HomeMy WebLinkAbout06/21/2011, C10 - APPROVAL OF LICENSE AGREEMENT AND INDEMNIFICATION WITH MOUNTAINBROOK COMMUNITY CHURCH AT IRISH HILL Melvin`D le
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C I T Y O F S A N L U I S O B I S P O
FROM: Michael Codron, Assistant City Manager
Prepared By: Neil Havlik,Natural Resources Managerfj?
SUBJECT:. APPROVAL OF LICENSE AGREEMENT AND INDEMNIFICATION
WITH MOUNTAINBROOK COMMUNITY CHURCH AT IRISH HILLS
NATURAL RESERVE
RECOMMENDATION
1. Approve a License Agreement with Mountainbrook Community Church to permit
construction and use,of a non-motorized trail crossing a portion of the church property
adjacent to the Irish Hills Natural Reserve.
2. Approve a Release, Waiver of Liability, Assumption of Risk and Indemnity
Agreement providing legal protections to Mountainbrook Community Church for
public use of the License Area.
3. Authorize the Mayor to sign the License and Release Agreements._
DISCUSSION
On July 28, 2010, the City of San Luis Obispo completed the purchase of the 310-acre Froom
Ranch from Phyllis Madonna. The property adds greatly to the potential for hiking and biking in
Irish Hills Natural Reserve (IHNR) by our citizens, and since that time city staff have been
working on a new update to the 2003 Conservation Plan for the Reserve, into which the Froom
Ranch is being incorporated. One of the items of interest to the community has been to provide
additional access points to the Reserve and to ultimately connect it to the Johnson Ranch Open
Space about one-half mile to the south. Personnel at Mountainbrook Community Church
indicated their interest in allowing use of church property for such an access as a service to the
community, provided that the permission did not involve any formal granting of interest in the
land. Accordingly, city staff worked with the church to develop a license agreement allowing
such use,modeled upon several similar current agreements with other property owners.
The result of these negotiations is a license agreement which allows for the construction and
maintenance of the trail on the Mountainbrook Community Church property that will provide
access to the southern end of the Froom Ranch and IHNR. It will include a trailhead, parking for
8-10 cars at a gravel parking area, signage, a new gate, and possible lighting powered by a
photovoltaic panel. 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 representatives of Mountainbrook Community
Church. The project is expected to begin this fall after approval of the IHNR Conservation Plan
Update, which will be before the Council in.July or August.
C10-1
Council Agenda Report—Approval of License Agreement and Indemnification
Page 2
CONCURRENCES
The Parks and Recreation Department supports the Agreement as achieving a sought-after
objective of the Conservation Plan. The Assistant City Attorney and Risk Manager have also
reviewed the applicable portions of the agreements and support the recommended language.
FISCAL IMPACT
The trail is expected to be constructed entirely with volunteer labor. The trailhead and fencing
will be installed either by contractors or by city personnel. The lighting is something the parties
have agreed to look into, but it is not a requirement of the license. Costs for the trailhead area
are expected to be minor and have been anticipated in the Froom Ranch CIP for 2011-2013. The
project's environmental impacts are likewise minor and will be covered by the mitigated negative
declaration of the 1HNR Conservation Plan Update, when it is approved by the Council.
In entering the License Agreement, the City of San Luis Obispo. agrees to indemnify
Mountainbrook Community Church 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 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.
For the above reasons the fiscal impact of the License Agreement is considered negligible.
ALTERNATIVE
The Council could reject the agreements. This is not recommended as the agreements meet
needs of both parties, and similar agreements have been successfully utilized to allow limited
public use of private lands while providing appropriate legal protections to private landowners.
who permit such use as a community service. Rejection would also be inconsistent with the
stated desire of Mountainbrook Community Church to allow the public to properly use and enjoy
the open space portions of their property and to access the public lands beyond..
ATTACHMENTS
1. License Agreement(including vicinity map)
2. Release Agreement
G/Havlik/councilagenda/mountainbrook trail license approval
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ATTACHMENT 1
LICENSE AGREEMENT GRANTING RIGHT OF ENTRY
This LICENSE AGREEMENT GRANTING RIGHT OF ENTRY is made.by and between Mountainbrook Community Church,a
California non-profit Religious Corporation(hereinafter called"Owners'D,and the City of San Luis Obispo, a California municipal
corporation Pereinafter called"Ucensee'�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 Irish Hills Natural Reserve 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').
1. 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 067-241-021 and APN 053-161-010)adjacent to
the Irish Hills Natural Reserve 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 nota 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.
2. TERMS OF LICENSE.
a. This License entitles Licensee to construct a trail suitable for non-motorized recreational access on a portion of
the Property indicated on the accompanying Map Exhibit A, and to maintain and patrol said trail. This shall
include modifications(e.g.,fencing, relocation of entry gate, parking area, etc.)to the property entrance as
shown on Exhibit B.
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 Release,Waiver of Liability,
Assumption of Risk,and Indemnity Agreement acceptable.to Owners.
c. Licensee shall not assign the license granted by this Agreement without the written consent of Owners.
3. TERMINATION/REVOCATION FOR CAUSE. This Licenseshall 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 or City
of San Luis Obispo, or any other applicable law/regulation when on, in,or around the Property. Upon termination or
revocation of the license granted by this Agreement,Owners may require Licnesee to close and/or remove 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 which are acceptable to Owners.
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
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ATTACHMENT 1
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 the non-motorized recreational trail as described above in 2A without
the written permission of Owners.
S. 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 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_L� day of Q/L 2011.
0APPR ED O FORM:
LICENSEE: / _��`
CITY OF SAN LUIS OBISPO • CHRISTINE IETRICK
City Attorney
By:
Jan Howell Marx, Mayor
OWNERS:
MOUNTAINBROOK CO U CHU a Calif n-profit Religious Corporation
By. By:
Thomas . 0 Robert Allis,Board Member
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ATTACHMENT 1
MAP EXHIBIT A
TRAIL IMPROVEMENTS
1707 CALLE JOAQUIN 067-241-021
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" " ' • " " • Trail Route on City of San Luis Obispo Property
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ATTACHMENT I
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ATTACHMENT 2
RELEASE, WAIVER OF LIABILITY, ASSUMPTION OF RISK AND
INDEMNITY AGREEMENT
This Release, Waiver of Liability, Assumption of Risk and Indemnity
Agreement ("Agreement) dated , 2011, is made by and
between Mountainbrook Community Church, a California non-profit Religious
Corporation, ("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
2011.
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 Irish Hills Natural Reserve 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 non-motorized 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/or 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 their successors, beneficiaries and/or assigns or their
employees, agents, contractors and invitees 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
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(7 ATTACHMENT 2
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/or
Invitees, and each of them, arising out of or related in any manner to the use of
the Property under the License, whether or not such bodily injury, death or
property damage is due, in whole or in part, to the negligence or gross
negligence of Owners, their successors, beneficiaries and/or assigns or their
employees, agents, contractors and invitees (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:
Jan Howell Marx
Mayor
C10-8