HomeMy WebLinkAboutReso 91-391 - Ratifying Execution by the CM of the agreement dated 08-22-91 entered into between teh COR & P&M Cedar Products, Inc to maintain log-decking facility - Redding Power Plant RESOLUTION NO. 91-3q(
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING
RATIFYING EXECUTION BY THE CITY MANAGER OF THE
AGREEMENT DATED AUGUST 22, 1991, ENTERED INTO BETWEEN
THE CITY OF REDDING AND P&M CEDAR PRODUCTS, INC. TO
MAINTAIN A LOG-DECKING FACILITY AND CONDUCT CERTAIN
OTHER ACTIVITIES INCIDENTAL THERETO AT THE SITE OF THE
REDDING POWER PLANT.
IT IS HEREBY RESOLVED that the City Council of the City of
Redding hereby ratifies the signature of the City Manager, on
behalf of the City Council of the City of Redding, on the
Agreement dated August 22, 1991, between the City of Redding and
P&M Cedar Products, Inc, , a true copy of which is attached hereto
and incorporated herein by reference.
I HEREBY CERTIFY that the foregoing Resolution was
introduced and read at a regular meeting of the City Council of
the City of Redding on the 3rd day of September, 1991, and was
duly adopted at said meeting by the following vote:
AYES: COUNCIL MEMBERS: Arness, Buffum, Fulton, Moss & Dahl
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
MIKE DAHL, Mayor
City of Redding
1
ATTEST: O PPROVED:
ETHEL A. NICHOLS, City Clerk ALL A. HAYS, dity Attorney
1 AGREEMENT
2
3 THIS AGREEMENT (Agreement) is made and entered into as of
4 this 22nd day of August, 1991, by and between THE CITY OF REDDING
5 (City) and P&M CEDAR PRODUCTS, INC. (P&M) , a California
6 corporation.
7 This Agreement is made with reference to the following facts
8 and objectives:
9 1. The City is the owner of the Redding Power Plant and
10 surrounding land and facilities (Site) as shown on Exhibit A
11 attached hereto and made a part hereof by this reference; and
12 2 . P&M desires to license the use of a designated portion
13 (land, scale, and trailer loader--collectively hereinafter
14 referred to as "Premises" , such Premises more particularly
15 designated in and on Exhibit A) of the Site from the City
16 pursuant to the provisions of this Agreement, for the purposes of
17 maintaining a log decking facility and conducting certain other
18 activities incidental thereto at and upon the Premises; and
19 3 . P&M has examined the Premises and is fully aware of its
20 condition and accepts it as is as suitable for P&M' s intended
21 use.
22 NOW, THEREFORE, in consideration of the foregoing, and the
23 covenants and agreements set forth below, the parties hereto
24 mutually agree as follows:
25
26 ARTICLE 1
27 GRANT OF LICENSE
28 1. 1 The City hereby grants to P&M a revocable license to
29 use the Premises for the purposes of maintaining a log decking
30 facility and uses incidental thereto, and P&M hereby undertakes
31 to use the Premises for said purposes.
32
1 ARTICLE 2
2 T_ERI+
3 2 . 1 The term of this Agreement shall be for a six (6) month
4 period, commencing on August 22, 1991 and terminating on
5 February 22 , 1992 unless earlier terminated pursuant to the terms
6 hereof by one of the parties hereto.
7
8 ARTICLE 3
9 LICENSE FEE
10 3 . 1 P&M agrees to pay to the City the sum of $1, 500 per
11 month, said sum to be payable in advance on the 15th day of each
12 month preceding the month during which P&M will use the Premises,
13 beginning August 22 , 1991 and continuing monthly during the term
14 of this Agreement.
15 The sum set forth above shall include the fee for the use of
16 the Premises, together with the fee to the City for the use by
17 P&M of electric utilities required for the Premises.
18
19 ARTICLE 4
20 USE OF PREMISES
21 4 . 1 P&M' s rights regarding the use of the Premises are
22 semi-exclusive and are limited to its use as a log decking
23 facility and the performance of activities incidental thereto,
24 and for no other use, unless prior written consent from the City
25 has been obtained therefor, and further, that at all times during
26 the Term hereof P&M shall:
27 (a) Comply with all laws, regulations, and codes
28 having effect upon the Site or the use thereof by P&M, and
29 (b) Conduct its activities on the Premises between the
30 hours of 8: 00 A.M. , and 5: 00 P.M. , Monday through Friday (except
31 holidays) . If P&M desires to conduct activities outside the
32 aforementioned hours, it shall be allowed to do so only after
33 obtaining permission from the City. If such permission is
34 granted by the City, in consideration of the cost to the City to
35 accommodate P&M's activities, P&M shall reimburse the City at a
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1 rate of $20/hour for each hour P&M' s activities are undertaken
2 outside the aforementioned hours, and
3 (c) Conduct its activities at the Site in a manner
4 which shall not injure or damage the Site nor constitute either a
5 nuisance or a waste of the Site, and
6 (d) Conduct its activities at the Site in a manner
7 that in no way hinders the use of the Site by the City and
8 further reasonably accommodates the use of the Site by the City
9 and such third parties as the City may have granted the right to
10 use.
11 (e) Disconnect and stack (at a Site location
12 acceptable to the City) all material and equipment associated
13 with the existing deck sprinkling system at the Site.
14 4 .2 P&M further agrees that its right to use the Site does
15 not include the right to alter, change, or modify the Site except
16 as reasonably necessary for P&M's permitted use of the Site, and
17 then any such alteration, change, or modification shall be made
18 only upon prior written consent of the City and P&M agrees that
19 upon termination of this Agreement it will remove any such
20 alteration, change, or modification and restore any portion of
21 the Site affected by P&M to the same condition as they were prior
22 to the beginning of this Agreement. For all P&M activities at
23 the Site, P&M shall be solely responsible for securing any
24 required permits, and shall be liable for P&M's failure to obtain
25 appropriate permits. To the extent P&M activities violate the
26 terms of any existing permits, P&M shall remedy therefor.
27 4 . 3 Notwithstanding Article 1. 1 hereof, the City expressly
28 reserves to itself the right to use the Site (including the
29 Premises) , together with any alteration, change, or modification
30 thereto that may be made by P&M, during the Term hereof, and to
31 grant the right to use to third parties during such Term, but
32 agrees that such use by itself or any such third parties shall
33 not unreasonably interfere with P&M's permitted semi-exclusive
34 use of the Premises.
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1 4 . 4 P&M shall have the right, pursuant to this Agreement,
2 of ingress and egress to and from the log decking facility over
3 and across certain roads of the City as designated on Exhibit A
4 attached hereto.
5
6 ARTICLE 5
7 MAINTENANCE AND REPAIR
8 5. 1 Prior to the execution of this Agreement, P&M has
9 inspected the Premises and agrees that the same are in good
10 condition and appropriate and adequate for its permitted use and
11 that the City is not responsible in any way therefor, including
12 performing any maintenance or making any repairs.
13 5. 2 During the Term hereof, P&M agrees to maintain and
14 repair the Premises at its sole cost and expense, including,
15 without limitation, maintenance and repair of all structural
16 parts, foundations, and associated electrical and mechanical
17 systems.
18 5. 3 The maintenance and repair called for under 5.2 shall
19 be performed by P&M at regular intervals in a manner reasonably
20 satisfactory to the City. P&M shall make such repairs and
21 perform such maintenance to the Premises as is necessary to
22 maintain the Premises in a safe and operating condition.
23 5. 4 If the City shall use the Premises during the Term
24 hereof, the City agrees to bear a portion of the maintenance cost
25 or a share of repair costs, directly attributable to the City's
26 use, which portion or share shall be tied to the percentage
27 relationship which the City's use of the Premises bears to the
28 total use of the Premises by P&M and the City. The City agrees
29 to include an identical requirement in any grant of the right to
30 use the Premises which may be made to a third party by the City.
31 5. 5 P&M shall surrender the Premises at the expiration or
32 termination of this Agreement in as good condition as the same
33 was at the commencement of this Agreement, reasonable wear and
34 tear excepted. P&M agrees that it will not permit and will
35 promptly remove any lien, charge, or encumbrance of ahy kind
RC/222 4
1 which may be imposed or placed on the Premises as a result of any
2 action or inaction of P&M or its employees, agents, contractors,
3 subcontractors, or suppliers.
4 5.6 If repairs to the Premises are occasioned by damages or
5 injuries to the Premises caused by an accident or the intention
6 of one of the parties, that party shall bear all of the costs of
7 such repairs.
8 5.7 Any improvements, alterations, or modifications to the
9 Premises made by P&M hereunder and any property of P&M remaining
10 on the Premises upon the expiration or termination of this
11 Agreement, if not removed by P&M within fifteen (15) days after
12 such termination or expiration, is deemed abandoned by P&M and
13 may be used by the City as its own or may be removed and disposed
14 of in any manner deemed appropriate by the City, including but
15 not limited to a private sale without notice, and without any
16 obligation to account for or to pay any amount over to P&M.
17
18 ARTICLE 6
19 TERMINATION
20 6. 1 This Agreement may be terminated at any time by either
21 party, by the giving of ninety (90) days advanced written .notice
22 to the other.
23
24 ARTICLE 7
25 HOLD HARMLESS
26 7. 1 P&M agrees at all times during the Term hereof that it
27 will, at its sole cost and expense, defend, indemnify, hold
28 harmless, and provide all legal defense and related services to
29 the City, its officers, agents, employees, and/or subsidiaries,
30 for and against any and all claims, expenses, demands, causes of
31 action, liability, loss or injury, regardless of their nature or
32 character, in any manner whatsoever arising from P&M's exercise
33 of the license to use the Premises granted hereunder, including
34 but not limited to the condition of the Premises.
RC/222 5
1 7.2 P&M shall be free of the requirements of 7 . 1 if after
2 trial, or through other process mutually agreed upon between the
3 parties, it is determined that the proximate cause of such claim,
4 expense, demand, cause of action, liability, loss, or injury was
5 the sole negligence, or was the result of the intentional
6 misconduct, of the City, or its agents, employees, assigns, or
7 some third party unrelated to P&M, but to which the City has
8 granted the right to use the Premises.
9 7. 3 P&M's obligations pursuant to 7 . 1 shall survive the
10 termination or expiration of this Agreement.
11
12 ARTICLE 8
13 INSURANCE
14 8. 1 During the Term hereof, at its sole cost and expense,
15 P&M shall provide the following types of insurance, in the
16 amounts specified, the form provided, and covering the Premises,
17 as follows:
18 (a) Broad form, comprehensive, public liability
19 insurance of limits not less than $1, 000, 000 per person and
20 $1, 000, 000 per occurrence, insuring P&M and the City, its
21 officers, agents, and employees, against any and all liability
22 with respect to the Premises, or arising out of the maintenance,
23 use, or misuse thereof; and property damage insurance with a
24 limit of not less than $1, 000, 000 for each accident.
25 8.2 All policies of insurance to be provided by P&M shall
26 contain a provision naming the City, its officers, agents, and
27 employees as an additional insured, and insured shall
28 nevertheless be entitled to recover under said policies for any
29 loss, injury, or damage to the City, its agents, employees, or
30 assigns, by reason of the negligence of P&M.
31 8.3 At the time of execution of this Agreement, P&M shall
32 deliver to the City's Risk Manager policies evidencing the
33 insurance procured by P&M in compliance with this Article 8, or
34 deliver in lieu thereof, certificates of coverage from the
35 insurance company or companies writing the policy or policies of
RC/222 6
1 insurance, which certificates shall, among other things,
2 designate the company writing the same, the number, the amount,
3 and the provisions thereof. At any time during the Term hereof,
4 upon the City's written request, duplicate copies of such
5 certificates for policies of insurance shall be delivered to the
6 City.
7 8 .4 All insurance policies provided in compliance with this
8 Article 8 shall contain a provision that such policy may not be
9 canceled, changed, or terminated without thirty (30) days prior
10 written notice to the City from the insurer.
11
12 ARTICLE 9
13 ASSIGNMENT AND SUBLICENSE
14 9. 1 P&M shall not assign, sublicense, mortgage, or
15 hypothecate, by operation of law or otherwise, the license for
16 use granted hereunder, in whole or in part, without the prior
17 written consent of the City.
18 9.2 Any purported or attempted assignment, sublicense,
19 mortgage, or hypothecation of the license granted hereunder by
20 P&M shall cause the immediate termination of this Agreement.
21 9. 3 The City may assign this license to any successor in
22 interest of the City by notification in writing to P&M of such
23 assignment.
24
25 ARTICLE 10
26 RESERVATION OF USE
27 10. 1 Notwithstanding Article 1. 1 hereof, the City reserves
28 the right to use the Premises and to grant the use of the
29 Premises to other persons or entities. The rights granted to P&M
30 hereunder are in this respect semi-exclusive, and are subject to
31 the City's reservation; however, such reservation and granting of
32 use by the City shall be in compliance with Article 4 . 3 hereof.
33
RC/222 7
•
1 ARTICLE 11
2 NOTICES
3 11. 1 Any notices or other communication required or
4 permitted hereunder shall be sufficiently given if sent by
5 registered mail, postage prepaid, addressed as follows:
6 To The City: City of Redding
7 760 Parkview Avenue
8 Redding, California 96001-3396
9 Attention: Sam Lindley
10 Electric Utility Director
11
12 To P&M: P&M Cedar Products, Inc.
13 P.O. Box 7349
14 Stockton, CA 95207
15 Attention: Larry Hood, President
16 or to such other addresses as shall be furnished in writing by
17 either party to the other party. Any such notice or
18 communication shall be deemed to have been given as of the date
19 received.
20
21 ARTICLE 12
22 TIME OF ESSENCE
23 12 . 1 Time is of the essence in this Agreement and all its
24 particulars.
25
26 ARTICLE 13
27 RECORDING
28 13 . 1 Neither party hereto shall record this Agreement
29 without the written consent of the other.
30
31 ARTICLE 14
32 ATTORNEY'S FEES
33 14 . 1 Should legal action or other proceeding be brought for
34 the enforcement of this Agreement or any term hereof, due to any
35 alleged dispute, breach, default, or misrepresentation in
RC/222 8
1 connection with any provisions herein contained, the prevailing
2 party shall be entitled to recover reasonable attorney's fees and
3 other costs incurred in any such action or proceedings, in
4 addition to such other relief as may be granted.
5
6 ARTICLE 15
7 ENTIRE AGREEMENT; MODIFICATION; WAIVER
8 15. 1 This Agreement, and its Exhibits, constitutes the
9 entire Agreement between the parties hereto and supersedes all
10 previous oral or written agreements, representations, and
11 understandings between the parties. No supplement, modification,
12 or amendment to this Agreement shall be binding unless executed
13 in writing by all parties. No waiver of any provision of this
14 Agreement shall be deemed a waiver of any other provision,
15 whether or not similar, nor shall any waiver constitute a
16 continuing waiver. No waiver shall be binding unless executed in
17 writing by the party making the waiver.
18
19 ARTICLE 16
20 COUNTERPARTS: CORPORATE AUTHORITY
21 16. 1 This Agreement may be executed in any number of
22 counterparts and each such instrument executed in counterpart
23 shall be deemed to be an original instrument.
24 16. 2 P&M warrants and represents that the execution of this
25 Agreement is duly authorized by its Board of Directors.
26 16. 3 This Agreement is subject to the ratification of the
27 City Council of the City of Redding. Failure of the Council to
28 ratify this Agreement on or before September 3 , 1991, shall void
29 the approval given. P&M shall, should ratification not take
30 place, vacate the Site by September 15, 1991.
31
32 ARTICLE 17
33 TARES
34 17. 1 P&M agrees to pay promptly when due any and all taxes
35 assessed against its personal property and any possessory
RC/222 9
1 interest tax levied by reason of its occupancy and use of the
2 Site.
3
4 IN WITNESS WHEREOF, the parties have executed this Agreement
5 on the day and year first written above.
6
7
8 THE CITY OF REDDING P&M CEDAR PRODUCTS, INC.
9
10 dL
11 f
1
12
13 !tel t - By
14 BERT M. CHRI7/�
ERSON DAV D WATERS
15 City Manager Vice-President, Manufacturing
16
17
18 Date:— Date:
19
20
21
22
23 FO APPROVE
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