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HomeMy WebLinkAbout06-05-2012 c4 lic agreement grant right away filipponi & denobow property betirish hills nat reserve & johnson ranch open spacecounci lj aGEnaa uepo gt CITY O F S A N L U I S O B I S P O FROM : Michael Codron, Assistant City Manage r Prepared By :Neil Havlik, Natural Resources Manage r SUBJECT : LICENSE AGREEMENT GRANTING RIGHT-OF-WAY FROM HER B FILIPPONI AND JOANN DENBOW ON PROPERTY BETWEEN IRIS H HILLS NATURAL RESERVE AND JOHNSON RANCH OPEN SPAC E RECOMMENDATION 1.Approve a License Agreement with Herb Filipponi and JoAnn Denbow to permi t construction and use of a non-motorized multi-use trail crossing a portion of th e Filipponi/Denbow property adjacent to Irish Hills Natural Reserve and Johnso n Ranch Open Space . 2.Approve a Release, Waiver of Liability, Assumption of Risk and Indemnit y Agreement providing legal protections to Mr . Filipponi and Ms . Denbow for publi c use of the Licensed Area . 3. Authorize the Mayor to sign the License and Release Agreements . DISCUSSIO N Since completion of the acquisition of the Froom Ranch in July 2010, many interested citizen s have urged the establishment of a trail connection of the Irish Hills Natural Reserve with th e Johnson Ranch, one mile to the south . Herb Filipponi and his sister JoAnn Denbow are th e owners of the intervening property and have been receptive to inquiries along such lines . As a result of a series of meetings and consultations, Mr . Filipponi and Ms . Denbow have agreed t o the issuance of a trail license, similar to several other such instruments that the City holds from the Madonna and Twisselman families and from the Mountainbrook Church . The license will allow for the construction and maintenance of a multiuse connectortrail on the Filippon i property . There is a cancellation clause, which is standard for such agreements,as the cancellation clause shows clearly that there is no interest in the land being granted by th e agreement . The agreement has been signed by Mr. Filipponi and Ms . Denbow and, upon Council approval, will permit project planning for future trail construction to begin . One important difference between the current license agreement and the earlier ones is that th e this license permits entry over a significantly longer distance and other uses, besides trail use, may be occurring ; these include livestock grazing, possible vehicle traffic on the ranch road, an d hunting in season. Because of these differences, there is language in both the license and th e indemnification agreement that provides protections to both parties . For example, there is a notification clause in the license that requires the owners to give advance notice of their intentio n to permit hunting on the property, so that City staff can have time to provide proper notificatio n on the trail . Ranger staff has a plan in place to accomplish this, which includes notices a t Meeting Date 6/5/1 2 Item NumberC4 Council Agenda Report — Approval of License Agreement Granting Right of Wa y Page 2 trailheads and a closable gate on the property line at both the Irish Hills and Johnson Ranch ends of the license area . Also, because the owners may be permitting other users in the license area , there is no immunity from acts arising out of negligence . These precautions protect both parties , and it is expected that the actual dangers from differing uses will be negligible ; trails in Lo s Padres National Forest, for example, are open to hunters and non-hunters alike during th e hunting season, and these same trails often cross areas utilized for livestock grazing . Thus, suc h encounters are not unknown to persons hiking or bicycling in local public lands . CONCURRENCE S The Parks and Recreation Department supports the Agreement as it connects both the Irish Hill s and Johnson Ranch Conservation Planning Areas . FISCAL IMPAC T The trail is expected to be constructed entirely with volunteer labor under the supervision of th e Ranger Services Program (presently anticipated to take approximately 500 ranger hours). Mos t of the trail will follow existing ranch roads (partially on the Johnson Ranch) or be through open grassland, with only the northern end involving any significant brush clearing . One small creek will need to be crossed via an onsite constructed bridge . Material costs for the project will b e minor and can be covered by the Irish Hills CIP budget . The project's environmental impacts ar e minor and are covered by the mitigated negative declaration of the Irish Hills Natural Reserv e Conservation Plan approved by the Council in July 2011 . Upon completion, the Filippon i Denbow trail will result in added annual costs to the Ranger Program for added patrol an d ongoing maintenance of the trail . Those costs (as well as other recent acquisition costs) are no t presently in the Ranger Services budget but will be identified in the 2013-15 Financial Pla n process as part of an anticipated significant operating program change . In entering the License Agreement, the City of San Luis Obispo agrees to indemnify the owner s from any claims arising out of the public's use of the license area . For their part, the owner s likewise indemnify the City of San Luis Obispo from damages arising out of their own or thei r invitee's negligence . As part of the City's overall risk management strategy liabilities arisin g from use of trails is considered minor, and to staff's knowledge there have been no claims agains t the City either on property owned by the City or utilized through less-than-fee agreements . ALTERNATIV E The Council could reject the Agreements . This is not recommended as the Agreements meet needs of both parties . Although there is some risk of loss of the license, such action is no t expected to occur capriciously and is not anticipated . ATTACHMENT S 1. License Agreement 2. Release Agreemen t 3. Vicinity Map C4-2 LICENSE AGREEMENT GRANTING RIGHT OF ENTR Y This LICENSE AGREEMENT GRANTING RIGHT OF ENTRY is made by and betwee n Herbert Filipponi and Jo Ann Denbow, (hereinafter called "Owners"), and the City of San Lui s Obispo, a California municipal corporation (hereinafter called "Licensee") with respect to th e following RECITAL S WHEREAS, the City of San Luis Obispo is the owner of certain Open Space lands in the Count y of San Luis Obispo commonly known as the Johnson Ranch Open Space and the Irish Hill s Natural Reserve ; and WHEREAS, said Open Space lands are used by citizens for hiking and bicycling ; and WHEREAS, Owners own certain real property ("the Property") between said Open Space lands ; and WHEREAS, the City of San Luis Obispo is desirous of constructing a recreational, non - motorized trail to provide a connection between the Open Space lands for the education an d enjoyment of the public ; an d WHEREAS, surveys for said trail have indicated that the most practical and safe route for sai d trail would cross a portion of the Property . NOW, THEREFORE, the following is agreed by and between Owners and License e (collectively, the "Parties"). GRANT OF LICENSE . Subject to the further provisions of this License, Owner hereb y grants a nonexclusive, revocable license to Licensee to enter the property (San Luis Obispo County APN 073-351-018) between Johnson Ranch Open Space and Irish Hills Natural Reserve , pursuant to Licensee's request for access to and use of a portion of said property for the purpos e of constructing and maintaining a hiking and bicycling trail . This trail shall be in the genera l alignment indicated on map Exhibit A to this License . This License Agreement is only a temporary license to enter the Property and is not a grant of an easement or any other interest i n the Property . This Agreement does not grant a right to exclusive use of any particular part of th e Property . Licensee understands and agrees that other potential licensees and Owners and thei r representatives will also have access to the Property . TERMS OF LICENSE . A.This License entitles Licensee to construct a trail suitable for non-motorize d recreational access on a portion of the Property indicated on the accompanying Map Exhibit 1 , and to maintain and patrol said trail . B.Licensee agrees that it bears sole responsibility for the security and safety o f Licensee and of Licensee's invitees . This License shall not be effective until the execution b y Licensee of a Release, Waiver of Liability, Assumption of Risk, and Indemnity Agreemen t acceptable to Owners . C4-3 C . Licensee shall not assign the license granted by this Agreement without the writte n consent of Owners . 3.TERMINATION/REVOCATION FOR CAUSE . This License shall continue unti l terminated with or without cause by either of the Parties, upon 30 days written notice to the othe r party. The License granted by this Agreement may also be revoked for cause at the discretion o f Owners for any of the following reasons : (1) violation of any term of this License Agreement ; (2) any act or omission on the part of Licensee which results in damage to or destruction of th e Property or of any personal property stored in or located at the Property ; or (3) violation of an y law, rule, or ordinance of the County of San Luis Obispo when on,in,or around the Property . Upon termination or revocation of the license granted by this Agreement, Owners may requir e Licensee to close said trail or otherwise make substitute arrangements . Prior to any suc h termination, however, Owners shall give Licensee a reasonable time period, not to exceed 3 0 days, in which to correct violations, acts, or omissions, or make substitute arrangements . 4.CONDITION OF PREMISES . Licensee has examined and accepted the Property in it s present as is condition, and accepts the condition of the Property . Owners make no representatio n or warranty about the condition of the Property, nor about its fitness for any purpose : Licensee shall not make any alterations, additions, or improvements to the Property beyond the generall y accepted improvements to provide for a non-motorized recreational trail without the writte n permission of Owners . 5.GOVERNING LAW . This License will be governed by the laws of California . If any term or provision of this License is found to be unenforceable or void, the term or provisio n concerned will be construed as enforceable to the maximum extent allowed by law, and the remainder of this Agreement will remain in full force and effect . Licensee agrees that th e exclusive venue for any dispute arising out of the relationship of the Parties to this License wil l be San Luis Obispo County, California . 6.NO THIRD PARTY BENEFICIARIES . Nothing in this Agreement, express or implied , is intended to or shall confer upon any other person not party to this Agreement any right, benefi t or remedy of any nature whatsoever under or by reason of this Agreemen t 7.AMENDMENT . This License may not be modified, amended, or changed without th e written consent of the Parties . Signed on this day of , 2012 . LICENSEE : CITY OF SAN LUIS OBISP O By: Jan Howell Marx, Mayo r OWNERS : By: By: Herbert Filipponi Jo Ann Denbow C4-4 RELEASE, WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNIT Y AGREEMENT This Release, Waiver of Liability, Assumption of Risk and Indemnity Agreemen t ("Agreement") dated June 5, 2012, is made by and between Herbert Filipponi and Jo An n Denbow, ("Owners") and the City of San Luis Obispo, a California municipa l corporation ("City"), in accordance with the License Agreement Granting Right of Entr y ("License") made by and between Owners and City dated June 5, 2012 . PURSUANT to the License, Owners have granted City a nonexclusive, revocabl e and temporary license to enter certain property ("the Property") adjacent to the City's Johnson Ranch Open Space pursuant to City's request for access to and use of th e Property for the purpose of constructing and maintaining a hiking and bicycling trail . City has agreed that it will bear responsibility, as set forth herein, for the security and safety o f City and City's invitees ("Invitees"). ACCORDINGLY, as further consideration for the License, City agrees a s follows : 1. City hereby releases, discharges and covenants not to sue Owners (and thei r principals, agents, employees and contractors, and each of them) (herein collectivel y "Releasees") for any loss or damage to City, its employees, agents, contractors an d Invitees, and each of them (and any claim or demand thereon), arising out of or related t o to use of the Property under the License, except for any loss or damages caused by th e sole negligence of Owners, their agents, or invitees . 2. City hereby agrees to indemnify and save and hold harmless Owners, and each o f them, from any loss, liability, damage or cost they may incur due to the presence of th e City, its employees, agents, contractors and Invitees on or about the Property or arisin g out of or related to the use of the Property under the License, except for any loss o r damages caused by the sole negligence of Owners, their agents,or invitees . 3. City, on behalf of itself, its employees, agents, contractors, and Invitees, and eac h of them, hereby assumes full responsibility for and risk of bodily injury, death or propert y damage to City, its employees, agents, and contractors, and each of them, arising out o f or related to use of the Property under the License, except for any bodily injury, death o r property damage caused by the sole negligence of Owners, their agents, or invitees . City further agrees that it shall not seek any remedy against Owners arising from or related to bodily injury, death, or property damage to any invitee of the City and will indemnify , defend and hold owners harmless against any claims or damages by such invitee relate d to the use of the Property under the License, except to the extent caused by the sol e negligence of Owners, their agents, or invitees . 4. In the event that Owners wish to permit hunting on the Property in accordanc e with applicable State laws, Owners agree to notify the City of the timing and duration o f such use at least seven (7) days prior to such use of the Property . City will then use its best efforts to close the trail to public use during said period, and to provide reasonabl e prior notification to the public of such closure . 5.Nothing in this Agreement, express or implied, is intended to or shall confer upo n any other person not a party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement . 6.The undersigned has read, understood and voluntarily signed the Agreement o n behalf of City . City agrees that no oral representations, statements or inducement apart from the License and Agreement have been made . The undersigned has full authority o n behalf of the City to enter into this agreement . Date : Jan Howell Mar x Mayor CITY OF SAN LUIS OBISP O GREENBELT PROTECTION PROGRA M FILIPPONI TRAIL LICENSE AGREEMEN T Alp 4ue op approximate trail alignmen t scale 1" =1,000' approx. C4-7 Page intentionally lef t blank .