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This document is recorded for the
benefit of the City of East Palo Alto and
is entitled to be recorded free of charge
in accordance with Section 6103 of the
Government Code.
After Recordation, return to:
[INSERT ADDRESS FOR EAST
PALO ALTO]
EASEMENT AGREEMENT
This Easement Agreement (the “Agreement”) is entered into this ___ day of , 2020 (the “Effective Date”), by and between COLUMBIA REIT – UNIVERSITY CIRCLE, L.P., a Delaware limited partnership (the “Grantor”) and the CITY OF EAST PALO ALTO, a California municipal corporation (the “Grantee”).
RECITALS
A. Grantor is the owner of that certain real property located in the County of San Mateo, State of California, described in Exhibit A attached hereto and incorporated herein by reference (the “Property”).
B. Grantor desires to grant to Grantee and Grantee wishes to accept from Grantor an easement over a portion of the Property described in Exhibit B (the “Easement Area”) for the purpose of the construction, maintenance and use of a public sidewalk for use by walkers and bicyclists and expansion of University Avenue on the terms and conditions as provided herein.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. GRANT OF EASEMENT.
1.1 Grant of Easement. Grantor hereby grants to Grantee and its successors and assigns, a perpetual, non-exclusive easement in gross (the “Easement”) across and over the Easement Area for the purpose of the construction, maintenance and use of a public sidewalk (the “Public Sidewalk”), expansion of University Avenue, curbs and other ancillary improvements in connection with the Public Sidewalk and expansion of University Avenue (the “Improvements”), subject to the terms and conditions of this Agreement. The Easement excludes the use of motorized vehicles on the Public Sidewalk, with the sole exception being use by electrical bicycles, 2 175850654.4
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scooters and skateboards that are permitted on public sidewalks pursuant to the laws and ordinances of the City of East Palo Alto.
1.2 Condition to Easement. If Grantee does not commence construction of the Improvements with a projected completion date of eighteen (18) months from such commencement and secure full funding of the Improvements and all building and other permits required for the Improvements (collectively, the “Commencement of Construction”), within ten (10) years of the Effective Date, then Grantor shall have the right to terminate the Easement and this Agreement by written notice to Grantee after such ten (10) year period and prior to the Commencement of Construction.
1.3 Termination of Easement upon Abandonment. If Grantee ceases to use the Easement Area for a Public Sidewalk for a period in excess of one (1) year (except for temporary closure for maintenance and repairs) following the completion of the construction of the Improvements, the Easement and this Agreement shall automatically terminate and Grantee shall have no further rights to use the Easement Area or responsibilities related to the Easement Area.
2. CONSTRUCTION OF IMPROVEMENTS WITHIN THE EASEMENT AREA.
2.1 Funding and Construction. Grantee shall be responsible for funding and completing all the initial design, engineering, and construction of the Improvements. The Improvements shall be installed by Grantee in a good and workman-like manner, and in compliance with all applicable law, at Grantee’s sole cost and expense. Grantee shall reasonably coordinate the construction of the Improvements with Grantor in order to minimize any negative impacts on the portion of the Property not covered by the Easement.
2.2 Approval of Improvements. The Improvements shall be constructed in accordance with the preliminary plans [ADD DESCRIPTION OF PLANS – NAME OF PLANS, ENGINEER/ACRHITECT THAT PREPARED PLANS AND DATE] (the “Preliminary Plans”) which have been approved by Grantor. If Grantee wishes to make any material modification to the Preliminary Plans, Grantee shall obtain Grantor’s prior written approval to such material modifications, which approval shall not be unreasonably withheld or delayed. Grantor shall not make any improvements or make any material alterations to the Easement Area other than the Improvements shown on the Preliminary Plans or approved by Grantor in accordance with the preceding sentence. The Improvements must include a Public Sidewalk.
3. MAINTENANCE, REPAIR AND REPLACEMENT.
3.1 Maintenance Repair and Replacement of Improvements. Grantee shall be obligated to maintain, repair, and care for the Improvements in good condition and repair.
3.2 Liens. Grantee shall promptly pay all costs and charges for its materials, labor and other costs incurred and shall hold Grantor and the Grantor’s Property free and harmless from any liens for labor or materials in connection therewith. Grantee agrees that if such a lien shall be filed against the Grantor’s Property, Grantee shall, within ten (10) days thereafter at its own cost and expense, cause such lien to be discharged.
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3.3 Conditions. Grantee shall when performing Grantee’s obligations hereunder (a) maintain, and shall not block or otherwise interfere with, all existing access routes on the Property, and (b) maintain the integrity of all existing fences on the Property which are not within the Easement Area and cooperate with Grantor and all tenants and licensees of the Grantor’s Property to install new fences that need to be relocated because of the Improvements, at Grantee's sole cost and expense. To the extent that Grantee proceeds with any activities as permitted by this Agreement that require Grantee to remove existing fences, Grantee shall provide replacing fencing where reasonably necessary in order to secure the portion of the Property not within the Easement Area.
4. INDEMNITY.
4.1 INDEMNITY FROM GRANTEE PRIOR TO PUBLIC USE. Grantee shall defend, indemnify and hold harmless Grantor, its officers, officials, employees, volunteers, agents and tenants from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of Grantee’s and Grantee’s contractors and agents (a) use of the Easement Area, and (b) construction activities in connection with any improvements that Grantee elects to make within the Easement Area, except for injuries and damages caused by the sole negligence or willful misconduct of Grantor; provided, further, that if the claims or suits are caused by or result from the concurrent negligence of Grantee or its officers, officials, employees, volunteers and agents and Grantor, their officers, officials, employees, volunteers and agents, then this indemnity provision shall be valid and enforceable only to the extent of each parties’ costs or damages incurred beyond that which resulted from their own negligence.
4.2 INDEMNITY FROM GRANTEE AFTER ALLOWING FOR PUBLIC USE.
Prior to Grantee allowing the public to use the Easement Area, the parties must enter into a maintenance and indemnity agreement setting forth Grantee’s obligations relating to maintenance and repair of the Easement Area, as well as setting forth Grantee’s indemnity obligations relating to Grantor relating to the public’s use of the Easement Area. Such maintenance and indemnity agreement must be on terms reasonably acceptable to both Grantor and Grantee.
5. ATTORNEY FEES.
If any action is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its attorneys’ fees and costs and necessary disbursements, in addition to any other relief to which the party may be entitled.
6. AMENDMENT.
This Agreement may not be modified except in a writing signed by both parties.
7. GOVERNING LAW; VENUE.
This Agreement shall be governed by the laws of the State of California. In case of dispute, venue shall reside in San Mateo County, California.
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8. SEVERABILITY.
If any provision in this Agreement is held by any court to be invalid, void or otherwise unenforceable, the remaining provisions shall nevertheless continue in full force and effect.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties regarding its subject matter. This Agreement is deemed to have been drafted equally by both parties.
10. RECORDATION; RUNS WITH THE LAND.
This Agreement shall be recorded with the Santa Mateo County Recorder against the Property and shall run with the land and be binding upon all heirs, successors and assigns of Grantor and all future owners of all or any portion of the Property.
11. NOTICES.
Any notice, demand, request, 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 mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within forty-eight hours from the time of mailing if notice is served by mail. Either party may change its address by notifying the other party in writing of the change address.
If to Grantee: City of East Palo Alto
2415 University Avenue
East Palo Alto, California 94303
Attention:
With a copy to:
, California
Attention:
Grantor: Columbia REIT – University Circle, L.P.
c/o Columbia Property Trust
650 California Street, Suite 200
San Francisco, California 94108
Attention: David Dowdney
With a copy to: DLA Piper LLP (US)
2000 University Avenue
East Palo Alto, California 94303
Attention: Jim Anderson
12. COUNTERPARTS.
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This Agreement may be executed in any number of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement.
GRANTOR
COLUMBIA REIT – UNIVERSITY CIRCLE, L.P.,
a Delaware limited partnership
GRANTEE
CITY OF EAST PALO ALTO, a
California municipal corporation
By: Columbia REIT – University Circle GP, LLC,
a Delaware limited liability company,
its general partner
By: Columbia Property Trust Operating
Partnership, L.P, a Delaware limited
partnership, its sole member
By: Columbia Property Trust, Inc.,
a Maryland corporation,
its general partner
By:
Name:
Title:
[NOTE – NEED SIGNATURE
BLOCK FOR THE CITY OF
EAST PALO ALTO TO INSERT
HERE]
A-1
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[INSERT LEGAL DESCRIPTION OF GRANTOR’S ENTIRE PARCEL]
B-1
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EXHIBIT B
LEGAL DESCRIPTION OF EASEMENT AREA
[INSERT DESCRIPTION OF EASEMENT AREA]
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ACKNOWLEDGMENT
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of _________________________ )
On ______________________ before me,
(insert name and title of the officer)
personally appeared ______________________________________________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________ (Seal)
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ACKNOWLEDGMENT
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of _________________________ )
On ______________________ before me,
(insert name and title of the officer)
personally appeared ______________________________________________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________ (Seal)