STORAGE LICENSE
AGREEMENT
(Salada Ave & Francisco Blvd)
Portion of Parking lot
(APN 016-060-100)
THIS STORAGE LICENSE AGREEMENT (Agreement") is made and entered into as of March 1, 2023 ("Effective Date") by and between THE CITY OF PACIFICA, a municipal corporation ("City") and THE PACIFICA HISTORICAL SOCIETY, a California non-profit public benefit corporation ("Licensee").
RECITALS
City owns that certain property located at Salada Avenue and Francisco Boulevard, Pacifica, California (APN 016-060-100) city-owned parking lot ("City Property").
B. Licensee owns a historic railcar, commonly known as Ocean Shore Railcar #1409 ("Railcar") and plans to perform renovation and repair work in order to preserve the Railcar as a historic landmark for civic and public use ("Licensee's Work").
C. During performance of Licensee's Work, Licensee desires to store the Railcar, along with related tools, equipment, and personal property, on the City Property and to perform Licensee's Work on the City Property.
City is willing to enter into this agreement with the Pacifica Historical Society to authorize the storage, renovation, and repair of Railcar #1409 on City Property, Salada Avenue & Francisco Blvd Parking Lot, for the initial term of six (6) months and further authorizes the Planning Director to administratively grant up to two (2) six-month extensions, on the terms and conditions set forth herein.
The Planning Commission of the City of Pacifica adopted Resolution No. 2023- 002 on January 17, 2023, to approve Temporary Use Permit TUP-1-22 and Coastal Development Permit CDP-445-22 (File No. 2022-029) which authorize the renovation and repair work on the City Property for an initial term of six months and further authorizes the Planning Director to administratively grant up to two (2), six-month extensions.
City is willing to provide to Licensee a non-exclusive license to temporarily store the Railcar and personal property on a designated location on the City Property, identified on the Site Plan attached hereto as Exhibit A and incorporated herein ("Storage Site"), all on the terms set forth herein. City is also willing to allow Licensee to perform Licensee's Work on the Storage Site, subject to the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements herein set forth, and in reliance on the above Recitals, City and Licensee hereby agree OAK #4847-3462-9238 v3
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as follows:
1. Recitals. The Recitals are true and correct and incorporated herein to the terms of the Agreement.
2. License.
a. Licensed Use. Subject to the terms and conditions of this Agreement, City grants to Licensee a non-exclusive license for ingress and egress to, and to use the Storage Site solely for the storage of the Railcar and Licensee's personal property and to conduct Licensee's Work, such uses being hereafter referred to as the "Licensed Use," and for no other use. Licensee shall have limited access to the Storage Site by scheduling work periods with City staff at the City Property. Licensee may
access the Storage Site only during the hours of 7:00AM to 7:00PM Monday through Friday, and 9:00AM to 5:00PM Saturday and Sunday ("Approved Hours"). Licensee may access the Storage Site outside of the Approved Hours only upon written permission of City. Licensee acknowledges that neither City nor any agent of City has made any representation or warranty with respect to the suitability of the Storage Site for the Licensed Use. Licensee shall use the Storage Site in its "as is" condition; City shall have no obligation to improve the Storage Site for the Licensed Use. b. Entry to Storage Site Limited to Licensee. Entry to the Storage Site is limited to Licensee, its employees, volunteers, contractors, or subcontractors, and only for the Licensed Use. All other guests and invitees of Licensee require City's written permission before entry to the Storage Site. Licensee may not conduct tours of the Railcar during the term of this Agreement without prior permission from City. Licensee may not conduct fundraising activities or otherwise solicit donations, monetary or otherwise, on the Storage Site.
Preservation of Storage Site. Licensee shall take all reasonable measures to prevent materials, waste, or debris from its Licensed Use, including any hazardous materials. At all times during the Term of this Agreement, Licensee shall maintain the Storage Site in a neat and clean condition, to the satisfaction of City. In the event the Storage Site is not maintained to the City's satisfaction, upon notice from City, Licensee shall undertake maintenance activities to the satisfaction of City.
d. No Use of City Facilities. Licensee shall not have access to the facilities located on the City Property for its Licensed Use other than on the Storage Site. Nor shall Licensee, its employees, volunteers, contractors, or subcontractors have use of any City tools, equipment, or other materials located in or on the City Property for the Licensed Use. e. Prohibited Use. Licensee shall not do or permit anything to be done in or about the Storage Site nor bring or keep anything therein which will in any way increase the existing rate of or affect or cause a cancellation of any fire or other insurance covering the City Property or the Storage Site or any of its contents. Licensee shall not store upon the Storage Site, or permit, or suffer the storage upon the Storage Site of, any perishable goods, flammable materials, explosives or other dangerous materials or any hazardous materials (as defined from time to time by the appropriate governmental agencies). Licensee agrees that it will use the Storage Site in such manner as not to interfere with the daily operation of the City Property. Licensee shall neither use OAK #4847-3462-9238 v3
nor allow the Storage Site or the City Property to be used for any unlawful or objectionable OAK #4847-3462-9238 v3
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purpose, nor cause, maintain or permit any nuisance or waste in, on or about any portion of the City Property.
Compliance with Law. Tenant shall not use or allow anything to be done in or about the Storage Site or the City Property which will in any way conflict with any law, ordinance or governmental regulation or requirement of any board of fire underwriters or any duly constituted public authority now in force or hereafter enacted or promulgated affecting the use of the Storage Site and shall promptly comply with all such laws or requirements at its sole cost and expense.
3. Term. Subject to the terms and conditions of this Agreement, the license granted in Section 1 above shall commence on the Effective Date of this Agreement ("Commencement Date") and shall continue until and expire on August 31, 2023 ("Termination Date") unless administratively extended by the Planning Director as provided herein. The storage, renovation, and repair work on the City Property is granted for an initial term of six months and further authorizes the Planning Director to administratively grant up to two (2), six-month extensions.
4. Consideration. In consideration of the Licensed Use, the Licensee shall pay to City $1.00 (One Dollar) for the Term of the Agreement, due on the Effective Date.
5. Use of Storage Site. Licensee's use of the Storage Site pursuant to this Agreement shall be at its sole risk and expense, and except as otherwise expressly provided herein, City shall not be required to provide any services (including, without limitation, lighting, utilities, maintenance, or security services) in connection with such Licensed Use. Licensee may use its generator to provide electricity for Licensee's Work.
6. Restoration of Storage Site. At the conclusion of this Agreement and on or before the Termination Date, Licensee shall, at its sole cost and expense and with no contribution by City, restore the Storage Site to the same condition found on the Effective Date, to the satisfaction of City.
Licensee shall, at its sole cost and expense and with no contribution by City, remove the Railcar and any and all equipment brought or stored on the Storage Site, including but not limited to building materials, tools, and personal property. Any items left by Licensee after the Termination Date may be removed and disposed of by City with no further notice to Licensee. In the event Licensee does not restore the Storage Site to the satisfaction of City, City may choose to perform any necessary repair or restoration of the Storage Site and seek reimbursement from Licensee for the reasonable cost of the repair or restoration.
7. Indemnification by Licensee: Waiver
a. Indemnity. Licensee shall indemnify, defend (with counsel selected by City) and hold City harmless from any loss, claim, damage or expense (including attorneys' fees and costs) including claims for bodily injury (including death) or property damage, resulting directly or indirectly from Licensee, or Licensee's employees', volunteers', contractors', subcontractors' or invitees' (the "Indemnifying Party"), use of: the City Property, the Storage Site or personal property, located therein; or from release of or exposure to toxic or hazardous materials brought onto or created on the City Property by the Indemnifying Party as a result of the Licensed OAK #4847-3462-9238 v3
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Use, including any liability for injury to the person (including death) or property of Licensee, its contractors, subcontractors, representatives, agents, officers, employees, invitees or trespassers, except to the extent such loss, claim, damage or expense results from City's sole negligence or willful misconduct. Furthermore, Licensee shall indemnify and defend (with counsel selected by City) and hold City harmless from any loss, claim, damage or expense (including attorneys' fees and costs) resulting from any claims or actions brought by any governmental or regulatory agency for violations of any laws, statutes, regulations, or standards arising from, resulting from, or in any way connected with the use, presence, or release of any hazardous materials brought onto or created on the City Property by the Indemnifying Party as a result of the Licensed Use. Licensee's obligations hereunder shall survive the expiration or termination of this Agreement if the incident requiring such defense and indemnity occurred during the Term of this Agreement. b. Waiver. Licensee, as a material part of the consideration rendered to City in entering into this Agreement, hereby waives all claims against City for damages or loss to the Railcar, any equipment brought or stored onto the Storage Site by Licensee or its contractors or subcontractors, goods, wares and merchandise, in upon and about the City Property or the Storage Site, and for death of or injury to Licensee, its agents, employees, contractors, subcontractors, representatives, or invitees in or about the City Property or the Storage Site from any cause except for City's sole negligence or willful misconduct.
Alterations. Licensee shall make no alterations, additions or improvements to the Storage Site or any part thereof, except as shall be required of Licensee under the provisions of Sections 5 and 8 of this Agreement.
9. Repairs and Maintenance; Services. During the Term, Licensee shall, at its sole cost and expense, maintain the Storage Site in an appropriate condition for the Licensed Use and provide such services as may be reasonably necessary in connection therewith. City shall have no obligation whatsoever to maintain or repair the City Property, including the Storage Site, in connection with the Licensed Use.
10. Assignment and Sublicensing. Licensee shall not assign or otherwise transfer its rights hereunder without the prior written consent of City. The terms and conditions of this Agreement shall be binding on and shall inure to the benefit of the parties and their respective heirs, executors, administrators, guardians, custodians, successors, and assigns.
11. Notices. All notices, demands, requests, advices or designations that may be or are required to be given by either party to the other hereunder shall be in writing. All notices hereunder shall be sufficiently given, made or delivered if served personally or by national overnight courier service or if sent by United States certified or registered mail, postage prepaid, addressed as follows:
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To City:
City of Pacifica
540 Crespi Drive, Pacifica, California 94044 Attention: City Manager With Copy To:
City of Pacifica
540 Crespi Drive
Pacifica, California 94044 Attention: City
Attorney To Licensee:
Pacifica Historical Society
Attention: Kathleen Manning, Chairperson, Ocean Shore Railroad Car Committee P.O. Box 752
Pacifica, California 94044
Each notice referred to in this Section 10 shall be deemed to have been given on the third business day following the date of such mailing (or any earlier date evidenced by a receipt evidencing delivery from such national courier service or United States Postal Service) or immediately if personally delivered to the person to whose attention notices are to be directed.
Either party may change its address for notices by giving notice to the other as above provided.
12. Insurance. For the duration of the Term, Licensee shall maintain comprehensive (or commercial) general liability insurance with respect to the Storage Site and the Licensed Use with limits of not less than One Million Dollars ($1,000,000) combined single limit for personal injury, bodily injury or death or property damage or destruction (including loss of use thereof for any one occurrence. The amounts of such general liability insurance may be increased from time to time as City may reasonably determine. Licensee's insurance shall name City as an additional insured and shall contain language stating that it is primary and non-contributing with any insurance, self- insurance or joint self-insurance maintained by City. Licensee shall provide City with evidence of such insurance.
13. Defaults. The failure of Licensee to observe or perform any of the covenants or provisions of this Agreement to be observed or performed by Licensee, where such failure shall continue for a period of five (5) days after notice thereof by City to Licensee, shall constitute an "Event of Default."
Remedies. Upon the occurrence of any Event of Default. City may, at any time thereafter, without further notice to Licensee and without limiting City in the exercise of any right or remedy which City may have at law or in equity, terminate this Agreement.
15. Miscellaneous.
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Amendments. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in OAK #4847-3462-9238 v3
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Attorneys' Fees. In the event any action, proceeding, mediation or arbitration is brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses including the fees of its attorneys in such action or proceeding in such amount as the court, the mediators or the arbitrators, as the case may be, may adjudge reasonable.
C. Interpretation. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; (e) "includes" and "including" are not limiting; and (f) "days" means calendar days unless specifically provided otherwise. d. Mortgage Subordination. Licensee agrees that this Agreement shall be subordinate to any mortgage or deed of trust now existing or that may hereafter be placed upon the City Property and to any and all advances made or to be made under said obligations and to any renewals, replacements, modifications, consolidations, and extensions thereof, and Licensee agrees to execute any documents reasonably required to effectuate such subordination within five (5) days after written demand therefor, so long as such subordination documentation provides for the non-disturbance of Licensee with respect to the Licensed Use while no Event of Default exists and is continuing. In the event of the sale of the City Property, Licensee hereby agrees that it will attorn to the purchaser and recognize the purchaser as the City under this Agreement.
Choice of Law: Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or proceeding instituted arising out of or related to this Agreement shall be filed in a court of competent jurisdiction in San Mateo County, California.
Prior Agreements. This Agreement contains all of the agreements of the parties hereto with respect to the Licensed Use, and no prior or contemporaneous agreements or understandings pertaining to any such matters shall be effective for any purpose, except for contemporaneous written agreements, specifically referring to this Agreement, signed by both parties.
g. Counterparts. This Agreement may be executed in any number of counterparts, provided each of the parties hereto executes at least one counterpart; each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts, together, shall constitute but one Agreement.
h. Recordation. This Agreement shall not be recorded.
Relationship. It is understood by both City and Licensee that this Agreement shall not under any circumstances be construed or interpreted as creating an employer/employee relationship or a joint venture. Licensee shall at all times conduct itself as an independent contractor and not as an employee or agent of the City. j. No Interest in Real Property. The parties agree that this Agreement does not and shall not be deemed to (i) constitute a lease or a conveyance of personal or real property OAK #4847-3462-9238 v3
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by City, (ii) confer upon Licensee any right, title, estate or interest in the Storage Site or (ill) create any relationship between City and Licensee other than as licensee and licensor. This Agreement grants to Licensee only a personal privilege to have access to the Storage Site for the purposes, under the terms and upon the conditions granted and provided for hereunder. Licensee's rights pursuant to this Agreement are personal only to Licensee as the licensee named herein and Licensee's agents, contractors or employees and is not assignable or transferable by Licensee by operation of law or otherwise.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
LICENSEE:
PACIFICA HISTORICAL SOCIETY,
a California non-profit public benefit corporation
Marrig
Name: Kathleen Manning
Its: Chairperson, Ocean Shore Railroad Car Committee
-AND-
LICENSOR I CITY:
HE CITY OF PACIFICA
municipal corporatio
By:
Kevin Woodhouse, City Manager
Attest:
Sarah Coffey, City Clerk
Approved as to form:
Michelle Marchetta Kenyon, City Attorney
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