551\94\3279467.2
PEDESTRIAN ACCESS
LICENSE AGREEMENT
This Pedestrian Access License Agreement (the “Agreement”) is made as of [________], 2022 (“Effective Date”), by and between COLUMBIA REIT - UNIVERSITY CIRCLE, LP, a Delaware Limited Partnership (“Licensor”), and the CITY OF EAST PALO ALTO, a California Municipal Corporation, (“Licensee”).
RECITALS
A. Licensor is the owner of that certain real property consisting of approximately 11.84 acres of land commonly referred to as 1900, 1950 and 2000 University Circle in the City of East Palo Alto, bearing the APNs #063-680-020, 063-680-100, 063-680-130, 063-680-150, 063-680- 190 (“Property”).
B. Licensor has submitted applications to Licensee to redevelop an existing 97,659 square foot surface parking lot located in the southern portion of the Property with an approximately 180,000 square foot office building with net increase of approximately 400 new structured parking spaces and approximately 12 new surface parking spaces, an approximately 2,800 square foot space along with an exclusive patio dedicated for community use, and water flow and pressure enhancements to ensure adequate fire suppression measures. (“Project”). The Project also includes improved pedestrian access into and across the Property.
C. Licensee desires to obtain a license for pedestrian access so that members of the public may travel through and across a portion of the Property on foot (the “Licensed Purpose”).
That portion of the Property granted to Licensee for the Licensed Purpose is referred to herein as the “License Area” and is depicted on Exhibit A to this Agreement.
D. Subject to the terms of this Agreement, Licensor is willing to grant to Licensee a right to use the License Area for the Licensed Purpose pursuant to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants, terms and conditions set forth in this Agreement, the Parties agree as follows:
1. Limited Grant of License. Licensor hereby grants to Licensee and the general public (each a “User” and collectively, the “Users”), a non-exclusive license (the “License”) to enter upon the License Area solely for the Licensed Purpose, subject to all matters of record affecting the License Area, on the terms and conditions set forth in this Agreement. Nothing in this Agreement shall give Users the right, without prior written consent of Licensor, to engage in any activity in the License Area other than the Licensed Purpose, including, without limitation any of the following: (i) cooking, dispensing or preparing food; (ii) selling any item or engaging in the solicitation of money, signatures or other goods or services; (iii) sleeping or staying overnight; (iv) using sound amplifying equipment; or (v) engaging in any illegal, dangerous, intimidating or other activity that Licensor reasonably deems to be inconsistent with other uses on the Property or with the use of the License Area by other Users for the Licensed Purpose, such as excessive noise or boisterous activity, public intoxication, or the placement of personal effects in the License Area.
Licensor shall retain the right to cause persons engaging in such conduct to be removed from the Property. Should any such persons refuse to leave the Property, they may be deemed by Licensor to be trespassing and Licensor may contact local law enforcement to request that appropriate law enforcement actions be taken pursuant to Penal Code Section 602. Licensor shall be entitled to establish and post rules and regulations for the use of the License Area consistent with the foregoing. Nothing in this Agreement shall be deemed to mean that the License Area is a public park or subject to the legal requirements applicable to a public park or other public space.
2. Term of License. The term (“Term”) of this License shall be effective upon issuance of a Certificate of Occupancy for the Project (the “Start Date”) and shall continue in effect until such time as any one of the events described in Section 5 below—Right to Terminate License—occurs.
3. No Gift or Dedication. The License Area shall remain the private property of Licensor with members of the public having only a license to occupy and use the License Area in a manner consistent with this Agreement. Nothing contained herein shall be deemed to be a gift or dedication of any portion of License Area to or for the general public or to Licensee, it being the intention of Licensor that the License granted herein shall be strictly limited to and for the purposes herein expressed.
4. Users’ Assumption of Risk. Licensor makes no representations or warranties whatsoever, under this Agreement with respect to the physical condition of the License Area and Licensor shall have no responsibility under this Agreement with respect thereto. The use of the License granted herein shall be with the License Area in its “AS IS” physical condition. Licensor shall not be responsible to Users for any defect or change in conditions in the License Area, for any damage occurring thereto or for the existence of any violation of any Applicable Law. Users will use the License Area at their sole risk. Licensor will not be liable for personal injury to or death of any person or persons (including any User) or for any damage to the property of any person (including that of any User) resulting from any User’s exercise of the License.
5. Right to Terminate. Licensor shall have the right to terminate this License if any one of the following events occur: (i) any portion of the Property, including the License Area, is repeatedly used in excess of the Limited Grant of License as set forth above in Section 1 and such excess has not been cured in accordance with Section 10; (ii) any Portion of the Property, including the License Area, is repeatedly used in a manner that does not comply with the License Laws as further detailed and defined in Section 6 below and such non-compliant use has not been cured in accordance with Section 10; or (iii) any portion of the Property, including the License Area, becomes the subject of an application for redevelopment (“Application for Redevelopment”) and such Application for Redevelopment is approved by the City and the first permit is issued (e.g. demolition, grading, etc.). For purposes of this Agreement, Application for Redevelopment shall mean any application submitted to the City of East Palo Alto for a change in use of any portion of the Property, including the License Area.
6. Use of License; Compliance with Laws. The use of the License Area by Users shall at all times be consistent with the Licensed Purpose and be conducted in compliance with all applicable city, state, and federal laws, regulations and the following rules (collectively, “ License Laws”):
(a) Licensor may limit access to and use of the License Area between the hours of 10:00 p.m. through 5:00 a.m., and as specified in Section 7.
(b) Users use of the License Area shall be in such a manner as not to interfere with or obstruct (i) any portion of the Property including the License Area, and (ii) any business operations or other activities being conducted by the Licensor or its permittees on the Property.
(c) No person shall assemble, collect or gather on the License Area in a manner that impedes the free passage or use by pedestrians.
(d) Bicycles, roller skates, scooters, skateboards, and similar modes of transportation shall be walked through the License Area in accordance with the Licensed Purpose, which only authorizes pedestrian access through and across the License Area by members of the public.
(e) No person shall enter, remain, stay, or camp in the License Area when it is closed to the public.
7. Temporary Closure. Licensor shall have the right, without obtaining the consent of the Licensee (with the exception of any City requirement to obtain a permit to perform any work), to temporarily close the License Area to Users from time to time for one of the following two reasons. Licensor shall post notice setting forth the reason for and the scheduled duration of the closure at the major entrances to the License Area, except in emergency situations. (a) Licensor may temporarily close the License Area in the event of a risk to the public health or safety created by causes including but not limited to flood, storm, fire, earthquake or other natural disaster, explosion, accident, criminal activity, riot, civil disturbances, civil unrest or unlawful assembly.
(b) Licensor may temporarily close that portion of the License Area as is necessary to undertake repair and maintenance activities of the License Area in order to make any such necessary repairs and maintenance.
8. Maintenance. As set forth in Section [X] above, the License granted herein shall be with the License Area in its “AS IS” physical condition. Licensor represents that it will maintain the License Area in the same or better condition in which the Licensed Area exists as of the Start Date and through the Term of License.
9. Insurance. Licensor represents that it maintains a General Liability Policy of insurance appropriate for the uses existing on the Property as of the Start Date, as specified in Exhibit B. Licensor further represents that it will maintain the foregoing policy of insurance throughout the Term of this Agreement.
10. Remedies, Notice and Cure. In the event Licensee or any User breaches any provision of this Agreement, Licensor shall give Licensee written notice setting forth such breach in reasonable detail and Licensee must, within thirty (30) days after receiving such notice, cure the breach, or if not possible to cure within thirty (30) days, have commenced such cure and shall diligently prosecute such cure to completion. If Licensee does not cure within the applicable time period, the breach shall constitute a default and Licensor may terminate this Agreement in accordance with Section 5 and shall have all rights available at law and in equity.
11. Approvals. Each of the parties hereby represents and warrants that its execution of this Agreement has been duly authorized by all necessary corporate or other action and constitutes a valid and binding obligation of said party.
12. Notices. Any payment or notice provided for herein or otherwise required to be given hereunder shall be given by overnight courier, registered mail, certified United States mail, or first class U. S. mail, postage prepaid, addressed to the other party as follows:
If to Licensee: City Manager
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
With a copy to: City Attorney
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
If to Licensor: David S. Dowdney
Senior Vice President
Columbia Property Trust
650 California Street, Suite 200
San Francisco, CA 94108
With copy to : Sigrid R. Waggener, Esq.
Manatt, Phelps & Phillips, LLP
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Any notice or payment mailed as provided herein shall be deemed received two (2) days after the date it is postmarked and mailed as provided in this Agreement. Either party may change its address by providing written notice of same to the other as provided in this Section.
11. Assignment, Successors and Assigns. This Agreement may not be assigned except in the event the Property is transferred, in which event this License shall continue to remain in full force and effect and any such transferee shall be bound by the terms of this License. Prior to any transfer of the Property or any portion thereof, Licensor shall provide the transferee with notice of the existence of this License and shall provide notice to the Licensee of the transfer including a copy of a fully executed assignment and assumption agreement whereby the transferee assumes all of Licensor's rights and obligations under this License.
12. Severability. If any clause, sentence, or other portion of this Agreement becomes illegal, null, or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion shall remain in full force and effect.
13. Limited Indemnification. Licensor shall indemnify Licensee for any claims, demands or actions in law or equity arising from the gross negligence, intentional acts or willful misconduct of Licensor in Licensor’s performance under this this Agreement. Neither Licensor nor Licensee shall be obligated to indemnify the other for any claims, demands, or actions in law or equity arising from or alleged to have arisen from any aspect of this of this Agreement other than the gross negligence, intentional acts, willful misconduct of Licensor in Licensor’s performance under this this Agreement.
14. Miscellaneous. This Agreement represents the full, complete and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior written or oral agreements on the same subject. Any modification of this Agreement must be in writing and signed by both parties. Any waiver of a provision of this Agreement by a party must be in writing. The parties may sign this Agreement in counterparts. The signature pages from the separately signed counterparts may be attached to one copy of this Agreement to form a single document. This Agreement shall be construed and interpreted and governed by and in accordance with the local law of the State of California without reference to any choice of law rules or policies which may refer the resolution of any dispute arising hereunder to the laws of any other jurisdiction. If a court of competent jurisdiction holds that any provision of this Agreement is invalid or unenforceable, the remaining provisions of this Agreement will continue in full force.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives on the date first above written.
LICENSOR
By:_______________________________
Its:_______________________________
LICENSEE
By:_______________________________
Its:_______________________________
551\94\3279467.2
EXHIBIT A
LICENSE AREA
EXHIBIT B
INSURANCE REQUIREMENTS
A. Commercial General Liability Insurance: Licensor’s General Liability insurance shall include contractual liability coverage. Licensor shall take out and maintain during the life of this License such Bodily Injury Liability and Property Damage Liability Insurance (Commercial General Liability Insurance) on an occurrence basis as shall protect it from any and all claims for damages for bodily injury, including accidental death, as well as claims for property damage which may arise from the Licensor’s operations under this License, whether such operations be by Licensor or by any sub-Licensor or by anyone directly or indirectly employed by either of them. The amounts of such insurance shall be not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000), in aggregate or Two Million Dollars ($2,000,000) combined single limit bodily injury and property damage for each occurrence.
B. Additional Insured Status: The City of East Palo Alto shall be named as an additional insured on any such policies of comprehensive general liability insurance.
C. Verification of Coverage: Licensor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause).
D. Notice of Cancellation: Licensor shall provide thirty (30) days' notice, in writing, to the City, at 2415 University Avenue, East Palo Alto, CA 94303, of any pending change or cancellation of the policy.