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HomeMy WebLinkAbout06/21/2011, C10 - APPROVAL OF LICENSE AGREEMENT AND INDEMNIFICATION WITH MOUNTAINBROOK COMMUNITY CHURCH AT IRISH HILL Melvin`D le council �• z, j acEnaa REpont ,t•�N� cro 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 C10-2 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 C10-3 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 C10-4 ATTACHMENT 1 MAP EXHIBIT A TRAIL IMPROVEMENTS 1707 CALLE JOAQUIN 067-241-021 J x r � tj�,�'. .rA � �` Xrr - - lt:t� : � • i J:� t s aY.'/�i �a�j� a - •_�j�r a ;�. ,' :�� �� ��. \����r�� ` F �.��.•'-+l r '.''. r. .'i. 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" �. t��� a fr -� �y�,d4F'� k4�r}S ' C10-6 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 C10-7 (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