall. Weiman agrees and understands that such work may require the temporary closure of parking spaces along the property boundary of the Store Property and the Parking Area. City shall require the contractor constructing the Project to include Weiman in its hold harmless and indemnity agreement with the City and name Weiman as an additional insured on liability insurance policies tendered to the City for the Project. 4. Maintenance of Pedestrian Access and Removal of Shopping Carts. Upon acceptance by the City of the Pedestrian Access, Weiman shall maintain the Pedestrian Access in a safe and usable condition and remove any graffiti that may be placed on the Pedestrian Access. On a regular basis, Weiman shall cause the removal from the Parking Area and Pedestrian Access of any shopping carts that appear to come from use of the Store Property. City may give notice to Weiman of any shopping carts or maintenance difficulties, and Weiman shall promptly take steps to correct such difficulties. 5. Maintenance of Landscaping and Light. City shall maintain the landscaping on the Parking Area and provide one parking lot light adjacent to the southern end of the Pedestrian Access. 6. Drainage. Weiman understands and agrees that the drainage of storm and irrigation 7/29/97 2 water from the Pedestrian Access and associated landscaping is designed to flow onto the Store Property, and that the Store Property is solely responsible for accepting and directing this drainage. 7. Termination without Cause by Citv. (A) While the parties hope that this License Agreement will be in effect for twenty (20) years, the City reserves the right to terminate this Agreement without cause on thirty (3 0) days' notice at any time after October 1, 2001. (B) If the City does terminate the Agreement under this paragraph 7, City shall pay to Weiman the following: (1) $42,000 less the prorated amount of $42,000 that the number of whole years rounded downward during which the Agreement was in effect bears to 20. For example, should the City decide to terminate this Agreement after 5 years and 8 months following its execution, the City would pay Weiman $42,000 less 5/20 or 1/4 of $42,000 ($10,500), or $31,500; plus (2) The amount of total actual construction costs paid by Weiman to the City under paragraph 2(B) above less the prorated amount of such costs that the number of years rounded downward during which the Agreement was in effect bears to 20. For example, should the City decide to terminate this Agreement after 9 years and 2 months following its execution and actual construction costs paid by Weiman were $30,000, the City would pay Weiman $30,000 less 9/20 of $30,000 ($13,500), or $16,500; plus (3) The amount of actual design costs that Weiman incurred and paid for the design of the Pedestrian Access less the prorated amount of such costs that the number of years rounded downward during which the Agreement was in effect bears to 20. For example, should the City decide to terminate this Agreement after 15 years and 6 months following its execution and actual design costs paid by Weiman were $10,000, the City would pay Weiman $10,000 less 15/20 or 3/4 of $10,000 ($7,500), or $2,500. However, in order to establish the right to this payment, Weiman shall present a statement of design costs incurred and paid to the satisfaction of the City Engineer no later than October 1, 1998. 8. Termination by Weiman or by City in Event of Weiman Default. If Weiman terminates this Agreement for any reason, or if the City elects to terminate the License Agreement because of an event of default by Weiman as specified in Paragraph 9 below, and the City elects to remove the Pedestrian Access and restore the area for use as a parking space or any other use, Weiman shall pay the City for the costs actually incurred by the City in removing the Pedestrian Access, which shall include the costs of the design and work for the restoration of the retaining wall, backfill, landscaping, and parking lot surfacing, but not the construction of any additional 7/29/97 structures or improvement beyond a parking space. 9. Events of Default. The following shall constitute events of default under this License Agreement: a. A material default by Weiman in the performance of any of the terms, covenants, agreements, or conditions in this License Agreement and the continuation of the default beyond thirty (30) days after notice by the City, or if the default is curable and would require more than thirty (30) days to remedy, beyond the time reasonably necessary for cure. b. The bankruptcy or insolvency of Weiman, a transfer by Weiman in fraud of creditors, an assignment by Weiman for the benefit of the creditors, or the commencement of proceedings of any kind against Weiman under the Federal Bankruptcy Act or under any other insolvency, bankruptcy, or reorganization act, unless Weiman is discharged from voluntary proceedings within ninety (90) days. c. The appointment of a receiver for a substantial part of Weiman's assets. d. The abandonment of the Store Property. e. The levy upon this License Agreement or any estate of Weiman under this License Agreement by attachment or execution and the failure to have the attachment or execution vacated within thirty (30) days. 10. Use by City Following Termination. Upon termination of this License Agreement, the City may put the portion of the Pedestrian Access on the Parking Area to any use that the City wishes and may remove any or all of the improvements in the Parking Area in its sole discretion.. Nothing contained in this License Agreement shall require the City to remove or replace any particular improvements upon termination of this License Agreement. 11. Binding on and Benefit to Successors and Assigns. This Agreement is intended to and does bind and inure to the benefit of the parties' heirs, successors, and assigns pursuant to the terms of the License Agreement. 12. Assignment. Weiman may assign its duties under this Agreement to another person upon written notice to the City, but except with the written approval of the City, which approval shall not be unreasonably withheld, Weiman shall remain liable to the City for performance under the Agreement. Weiman shall furnish any tenant, successor, assign, or purchaser of any interest in any part or all of the Store Property with a copy of this Agreement; provided, however, that Weiman's failure, or that of any other person, to so furnish such a copy shall in no way prejudice the rights of the City to require performance under this Agreement. 13. Notices. Weiman shall notify the Director of Public Works of any sale, transfer, or other act which results in a change of ownership of the property to which this Agreement relates. This notice shall be provided to the City within fourteen (14) working days of any change of ownership. Notices required to be given under this Agreement shall be addressed as follows: 7/29/97 4 To City: City Engineer City of Burlingame 501 Primrose Road Burlingame, CA 94010 To Weiman: Weiman Syndicate 2755 - 34th Avenue San Francisco, CA 94116 The addresses to which the notice shall be or may be mailed as aforesaid to either party shall or may be changed by written notice given by such party to the other as hereinbefore provided, but nothing herein contained shall preclude the giving of any such notice by personal service. 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties. 15. Runs with the land. This Agreement shall run with the land. The City shall cause this Agreement to be recorded with the County Recorder, and a copy will be provided to Weiman. 16. Hold Harmless. Weiman shall defend, hold harmless, and indemnify City, its officers and employees, from any and all claims for injuries, damage, costs or expenses, in law or in equity, to persons and/or property, including attorneys fees, which may arise out of the use of the Pedestrian Access or the presence of any shopping carts on the Parking Area that are related to use of the Store Property, unless the sole cause of the injury or damage is the active negligence or willful misconduct of the City, its officers, employees, volunteers, or agents, and shall further defend, hold harmless, and indemnify the City, its officers and employees, from any and all claims from any person allegedly holding an interest in the Store Property that alleges that this License Agreement or its performance interferes with any right or title that the claimant may hold in the Store Property. 17. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of the Agreement. 18. Modifications. No modification, waiver, termination, or amendment to this Agreement is effective unless made in writing signed by the City and Weiman. 19. Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7/29/97 IN WITNESS WHEREOF the parties hereto have executed this License Agreement on the day of 1997. UZ Attest: CITY OF BURLINGAME WEIMAN SYNDICATE City Clerk Approved as to form: City Attorney Recommended by: City Engineer 7/29/97 6 Lo