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HomeMy WebLinkAboutLos Altos School District fr *Si LICENSE AGREEMENT This non-exclusive, personal, revocable License Agreement (the"License Agreement")is entered into as of this 23rd day of April , 2018, by and between the Los Altos School District, a California public school district("Licensor"), and the Town of Los Altos Hills, a California municipal corporation ("Licensee"). Licensor and Licensee are collectively referred to herein as the"Parties", and each, individually, as a"Party". RECITALS A. WHEREAS, Licensor represents that it is the owner of that certain real property commonly known as Gardner Bullis Elementary School, located at 25890 Fremont Road, Los Altos Hills,California(the"Property"); B. WHEREAS, Licensee currently maintains a public path along the south side of Fremont Road; however, there exists a gap in the path along the frontage of the Property between Fremont Pines Lane and Campo Vista Lane; C. WHEREAS, Licensor recognizes the importance of having safe pedestrian and bicycle access to the Property available to its students and the public; D. WHEREAS, pursuant to section 35160 of the Education Code, Licensor's governing board ("Board")may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established; E. WHEREAS, Licensee seeks from Licensor, and Licensor desires to grant to Licensee, a personal, non-exclusive, revocable license on a portion of the Property described further below ("Licensed Area") so that Licensee may complete and maintain the public path on the south side of Fremont Road along the front of the Property as more particularly described herein and thereby allow for safer pedestrian and bicycle access to the Property and along Fremont Road by the public; F. WHEREAS, with this License Agreement, the Parties desire to memorialize their agreement and understanding related to, and the terms and conditions of,the personal,non-exclusive, revocable license granted herein; and G. WHEREAS, the Parties believe that execution of this Agreement is in the best interest of the Parties. NOW THEREFORE, in consideration of the covenants and agreements set forth herein, the Parties agree as follows: AGREEMENT Section 1. THE LICENSE. Subject to the terms and conditions of this License Agreement, Licensor grants to Licensee a personal, non-exclusive, revocable license in the Licensed Area described as follows: an area ten feet in width (measured from the edge of the -1- r existing curb that separates Fremont Road and the northern property line of Licensor's Property) along the entire length of the northern property line of the Property fronting Fremont Road, between Fremont Pines Lane and the eastern edge of property line where Licensor's property adjoins the property located at 13977 Campo Vista Lane, with the exception of the portion of the Property used for vehicular access and egress where a crosswalk will be installed and with the exception of the corner of Fremont Road and Fremont Pine Road where the Licensed Area will meander around the existing fire hydrant so as to connect to the existing school path at that location, for the purpose of constructing, maintaining, and repairing, at no cost to Licensor, a Town of Los Altos Hills standard public pedestrian and bicycle pathway ("Pathway") upon the Licensed Area (the"License"). The Licensed Area is more specifically depicted in Exhibit"A", attached hereto and incorporated herein. Section 2. NATURE OF THE LICENSE: USE. This License granted by Licensee to Licensor shall allow Licensor's construction, maintenance and repair of the Pathway and permits public access and use of the Pathway for normal recreational bicycle and pedestrian use, and for no other purpose, on a non-exclusive basis on the terms and conditions contained herein. Licensee accepts the License in its "as is", "where is" condition, subject to all existing easements, agreements, licenses, and encumbrances, and recognizes that Licensor has no duty of maintenance or care of the License or Pathway. This Agreement alone shall not cause Licensor to make or construct any alterations on the License Area. Section 3. DURATION OF LICENSE. This Agreement and the License granted herein shall commence on the date first written above and shall continue until: (i) terminated by the joint agreement of the parties; or(ii) as otherwise provided in Section 9. Licensee acknowledges that this License is revocable as set forth in Section 9, and Licensee agrees that Licensee's construction, maintenance, and/or repair of the Pathway on the License, and activities related thereto, shall not constitute a substantial change in position, and shall not render or cause the revocable License granted herein to become peuuanently irrevocable by estoppel. Section 4. CONSIDERATION. There is no license fee associated with this License and the consideration for the License is Licensee's agreement to install and maintain the Pathway during the term of this License. The Parties agree that as a result of adequate consideration, this License is revocable only as provided in Section 9. Section 5. NO ASSIGNMENT OR TRANSFER OF THE LICENSE. This License is personal to Licensee and may not be assigned or sublicensed in any manner. Any assignment or sublicense without Licensor's prior written consent which may be withheld in its sole discretion, shall be voidable and shall constitute a default of the License Agreement. Section 6. TITLE TO THE PROPERTY; USE OF PROPERTY AS A SCHOOL SITE. 6.1. Title to the Property. Licensor represents that it holds title to the Property, including the License Area, Nothing in this Agreement shall constitute the granting of an ownership interest or other interest in land in any of Licensor's real or personal property, including,without limitation, the Property, License Area,or any portion thereof. -2- J 6.2. Use of Property as a School Site. Licensee acknowledges and understands that the Property is an operating California public school site, and the License Area and Pathway located thereon are located within said operating school site. Licensee further acknowledges and understands that use of the Property, including the License Area, for school purposes by Licensor is the primary use of the Property and takes priority over Licensee's right to use the License as granted herein. Licensee understands that the Property, including the License Area, will be used by other parties, including Licensor, and Licensee shall cooperate with Licensor and other applicable parties in reaching amicable arrangements in case of conflict with Licensee's use of the License. Section 7. INSURANCE AND INDEMNITY. 7.1. Insurance. During the term of this License, Licensee, at Licensee's sole cost and expense, shall maintain the Licensee's standard policies of commercial general liability insurance and casualty insurance which shall name Licensor as an additional insured as it relates solely to Licensee's construction, repair, and maintenance of the Pathway, and/or the uses of the Pathway by the general public as described in Section 2 (other than use by the Licensor and its officers, employees, agents while on school business and Licensor's students for school purposes). Licensee shall contractually require Licensee's contractors and subcontractors while engaged in any work to the Licensed Area on behalf of the Licensee to maintain, at their own expense, at all times applicable, the policies of insurance specified in Section 8.1, below, which shall name Licensor as an additional insured. 7.2. Indemnity; Hold Harmless. To the fullest extent permitted by California law, Licensee does hereby indemnify, defend and hold Licensor, its Board, members of its Board, its agents, representatives, employees, officers, consultants, and volunteers (the "Indemnified Parties") harmless from and against any and all liability,judgments, costs, demands, claims, and damages of any kind whatsoever (including, without limitation, attorneys' fees and costs) to the extent any claim is brought against any of the Indemnified Parties as the result of Licensee's construction, repair, and maintenance of the Pathway, the performance of this Agreement, any non-compliance with any federal, state, or local laws or regulations, investigations and/or remediation that pertain to the Licensed Area, and/or the use of the Pathway by the general public as described in Section 2 other than use by the Licensor and its officers, employees, agents while on school business and Licensor's students for school purposes or when used by any party to whom Licensor grants a license, right or permission to use the License Area pursuant to the provisions of sections 6.2, 12.8 or any other reserved right of the Licensor . In case any action or proceeding subject to the provisions of this Section 7.2 be brought against any of the Indemnified Parties, Licensee shall, upon notice from Licensor, defend the same at Licensee's expense by counsel approved in writing by Licensor. Section 8. IMPROVEMENTS; LIENS. MAINTENANCE. 8.1. Improvements. Licensee shall not install or construct, or cause to be installed or constructed, the Pathway or any improvements of any kind on the License Area or Property unless and until the plans, drawings, specifications, and proposed location have been approved in writing by Licensor, and, if required, by the California Division of the State Architect ("DSA"), -3- 0 and all other applicable governmental entities with jurisdiction. Licensee shall, at its sole cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities relating to the improvements installed, constructed, and maintained by Licensee on the License Area, and the use of same as permitted under this License Agreement. Further, any contractor(s) retained by Licensee or on Licensee's behalf with respect to the installation, construction, maintenance, and/or repair of the Pathway improvements on the License Area shall be fully and properly licensed in California, regulated by the Contractor's State License Board, and bonded as required by law, shall be properly registered as public works contractors with the California Department of Industrial Relations as required by law, and must maintain levels of casualty, liability and workers' compensation insurance, and payment and performance bonds, satisfactory to Licensor and consistent with law and District construction requirements. Licensee agrees that Licensee, and Licensee's contractors and subcontractors shall comply with all applicable requirements and laws pertaining to the payment of prevailing wages and related issues, including, without limitation, California Labor Code sections 1720 through 1861, and understands Licensee's, and Licensee's contractor's and subcontractor's obligations and liability for violations of prevailing wage law and other applicable laws. All contractors and subcontractors shall be properly fingerprinted in accordance with applicable law. 8.2. Liens. Licensee shall keep the Property free and clear of all liens, encumbrances, and/or clouds on Licensor's title to the Property or any portion thereof, including, without limitation, claims of liens for labor, services, materials, supplies or equipment performed on or furnished to the Pathway. If a lien or a claim based on a stop payment notice of any nature should at any time be filed against the Pathway improvements or the Property, or any other property of Licensor by any entity that has supplied material or services for the Pathway improvements arising out of that entity's provision of materials or services for the Pathway improvements, Licensee shall promptly, on demand by Licensor and at Licensee's own expense, take any and all action necessary to cause any such lien or claim to be released or discharged immediately therefrom. If Licensee fails to furnish to Licensor, within ten (10) calendar days after demand by Licensor, satisfactory evidence that such lien or claim has been released, discharged, or secured, Licensor may discharge such indebtedness and Licensee shall promptly, within ten(10) calendar days of receipt of invoice from Licensor, reimburse Licensor the amount required therefore, together with any and all losses, costs, damages, and attorneys' fees and expenses incurred or suffered by Licensor. 8.3. Maintenance. Except for damage or wear and tear to the Pathway resulting from Licensor's exercise of its reserved rights to use or allow others to use the Pathway as described in Sections 6.2 or 12,8, or as a result of Licensor's grant of licenses or permission to others (excluding use by the Licensee or public pursuant to this License Agreement)to use the Licensed Area, Licensor will not be required to maintain or repair the Pathway in any manner, and, at no cost to Licensor, Licensee will maintain and repair the Pathway at its sole expense. 8.4. Coordination. Licensee agrees to coordinate its Pathway construction activities and schedule with Licensor to minimize any inconvenience to or interruption of the conduct of school and any other activities on the Property. If reasonable adjustments to the Pathway construction activities and schedule are reasonably deemed necessary by Licensor for purposes of student safety or Licensor's educational program, and if requested in writing by Licensor in -4- V advance or on an emergency basis, Licensee shall adjust its schedule and/or otherwise cooperate with Licensor to conform to Licensor's requirements and requests. Section 9. REVOCATION; DEFAULT. 9.1._Revocation. Licensor may, at Licensor's sole discretion, revoke the License granted herein immediately upon receipt by Licensee of written notice of revocation from Licensor if Licensor determines: (i) that Licensee is in default of this Agreement and has failed to cure such default in accordance with Section 9.3 below; (ii) that the License area, or any portion thereof, is needed for school purposes that, in Licensor's sole and reasonable discretion, outweigh the benefits to pubic and student safety provided by the Pathway; (iii) that use of the Pathway and/or License area granted hereunder interferes with the educational programs of Licensor at the Property that, in Licensor's sole and reasonable discretion, outweigh the benefits to public and student safety provided by the Pathway; or (iv) that Licensee's acts or omissions represent a threat to the health, welfare, or safety of Licensor's students, staff, or the public, or violate applicable laws, codes,rules regulations, or ordinances. 9.2. Default. A default of this License shall occur if: A. As a result of its sole negligence or willful misconduct, Licensee fails to perform any of the terms contained in this License; or B. Licensor unreasonably prohibits public access to the Pathway at any time prior to revocation or termination of the License. 9.3 In the event of default, the non-defaulting party shall provide the defaulting party with written notice of the existence of a default as described herein and shall provide the defaulting party with thirty (30) days after the date of such written notice to cure such default. Upon failure to cure, the non-defaulting party may terminate this License by giving the defaulting party written notice of termination, and/or bring any action, claim, or suit of any kind, including a demand for specific performance. Upon receipt of the notice of termination, this License shall be deemed terminated. Section 10. NOTICES. Any notices, demands, requests, consent, approval, or communications that either party desires or is required to give to the other party shall be in writing and either served personally or sent by prepaid, first class, certified mail to the address set forth below or by overnight delivery by a nationally recognized courier service. Notice will be deemed received upon the date of receipt of personal service or the next day with receipt verifying delivery by overnight courier or by three (3) business days if sent by certified mail. The address of the parties are as follows and may be changed at any time by either party by giving written notice to the other of the change in address: Licensor: Superintendent Los Altos School District 201 Covington Road Los Altos,CA 94022 -5- V Licensee: The Town of Los Altos Hills 26379 Fremont Road Los Altos, CA 94022 Attn: Allen Chen, Public Works Director/City Engineer Section 11. ATTORNEYS' FEES. In the event any action or proceeding at law or in equity be instituted by a party to this License for enforcement of any of the terms of this License or default of this License, the prevailing party (by judgment) in such action or proceeding shall be entitled to recover as part of such action or proceeding such reasonable attorneys' fees, expert witness fees, and court costs as may be fixed by the court or jury,but this provision shall not apply to any cross-complaint filed by anyone other than a Party to this License in such action or proceeding. Section 12. MISCELLANEOUS. 12.1. Entire Agreement. This License Agreement constitutes the entire agreement between the Parties with respect to the matters described or referred to herein, and Licensor has made no representations or warranties to Licensee except as expressly set forth herein. Any statement, agreements, warranties, or representations not expressly contained herein shall in no way bind Licensor, and Licensee expressly waives all claims for damages by reason of any statement, representation, warranty promise, or agreement, if any, not contained in this Agreement. This License may only be amended in writing signed by both Parties hereto. 12.2. Independent Status. This Agreement is by and between two independent entities and is not intended to and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture, or association. Each Party represents and warrants to the other than no brokers have been retained or consulted in connection with this transaction other than as disclosed in writing to the other Party. 12.3. California Law. This Agreement shall be governed by, and the rights, duties, and obligations of the Parties shall be determined and enforced in accordance with, the laws of the State of California. The Parties further agree that any action or proceeding brought to enforce the terms and conditions of this Agreement shall be maintained in Santa Clara County. 12.4. Waiver. The waiver by either Party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained. 12.5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, legal representatives, successors, and assigns. 12.6. Severability. Should any provision of this Agreement be determined to be invalid, illegal, or unenforceable in any respect, such provision shall be severed and the remaining provisions shall continue as valid, legal, and enforceable. 12.7. Incorporation of Recitals and Exhibits. The Recitals and each Exhibit attached to this Agreement are hereby incorporated into this Agreement by this reference. -6- V 12.8. Reservation of Rights. Licensor reserves the right to install, lay, construct, maintain,repair, and operate such water, oil, sewer, electric, telecommunications, power, and gas pipelines, lines, and connections, and the applications and appurtenances necessary or convenient for connection therewith, in, over, upon, through, across, and along the License Area, including the Pathway, or any part thereof. Licensor also reserves the right to grant franchises, easements, rights of way, licenses, and permits in, over, upon, through, across, and along any and all portions of the Property, including the License area. Licensor shall provide thirty day notice to Licensee prior to Licensor's exercises of any rights reserved in this Section, and following exercise of any rights provided in this Section, Licensor shall restore Licensee's Improvements to the condition they were prior to the such exercise, 12.9. Counterparts. This License may be executed in two or more identical counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 12.10. Authority. Each Party to this Agreement represents and warrants that it has the legal right, full power, and authority to enter into, deliver, and carry out the terms of this License Agreement. Each person whose signature appears below represents and warrants that he or she has been duly authorized and has full authority to execute this Agreement on behalf of the Party on whose behalf this License Agreement is executed. Executed as of the date first set forth above. LICENSOR: LICENSEE: Los Altos School District, a California public Town of Los Altos Hills, a California school district municipal corporation By: By: ��r e- Jeff aier ohn Radford Its. Mayor Superin endent Its: • 4 is EXHIBIT "A" Depiction of Location of License {rte i ❑ 3 '.', a Eie- �� s , ,M k 2i a •:1 g y o d • F \ I- i. I! d, N.' s nlz N ~ � a > F ' Ea" % i g' 2 ® o €1 ` 'i P ; vI r °a , • i u! r,'r. '" S 4 . •• tla I W � " ` � • N r $ .Qty° 0 ° A f e ' ' its' azi - ( !<-3'" ° 6`' d '� • b r PiFr> �'fi 2 .. y3 -. O11, D © .p ) s .Fi.zl ro :d O r ° W..:',-.,,:--.R',.� / 1 _ " _ a ` • 7 E. . r ❑ d xt' ' . M t> ,,jk]]�� ♦ ',. tl i 't i -$- 4.0 J RESOLUTION 22-18 RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF LOS ALTOS HILLS APPROVING THE LICENSE AGREEMENT BETWEEN LOS ALTOS SCHOOL DISTRICT AND TOWN REGARDING THE CONSTRUCTION AND OPERATION OF A PUBLIC PATHWAY AT GARDNER BULLIS ELEMENTARY SCHOOL WHEREAS, the Los Altos School District, ("Owner"), is the owner of the property commonly known as Gardner Bullis Elementary School, Los Altos Hills, California; and WHEREAS, Owner has offered to the Town a license agreement for the construction, operation and maintenance of existing and future pathway facilities, for pedestrian, bicycle and equestrian use; and WHEREAS, the City Council has determined it is necessary and proper and in the public interest to accept and enter into an agreement regarding the construction and operation of said public pathway; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the Town of Los Altos Hills that: 1. Public interest, convenience and safety require the Town of Los Altos Hills to enter into the License Agreement described above. 2. The Town of Los Altos Hills hereby approves the License Agreement and the Mayor is hereby authorized on behalf of the Town to execute the Agreement between the Town of Los Altos Hills and Los Altos School District. The above and foregoing Resolution was passed and adopted by the City Council of the Town of Los Altos Hills at a special meeting held on the 22nd day of March, 2018 by the following vote: AYES: Radford, Spreen, Corrigan, Waldeck,Wu NOES: None ABSTAIN: None ABSENT: None BY: n Radford, Mayor ATTEST: Deborah Padovan, City Clerk Resolution 22-I8 Page I