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2023/03/28 City Council Resolution 2023-022 RESOLUTION NO. 2023-022 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING THE CITY MANAGER TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND SAVEABUNNY FOR USE OF CITY OWNED CAT ROOM D AT THE ANIMAL SHELTER AT 301 J. ROGERS LANE WHEREAS,the City of Rohnert Park owns and operates the Rohnert Park Animal Shelter at 301 J. Rogers Lane; and WHEREAS, the Animal Shelter has a rentable room at the Animal Shelter referred to as Cat Room D; and WHEREAS,the City has a desire to enter into an agreement to license the use of the Cat Room to SaveABunny. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve a license agreement, substantially in for the form of Exhibit A, with SaveABunny for the City owned Cat Room D, located at the Rohnert Park Animal Shelter, 301 J. Rogers Lane, Rohnert Park, CA 94928. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute the License Agreement for and on behalf of the City of Rohnert Park. The City Manager is further authorized to take any actions and to execute any other documents necessary to effectuate the terms of the License Agreement. DULY AND REGULARLY ADOPTED this 28th day of March, 2023. CITY OF ROHNERT PARK • S atith) a Rodriguez, or ATTEST: Elizabe h Machado, Assistant City Clerk Attachment: Exhibit A ELWARD: t e_GIUDICE: Plaie. SANBORN: HOLLINGSWORTH ADAMS:�RODRIGUEZ: e AYES: (5 ) NOES: ( � ) A SENT: (0 ) ABSTAIN: ( pJ) Exhibit A to Resolution 8147482.1 WI130-001 CITY OF ROHNERT PARK NON-EXCLUSIVE LICENSE AGREEMENT WITH SAVEABUNNY, INC. FOR USE OF THE ROHNERT PARK ANIMAL SHELTER FACILITIES This Non-Exclusive License Agreement (“Agreement”) is made and entered into as of March 28, 2023 (“Effective Date”) by and between the City of Rohnert Park (“City”) and the SaveABunny, Inc., a California domestic nonprofit corporation (“User”). City and User are referred to herein collectively as the “Parties” and individually as a “Party.” RECITALS WHEREAS, the User desires to use certain facilities at the Rohnert Park Animal Shelter located at 301 J Rogers Lane, Rohnert Park, California, 94928 (“Animal Shelter”); and, WHEREAS, the Parties desire to set forth specific responsibilities with regard to the use of the Rohnert Park Animal Shelter facility. NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. PERMITTED USE AND LICENSE City grants to User a revocable, personal, non-exclusive and non-possessory privilege and license (“License”) to enter upon and use that portion of the Animal Shelter identified as the License Area in Exhibit “B” and incorporated herein, for the limited purpose and subject to the terms, conditions and restrictions set forth herein. User may enter upon and use the License Area solely for purposes of providing animal services, subject to such further requirements and restrictions as set forth in Exhibit “A” and incorporated herein. This Agreement gives User a License only and notwithstanding anything to the contrary herein, this License does not constitute a grant by City of any ownership, leasehold, easement or other property interest or estate whatsoever in the License Area, or any portion thereof. Nothing in this Agreement shall be construed as granting or creating any franchise rights pursuant to any federal, state or local laws. Without limiting the foregoing, this License is subject and subordinate to all existing documents and instruments of record affecting the City property. User must secure all additional necessary approvals, permits and consents, and deliver all necessary notices, before commencing work or activities in the License Area, including any approvals, permits, 2 8147482.1 WI130-001 OAK #4892-3731-3796 v3 consents or notices required from or to City or any other agency. User covenants and agrees, for the benefit of City, that User shall fully comply with the terms and conditions of any rules and regulations promulgated by City as they apply to any work or activities to be performed or temporary facilities to be installed by User on the License Area pursuant to this Agreement, and City shall have no responsibility or liability of any kind with respect thereto. City reserves the right to use the License Area in common with User, as long as such use does not materially interfere with User’s Activities within the License Area. User shall obtain any and all permits, licenses and approvals (collectively, “Approvals”) of all regulatory agencies and other third parties that are required to commence the Activities. User shall, at its expense, conduct and cause to be conducted all activities on the License Area allowed hereunder in a safe and reasonable manner and in compliance with all laws, ordinances, requirement, policies and standards of City and all other governmental or other regulatory authorities with jurisdiction and authority over the License Area and the Activities (including, without limitation, the Americans with Disabilities Act) and all covenants, restrictions and provisions of record, whether presently in effect or subsequently adopted and whether or not in the contemplation of the parties. User shall, at its sole expense, procure and maintain in force at all times during its use of the License Area any and all business and other licenses or approvals necessary to conduct the activities allowed hereunder. User understands and agrees that City is entering into this Agreement in its capacity as a property owner with a proprietary interest in the License Area and not as a regulatory agency with police powers. User further understands and agrees that no approval by City for purposes of this Agreement shall be deemed to constitute approval of any other federal, state, or other local regulatory authority with jurisdiction, and nothing herein shall limit User’s obligation to obtain all such regulatory approvals at User’s sole cost, or limit in any way City’s exercise of its police powers. 2. TERM The term of this Agreement shall begin on the Effective Date and shall end on April 30, 2024 (“Expiration Date”), unless sooner terminated pursuant to Section 3 below. At the end of the initial term, this agreement will automatically renew itself from month to month unless terminated pursuant to the terms below. 3. TERMINATION Either Party may terminate this Agreement for any reason by providing thirty (30) days’ written notice to the other Party pursuant to Section 5 below. Subject to the foregoing notice requirement, City may at its sole option freely revoke and terminate this License at any time without cause or liability. Upon the effective date of any revocation or termination, User shall immediately surrender the License Area in the 3 8147482.1 WI130-001 OAK #4892-3731-3796 v3 condition required under this License Agreement. The initial Term referenced above may be extended by the mutual agreement of both parties. In no event shall User have the right to unilaterally extend the Term beyond the Expiration Date. 4. NOTICES All notices under this Agreement shall be in writing. Notice shall be sufficiently given for all purposes as follows: (a) When delivered by first class mail, postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States mail; (b) When mailed by certified mail with return receipt requested, notice shall be effective upon receipt of delivery is confirmed by a return receipt; (c) When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered. The place of delivery of all notices under this Agreement shall be as follows; City: City Manager City of Rohnert Park 130 Avram Ave, Rohnert Park, CA 94928 (707) 588-2226 User: Marcy Berman SaveABunny, Inc. PO Box 2143 Mill Valley, CA 94942 415-388-2790 5. AS IS CONDITION OF LICENSE AREA; DISCLAIMER User accepts the License Area in its “AS IS” condition, without representation or warranty of any kind by City, its officers, agents or employees, and subject to all applicable laws, rules and ordinances governing the use of the License Area. Without limiting the foregoing, this License is made subject to any and all existing and future covenants, conditions, restrictions, easements, encumbrances and other title matters affecting the License Area, whether foreseen or unforeseen, and whether such matters are of record or would be disclosed by an accurate inspection or survey. 6. NO COST TO CITY User shall bear all costs and expenses of any kind or nature in connection with its use of the License Area, and shall keep the License Area free and clear of any liens or claims of lien arising out of or in any way connected with its use of the License Area. 7. INSURANCE 4 8147482.1 WI130-001 OAK #4892-3731-3796 v3 During the Term of this Agreement, User shall obtain and maintain insurance covering claims for injuries to persons or damage to property which may arise out of or in connection with use of License Area by User or User’s contractors or agents, as set forth in Exhibit “C”. The insurance carrier shall maintain an A.M. Best rating of not less than A-: VII. 8. INDEMNIFICATION User shall indemnify, defend, reimburse and hold harmless City, its officers, agents, employees and contractors, and each of them (collectively, the “Indemnified Parties”), from and against any and all demands, claims, legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages and liabilities of any kind (collectively, “Claims”), arising in any manner out of (a) any injury to or death of any person or damage to or destruction of any property occurring in, on or about the Animal Shelter, or any part thereof, whether such injury, death, damage or destruction is caused by the person or property of User, its officers, directors, members, employees, agents, consultants, contractors or subcontractors (collectively, “Agents”), its invitees, guests or business visitors (collectively, “Invitees”), or third persons, relating to any use or activity under this Agreement; (b) any failure by User to faithfully observe or perform any of the terms, covenants or conditions of this Agreement; (c) the use of the License Area or any activities conducted thereon by User, its Agents or Invitees; (d) any release or discharge, or threatened release or discharge, of any Hazardous Material caused or allowed by User, its Agents or Invitees, on, in, under or about the City Property, any improvements or into the environment; or (e) any failure by User to faithfully observe or perform any terms, covenants or conditions of this Agreement; except solely to the extent of Claims resulting directly from the sole negligence or willful misconduct of City or City’s authorized representatives.. The foregoing indemnity shall include, without limitation, reasonable attorneys’, experts’ and consultants' fees and costs, investigation and remediation costs and all other reasonable costs and expenses incurred by the indemnified parties. User’s obligations under this Section shall survive the expiration or other termination of this Agreement. City and City Indemnified Parties shall have no liability to User or any User Party as the result of damage or loss to property or injury to or death of any such person arising directly or indirectly from the Activities conducted pursuant to this Agreement, except for damages to User’s property caused by the sole negligence or willful misconduct of City. The obligations pursuant to this Section 8 shall survive the expiration or earlier termination of this Agreement. 9. INTEGRATION This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, whether written or oral. No representations, oral agreements, or inducements have been made by either of the Parties, except as expressly set forth herein. This Agreement may not be changed, modified, or rescinded except by written amendment signed by both Parties. 5 8147482.1 WI130-001 OAK #4892-3731-3796 v3 10. SEVERABILITY Should any part of this Agreement be determined to be unenforceable, invalid or illegal, such determination shall not affect the validity of the remainder of the Agreement, which shall continue in full force and effect. 11. LICENSE FEES For use of the Animal Shelter, the User shall pay a monthly license fee of $250 per calendar month, due on the first of every month, without any setoff or requirement for invoice or presentment, and without any abatement or pro-rata discounts. After the initial term, City may increase the license fee upon providing 30 days notice. 12. PERMITTED USE User shall use the Animal Shelter to provide intake, basic veterinary care or animal rescue services. User will utilize the Animal Shelter only between the hours of 8 a.m. to 6:30 p.m. for the Term of this Agreement, at times when the Animal Shelter is open for business and staffed by regular City employees. User will have non-exclusive access to the License Area during the Term of this Agreement and shall provide custodial services for the License Area for the duration of this Agreement. At the completion of this Agreement or upon termination, User shall be responsible for conducting a comprehensive and thorough cleaning of the License Area. 13. NO JOINT VENTURE This Agreement does not create a partnership or joint venture between City and User as to any activity conducted by User on, in or relating to the License Area. Except as expressly set forth herein, the granting of the License by City does not constitute authorization or approval by City of any activity conducted by User on, in, around or relating to the License Area. User acknowledges that pursuant to this Agreement, the City’s responsibility is limited to the provisioning of the License Area to the User, and that the Activities as performed by the User and its contractors within or about the License Area shall be deemed the sole responsibility of the User. 14. REPAIR OF DAMAGE If any portion of the License Area or any personal property of City located on or about the License Area is damaged or threatened by any of the activities conducted by User or anyone acting by or through User hereunder, User shall immediately, at its sole cost, notify City by electronic mail of such damage or threat. City may, but shall not be obligated, to remedy such damage or threat at User’s sole cost, or City may elect to witness User’s repair work. In the event City elects not to remedy such damage or threat, User shall repair any and all such damage and restore the License Area or property to its previous condition subject to City’s inspection, review and approval. 6 8147482.1 WI130-001 OAK #4892-3731-3796 v3 15. MODIFICATION OF EXISTING FACILITIES User shall not make any modifications to the License Area, the premises, or personal property of the City, except as may be approved in writing by the Animal Shelter Supervisor of the City, and such improvements shall be at User’s sole expense, which requests for modifications may be approved or rejected at City’s sole discretion and shall be subject to requirements to repair damage set forth in Section 14 of the Agreement. This provision shall apply, without limitation, to any requests by User to modify existing cages, doors, or cabinets, or other facilities of the City. IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their duly authorized officers, as of the date first set forth above. For User: For City of Rohnert Park: Title of Signatory City Manager Approved As to Form: City Attorney 7 8147482.1 WI130-001 OAK #4892-3731-3796 v3 EXHIBIT A SCOPE OF PERMITTED USE Uses Permitted to the User: Use of the Animal Shelter shall be provided to User for purposes of providing animal rescue services. Use is subject to the following conditions of use: RESPONSIBILITY OF USERS AND CONDITIONS OF USE • Permission for use of the Animal Shelter is granted upon the condition that all rules and policies governing the use of the Animal Shelter, as may be promulgated by City in its discretion, are followed by User and all necessary fees are paid. Permission for use may be revoked at any time if User or its agents fail to do so. • User’s personnel and volunteers shall sign any required waivers, present identification to staff upon request, and abide by any sign-in and sign-out requirements imposed by the City. • The City reserves the right to cancel, reassign or otherwise adjust facility access to comply with the demands of its own programs, community programs, or emergency requirements. • Under California Revenue and Taxation Code Section 107.6, ongoing and repeat users of public facilities may create a possessory interest in the facility subject to property taxation. User agrees that they shall be solely responsible for the payment of any such property tax if applicable. • User must provide safe and humane care and handling practices in accordance with current best practices. • User shall be responsible for all veterinary care for animals if using the License Area for animal housing. The City veterinarians and staff will not provide care or supplies for renter’s animals except as arranged through other agreements. • User shall be responsible for arranging for and ensuring for the care of all of its animals during any facility repairs or maintenance, including without limitation HVAC repair or other facility improvements, and shall arrange for alternative locations for care of animals if necessitated by maintenance or repairs. City shall not be liable for any interruptions in User’s programming or for any business interruption, or for any consequential or special damages incurred by User, including any costs of relocation, in the event of damage, destruction, or disrepair of the Animal Shelter or the License Area, and shall have no affirmative obligation to undertake any repair any of the facilities of the Animal Shelter or License Area for the benefit of User. 8 8147482.1 WI130-001 OAK #4892-3731-3796 v3 HOURS OF USE • The hours of use stated in this agreement are the only hours the group is permitted to be in the rental space. • Any changes to the hours of the contract must be pre-approved by Cit y’s Animal Shelter Supervisor in writing. • City facilities and staff will not accept any deliveries on behalf of User. • If renting the facility for animal housing, User must provide or arrange for care for the animals seven days a week, including weekends and holidays. City staff will not provide feeding, cleaning, or other services for User’s animals. EQUIPMENT AND SUPPLIES • User must provide all supplies and equipment being using for animal care, except for the animal cages and water from the sink. Water and electrical utilities shall be provided but subject to any limits on use as may be imposed by City from time to time. • No additional equipment or supplies will be made available to User, including such items as extension cords, office supplies, cleaning supplies, veterinary supplies and equipment, pet toys, pet food, etc. • User must keep all equipment and other belongings within the License Area, except for exercise pens which can be temporarily set up in the hallway in a manner that does not block passage. • User shall ensure animal cages maintain appropriate clearance from the ceiling, as may be required by the California Fire Code or as otherwise directed by City staff. CLEANING • User must dispose of all trash resulting from their use. User must place trash in the dumpster behind the building, and recyclable materials in the recycling bin. Compostable materials, including rabbit hay, shall be discarded in appropriately designated receptacles for compost. No trash may be left outside not in a dumpster. • User must clean up any spills immediately. Users will be billed for any additional charges arising from the need for additional cleaning of the facility by either City staff or contracted janitorial services. • Cage and floor cleaning must be completed by the time the Animal Shelter opens to the public. • Exercise pens must be removed from the hallway by the time the shelter opens to the public. 9 8147482.1 WI130-001 OAK #4892-3731-3796 v3 EXHIBIT B LICENSE AREA The License Area includes the following portions of the Rohnert Park Animal Shelter Cat Room D (limit 30 rabbits plus kits under eight weeks old); hallway outside Cat Room D for exercise pen(s); sink in stray cat room as designated by City; cupboard space as allowed by Animal Shelter Supervisor Additionally, the License Area includes non-exclusive rights to use of the parking area at the Animal Shelter on a first-come, first-served basis. Photo of Cat Room D 10 8147482.1 WI130-001 OAK #4892-3731-3796 v3 EXHIBIT C INSURANCE REQUIREMENTS User shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the User’s use of the License Area and the activities of the User, its contractor(s), guests, agents, representatives, employees, or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering , Code 1 (any auto), or if Instructor has no owned autos, Code 8 (hired) and 9 (nonowned), with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Note – required only if Instructor has employees). If the User maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the User. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of the rental of the facility, work or operations performed by or on behalf of the User including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the User’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). Primary Coverage For any claims related to this contract, the User’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the User’s insurance and shall not 11 8147482.1 WI130-001 OAK #4892-3731-3796 v3 contribute with it. Notice of Cancellation Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. Waiver of Subrogation User hereby grants to City a waiver of any right to subrogation which any insurer of said User may acquire against the City by virtue of the payment of any loss under such insurance. User agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City. Verification of Coverage User shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. Special Risks or Circumstances City reserves the right to modify these requirements based on the nature of the risk, prior events, insurance coverage, or other special circumstances.