HomeMy WebLinkAbout05/05/2009, C3 - AUTHORIZATION TO ENTER LICENSE AGREEMENT GRANTING RIGHT-OF-WAY FROM TIM AND KAREN TWISSELMAN AT JOH council
j acEnaa nEpont ,t=Numb"
c3
CITY O F SAN LUIS O B I S P O
FROM: Shelly Stanwyck, Assistant City Manager
Prepared By: Neil Havlik, Natural Resources Manager
SUBJECT: AUTHORIZATION TO ENTER LICENSE AGREEMENT GRANTING
RIGHT-OF-WAY FROM TIM AND KAREN TWISSELMAN AT
JOHNSON RANCH OPEN SPACE
RECOMMENDATION
1. Authorize Staff to enter into License Agreement with Tim and Karen Twisselman to
permit construction and use of a non-motorized trail crossing a portion of the
Twisselmans' property adjacent to the Johnson Ranch Open Space.
2. Approve a Release, Waiver, of Liability, Assumption of Risk and Indemnity
Agreement providing legal protections to the Twisselmans for public use of the
Licensed Area.
3. Authorize the Mayor to sign the License and Release Agreements.
DISCUSSION
On February 1, 2005, the City Council approved the Conservation Plan for the Johnson Ranch
Open Space. The Conservation Plan included several trail projects providing proper access to the
site. Following Council adoption of the Conservation Plan, staff worked with members of
Central Coast Concerned Mountain Bikers (CCCMB) and the Chamber's Leadership Class XVII,
who volunteered many hours to construct one of the trails. Surveys found that a certain
alignment that crossed an approximately 250-foot portion of the adjacent property owned by Tim
and Karen Twisselman provided a safer route for pedestrians and bicyclists than the nearby,
existing Miramonte Road easement.
Staff therefore approached the Twisselmans about permission to cross the property with the new
trail. The Twisselmans were supportive, provided that the permission did not involve any formal
granting of interest in the land. The result was a license agreement which allows for the
construction and maintenance of the trail on the Twisselman 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 the agreement. The agreement has been signed by Tim
and Karen Twisselman, and upon Council approval will permit the project to get underway.
The current license agreement is modeled after a similar agreement permitting access across a
portion of the Pearce-Madonna Partnership property on Cerro San Luis, which provided a safer
and more environmentally benign access to the "M" on Cerro San Luis. A companion agreement
provided liability protection to the property owners arising out of public use of the License Area,
which will also be utilized for this property.
C3 - I
Council Agenda Report—Approval of License Agreement Granting Right of Way
Page 2
CONCURRENCES
The Parks and Recreation Department supports the Agreement as achieving a sought-after
objective of the Conservation Plan.
FISCAL IMPACT
The trail is expected to be constructed entirely with volunteer labor. A short fence will be
constructed between the new trail and the remainder of the Twisselman property. This fence will
be installed by a contractor as part of a larger series of improvements to fencing at the Johnson
Ranch. Costs for this will be covered by the Johnson Ranch CIP budget. The project's
environmental impacts are minor and are covered by the mitigated negative declaration of the
Conservation Plan approved by the Council.
In entering the License Agreement, the City of San Luis Obispo agrees to indemnify the
Twisselmans from any claims arising out of the public's use of the license area. As part of the
City's overall risk management strategy liabilities arising from use of trails is considered
extremely minor, and to staff's knowledge there have been no claims against the City either on
property owned by the City or utilized through less-than-fee agreements. Therefore the fiscal
impact of the License Agreement is considered negligible.
ALTERNATIVE
The Council could reject the License Agreement. This is not recommended as the Agreement
meets needs of both parties. Although there is some risk of loss of the license, such action is not
consistent with past actions by the Madonna or Twisselman families on other family properties
such as Bishop Peak and Cerro San Luis and is not anticipated.
ATTACH LENTS
1. License Agreement (including vicinity map)
2. Release Agreement
G/Havlik/councila/twisselman trail license approval C
ATTAr}i4VT 1
LICENSE AGREEMENT GRANTING RIGHT OF ENTRY
This LICENSE AGREEMENT GRANTING RIGHT OF ENTRY is made by and between Tim
and Karen Twisselman (hereinafter called"Owners"), and the City of San Luis Obispo, a
California municipal corporation (hereinafter called "Licensee") with respect to the following
RECITALS
WHEREAS, the City of San Luis Obispo is the owner of certain real property in the County of
San Luis Obispo commonly known as the Johnson Ranch Open Space; and
WHEREAS, said Open Space is used by citizens for hiking and bicycling; and
WHEREAS, Owners own certain property ("the Property") adjacent to said Open Space. and
Owners have historically permitted use of a small portion of the Property for travel purposes; and
WHEREAS, the City of San Luis Obispo is desirous of constructing a recreational, non-
motorized trail to provide access to the Open Space for the education and enjoyment of the
public; and
WHEREAS, surveys for said trail have indicated that the most practical and safe route for said
trail would cross a portion of the Property.
NOW THEREFORE, the following is agreed by and between Owners and Licensee (collectively,
the "Parties").
I.GRANT OF LICENSE. Subject to the further provisions of this License, Owner hereby grants
a nonexclusive, revocable license to Licensee to enter the property (San Luis Obispo County
APN 073-351-018) adjacent to Johnson Ranch Open Space, pursuant to Licensee's request for
access to and use of a portion of said property for the purpose of constructing and maintaining a
hiking and bicycling trail. This License Agreement is only a temporary license to enter the
Property and is not a grant of an easement or any other interest in the Property. This Agreement
does not grant a right to exclusive use of any particular part of the Property. Licensee
understands and agrees that other potential licensees and Owners and their representatives will
also have access to the Property.
2. TERMS OF LICENSE.
A. This License entitles Licensee to construct a trail suitable for non-motorized
recreational access of a length of approximately 250 feet 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 of
Licensee and of Licensee's invitees. This License shall not be effective until the execution by
Licensee of a Release, Waiver of Liability, Assumption of Risk, and Indemnity Agreement
acceptable to Owners.
�3 -3
- ATTACHMENT 1
C. Licensee shall not assign the license granted by this Agreement without the written
consent of Owners.
3. TERMINATION/REVOCATION FOR CAUSE. This License shall continue until
terminated with or without cause by either of the Parties, upon 30 days written notice to the other
party. The License granted by this Agreement may also be revoked for cause at the discretion of
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 the
Property or of any personal property stored in or located at the Property; or (3) violation of any
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 require
Licensee to close said trail or otherwise make substitute arrangements. Prior to any such
termination, however, Owners shall give Licensee a reasonable time period, not to exceed 30
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 its
present as is condition, and accepts the condition of the Property. Owners make no representation
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 generally
accepted improvements to provide for a non-motorized recreational trail without the written
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 provision
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 the
exclusive venue for any dispute arising out of the relationship of the Parties to this License will
be San Luis Obispo County, California.
6. AMENDMENT. This License may not be modified, amended, or changed without the
written consent of the Parties.
Signed on the day of 2009.
LICENSEE:
CITY OF SAN LUIS OBISPO
By:
David Romero, Mayor
OWNERS:
By: By:
Tim Twisselman Karen Twisselman
C 3 -�
License Area
0.75 ac approx.
.• Johnson Ranch
..F
Twisselman Property
JOHNSON RANCH f l
Johnson Ranch
OPEN SPACE
Open Space
Twisselman License Area
1 = 100approx.
License Area f _
Zk
ry t. v{ L
�rtf�f°�1 r" i� Ck !i•,F-Sjr�� i'"'`y Z 4 q t"4. r '•.
Vicinity Map
City of San Luis Obispo 1"=5,000'approx.
Greenbelt Protection Program
� 3-S
ATTACHM-PST 2
RELEASE, WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY
AGREEMENT
This Release, Waiver of Liability, Assumption of Risk and Indemnity Agreement
("Agreement") dated , is made by and between Tim
Twisselman and Karen Twisselman, husband and wife, ("Owners") and the City of San
Luis Obispo, a California municipal corporation ("City"), in accordance with the License
Agreement Granting Right of Entry ("License") made by and between Owners and City
dated
PURSUANT to the License, Owners have granted City a nonexclusive, revocable
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 the
Property for the purpose of constructing and maintaining a hiking and bicycling trail. City
has agreed that it will bear sole responsibility for the security and safety of City and
City's invitees including, but not limited to, all individuals who hereafter use or are
otherwise upon or about the Property ("Invitees").
ACCORDINGLY, as further consideration for the License, City agrees as
follows:
1. City acknowledges that Owners have made no representation or warranty,
whether expressed or implied, as to the suitability of the Property for any use, including
the use contemplated by the License.
2. City is solely responsible for the security and safety of the City (including its
employees, agents and contractors), and all City Invitees who hereafter use the Property.
3. City hereby releases, discharges and covenants not to sue Owners (and their
principals, agents, employees and contractors, and each of them) (herein collectively
"Releasees") for any loss or damage to City, its employees, agents, contractors and
Invitees, and each of them (and any claim or demand thereon), arising out of or related in
any manner to any use of the Property under the License, whether or not due, in whole or
in part, to the negligence or gross negligence of Owners or otherwise.
4. City hereby agrees to indemnify and save and hold harmless Owners, and each of
them, from any loss, liability, damage or cost they may incur due to the presence of the
City, its employees, agents, contractors and Invitees on or about the Property or arising
out of or related in any manner to any use of the Property under the license, whether or
not due, in whole or in part, to the negligence or gross negligence of the Owners (and
each of them) or otherwise.
5. City, on behalf of itself, its employees, agents, contractors, and Invitees, and each
of them, hereby assumes full responsibility for and risk of bodily injury, death or property
damage to City, its employees, agents, contractors and Invitees, and each of them, arising
out of or related in any manner to the use of the Property under the License, whether or
ATTACHMENT 2
not such bodily injury, death or property damage is due, in whole or in part, to the '
negligence or gross negligence of Owners (and each of them) or otherwise.
6. City further expressly agrees that the foregoing release,Waiver of Liability,
Assumption of Risk and Indemnity Agreement is intended to be as broad and inclusive as
is permitted by the law of the State if California and that if any portion thereof is held
invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force
and effect.
7. The undersigned has read, understood and voluntarily signed the Agreement on
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 on
behalf of the City to enter into this agreement.
Date:
David F. Romero
Mayor
APPROVED AS TO FORM:
JQN&HAN P. LOWELL
City Attorney