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3 LICENSE AGREEMENT
(Community Garden)
This License Agreement for Community Garden ("Agreement") is effective as of May 6th, 2024 (“Effective Date”), and is between THE CITY OF FOSTER CITY, a California municipal corporation and general law city ("Licensee" or “City”), and ISLAND UNITED CHURCH ("Licensor").
SECTION 1. Recitals. This Agreement is entered into with respect to the following facts:
1.1 Licensor is owner of certain real property located within the City of Foster City, with an address of 1130 Balclutha Drive Foster City, CA 94404, APN 094062760, and depicted on the attached Exhibit A (“Property”).
1.2 Licensor wishes to grant Licensee a license to use the Property for a three-year pilot community garden -related uses, which shall include but not be limited to uses such as gardening by community members, educational events, workshops related to sustainable gardening practices ,meetings and social events relating to the garden, according to the terms discussed in this Agreement (“Garden-related uses”). Said events shall not interfere with the Licensor’s normal operations.
1.3 1.3 The Parties acknowledge that 15 Garden Plots were installed in the area described in Exhibit B and shall remain the property of the IUC.
SECTION 2. Grant of License.
2.1 Grant of License. Licensor grants to Licensee an exclusive license (“License”) to use a portion of the Property, as depicted in Exhibit B, attached hereto and hereinafter incorporated by reference, for the purpose of operating a pilot community garden (“Garden”).
2.2 Improvements. Licensee may install and maintain improvements on the Property reasonably related to the operation of such a Garden (“Improvements”).
Improvements to the Property, include but are not limited to, the following:
2.2.1 Installation and maintenance of water lines and water meter;
2.2.2 Construction and Installation of tool shed;
2.2.3 Installation of a cyclone fence and gate around the Garden.
Licensee shall install these Improvements at its sole cost and may remove those Improvements at the end of the Term of the License. Any Improvements affixed to the Property shall become the property of the Licensor, including the fence, water lines, meter and tool shed.
2.3 Fee. As consideration for the License, Licensee will pay Licensor $1.00 for each year of the Term of the License (“License Fee”). The License Fee shall be paid on June 1st of each year during the Term of this Agreement. 2 2
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3 SECTION 3. Operation of Garden.
3.1 The Garden shall be operated in a manner consistent with the terms of the Memorandum of Understanding (“MOU”) entered into between Licensee and Licensor and the Foster City Community Garden Association, including the Policies and Regulations promulgated by the Foster City Community Garden Association, which may be amended from time to time.
3.2 Utilities. Licensee has sole responsibility for obtaining and paying for all water utilized by the Garden during the License term. If the MOU or this License Agreement is terminated for any reason, the Licensee shall cease paying for water as of the effective date of the termination. No other utilities shall be utilized for the Garden.
SECTION 4. Insurance.
4.1 Licensee will obtain public liability and property damage insurance which names the Licensor as additional insureds and covers Licensee obligations under this Agreement in an amount not less than One Million Dollars ($1,000,000) .
4.2 Licensor shall obtain insurance shall, at its own cost, take out and maintain without interruption during the life of this Agreement in such form and with a company or companies satisfactory to the Licensee policies of the following types of insurance:
4.3 Comprehensive General Liability Policy, affording coverage for bodily and personal injury liability, including liability for death, and property damage, or a combination thereof, in an amount not less than One Million Dollars (S1,000,000).
The Licensee, its Officers, agents, employees, and volunteers shall be named as an additional insured in all insurance policies.
4.4 Worker's compensation insurance and employer's liability insurance for all employees of the Church, in accordance with State law.
SECTION 5. Taxes. The Church shall, at all times, be responsible for any taxes relating to the Premises, assessed by the County of San Mateo, or any other governmental agency.
SECTION 6. Term and Termination.
6.1 Term. Subject to the provisions of this Section regarding early termination, the term of this Agreement will be for a period beginning on the Effective Date through April 2027. If the pilot program for the Garden is successful, the term may be extended by the parties on a year-to-year basis, until termination of the Agreement.
6.2 Termination. Either party may terminate this Agreement, effective after 60 days’ prior notice. Upon termination of this Agreement and at the request of Licensor, Licensee agrees to remove all Improvements that are not included in those named in Section 2.2, as directed by Licensor and restore the Property to its original condition as of the Effective Date, reasonable wear and tear excepted. 3 2
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3 SECTION 7. Indemnification.
7.1 Licensee will indemnify, defend, protect and hold harmless Licensor from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys’ fees and disbursements (collectively, “Claims”), which may arise or otherwise occur as a result of the Improvements or Licensee’s use of the Property under this Agreement, including the installation, maintenance, repair or removal of any of the Improvements, except to the extent that any such Claims are related to the negligence or willful misconduct of Licensor, its agents, or employees.
7.2 Licensor will indemnify, defend, protect and hold harmless Licensee from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys’ fees and disbursements (collectively, “Claims”), which may arise or otherwise occur as a result of the Property under this Agreement, except to the extent that any such Claims are related to the negligence or willful misconduct of Licensee, its agents, or employees.
SECTION 8. Notices. Any notice required to be given under this Agreement must be given by personal service or by deposit of the notice in the custody of the United States Postal Service or its successor, first class postage prepaid, addressed to the party to be served as follows:
Licensee: Stefan Chatwin, City Manager
City of Foster City
610 Foster City Boulevard
Foster City, CA 94404
[email protected]
Licensor: Margaret Hanzl Divine, President
. Island United Church
1130 Balclutha Drive
Foster City, CA 94404
[email protected]
The parties may designate alternate persons to receive notice on their behalf as necessary. Notices will be deemed given as of the date of personal service, or three days after deposit of the notice in the custody of the Postal Service. Notice shall also be sent via email.
SECTION 9. General Provisions.
9.1 Authority to Execute. Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations.
9.2 Binding Effect; Assignment. This Agreement is binding upon the heirs, executors, administrators, and successors of the parties. This Agreement is personal and may not be assigned except to a successor in interest of the respective party. 4 2
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3 9.3 Modification of Agreement. No amendment to or modification of this Agreement will be valid unless made in writing and approved by both parties. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver will be void.
9.4 Waiver. Waiver by any party of any term, condition, or covenant of this Agreement will not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement will not constitute a waiver of any other provision, or a waiver of any subsequent breach or violation of any provision of this Agreement.
9.5 Interpretation. This Agreement will be interpreted, construed, and governed according to the laws of the State of California. Each party has had the opportunity to review this Agreement with legal counsel. The Agreement will be construed simply, as a whole, and in accordance with its fair meaning. It will not be interpreted strictly for or against either party.
9.6 Severability. If any term, condition, or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement will not be affected, and the Agreement will be read and construed without the invalid, void or unenforceable provision.
9.7 Venue. In the event of litigation between the parties, venue in state trial courts will be in the County of Los Angeles. In the event of litigation in a U.S. District Court, venue will be in the Central District of California, in Los Angeles.
9.8Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which will be taken together and deemed to be one instrument. Transmission by fax or PDF of executed counterparts constitutes effective delivery.
9.9 Entire Agreement. This Agreement, including the attached Exhibits A and B, and the MOU, which is incorporated by reference and attached as Exhibit C, is the final and exclusive expression of the parties with respect to the matters addressed in this Agreement and supersedes all other agreements or understandings, whether oral or written, between the parties before the execution of this Agreement. [Signatures on the following page.]
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3 THE UNDERSIGNED AUTHORIZED REPRESENTATIVES OF THE PARTIES have caused this Agreement to be executed as follows:
LICENSEE: CITY OF FOSTER CITY
By:________________________________
Stefan Chatwin, City Manager
LICENSOR: Island United Church
By:________________________________
Margaret Hanzl Divine, President
ATTEST:
___________________________________
Priscilla Schaus, City Clerk
APPROVED AS TO FORM
__________________________________
Benjamin L. Stock, City Attorney
EXHIBIT A
Description and depiction of Property
Located at the corner of Balclutha Drive and Comet Drive in Foster City, CA 94404, this property, owned by the Island United Church, encompasses approximately 45,958 square feet. The premises include a 4,590 square foot church building serving the Island United Church and Challenge Preschool. Adjacent to two private townhome communities, the property features a flat topography and a 9,630 square foot parking lot and includes 17,855 square feet of undeveloped land.
•Land Size: 45,958 square feet
•Existing Structure: Island United Church and Challenge Preschool •Zoning: Public and Semi Public, Public facilities district •Accessibility: Comet Drive and Balclutha Drive
EXHIBIT B
EXHIBIT C- MOU
This Memorandum of Understanding (“MOU”) is effective as of May 6th, 2024(“Effective Date”), and is between THE CITY OF FOSTER CITY, a California municipal corporation and general law city ("City”), and Island United Church (“IUC”) and the Foster City Community Garden Association, a 501 (c)(3) nonprofit organization (“Association”).
The parties shall be referred to individually as “City”, “IUC”, “Association”, or “Party” and shall be collectively referred to as “Parties.”
WHEREAS, the City, IUC and Association desire to develop a site within Foster City for a three-year pilot community garden (“Garden”) to allow members of the public to garden and grow fresh flowers and produce and other community garden-related uses, including educational events and workshops related to sustainable gardening practices, meetings and social events relating to the garden (“Garden-related uses”); and WHEREAS, the IUC has agreed to utilize a portion of their property at 1130 Balclutha Drive Foster City, CA 94404 to be licensed to the City pursuant to a License Agreement dated May 6, 2024, for the purpose of establishing and operating a Garden (“Garden Site”); and
WHEREAS, the Association has agreed to operate the Garden, which shall include the establishment of a process for acceptance of applications to participate in the Garden as a gardener (“Participants”) of one of the approximately 15 plots (“Gardening Plot”); and WHEREAS, all parties desire to establish the terms of the operation of the Community Garden.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements herein set forth, and in reliance on the above Recitals, the Parties hereby agree as follows:
I. Development and Operation of Garden.
A. City Obligations
1. City shall install and maintain a water meter and water pipelines at the Garden Site; City shall provide irrigation water to the garden which will be funded by yearly dues for the duration of the Agreement at no charge to IUC or the Association.
2. The City shall construct and install a tool shed, subject to approval by the IUC and shall provide various gardening tools for use by the Participants; and
3. The City shall financially contribute $14,000 for the expenses associated with the establishment of fencing and gate around the Garden and shall provide the IUC, and the Association with keys to the gate to allow access to the Garden. The Parties acknowledge that the $14,000 contribution towards the fence is not the entire cost, and the remaining cost will come from either IUC or the Association. Estimated cost of fencing is $23,000.
4. The City shall collect fees and deposits associated with the leasing and maintenance of Garden Plots and provide refunds on deposits and fees, if necessary, when a participant terminates their use of a Garden Plot. The Association shall establish Policies and Regulations (as set forth in section C) regarding payment of fees and refunds to Gardeners.
B. IUC Obligations
1. IUC shall allow access to the approximately 2,026 square foot Garden Site pursuant to the License Agreement between City and IUC dated May 6, 2024; and
2. IUC shall allow visitors to the Garden to park their vehicles on the street adjacent to the Garden Site and access the Garden through their property. IUC may establish reasonable rules regarding access to the Garden and parking at the Garden Site, which the parties shall endeavor to comply with.
C. Association Obligations
1. Association shall maintain a 501C certification and provide a copy of annual certification to IUC. Association shall be responsible for operating and maintaining the Garden. The operations shall include the following:
a. Maintaining the 15 Gardening Plots for use by Participants in the Garden. The Gardening Plots shall be approximately 96 sq. ft. in size; b. Creating an application process whereby applicants who desire a Gardening Plot are either issued a Gardening Plot or are put on a waiting list until such time as a Gardening Plot becomes available or this MOU terminates;
b. Establishing the rules and regulations for the Participants to adhere to for day-to-day operation of the Garden (“Policies and Regulations”. The Policies and Regulations, attached hereto and hereinafter incorporated by reference as Exhibit A, shall include among other things, the hours of operation, the requirements relating to Participant’s use of tools, water usage, payment of fees for use of Garden, unauthorized plantings, etc. The Policies and Regulations shall also provide enforcement mechanisms, including termination of participation should a Participant fail to adhere to the Policies and Regulations. The City Director of Parks and Recreation and the IUC shall review and provide comments on the Policies and Regulations before they are finalized and provided to Participants;
c. Once approved by the City and the IUC, the Association shall provide the City and IUC one copy of all Policies and Regulations it uses in connection with assignment of Garden Plots and operation and maintenance of the Community Gardens to each Participant. A copy of the Policies and Regulations shall be posted in the Garden. The Policies and Regulations may be amended by the Association, with the approval of City staff and the IUC from time to time;
d. Association shall ensure that all Participants execute the release attached hereto as Exhibit B;
e. Association shall ensure that all Participants adhere to the Policies and Regulations when utilizing the Garden Plot;
f. Neither Association nor Participants shall utilize the Garden for commercial activity or use it in a manner that will interfere with the normal operations of the IUC and any school that is located there. However, this does not preclude the establishment of fees by Association to pay for costs incurred or anticipated by Association in association with operation and maintenance of the Gardens. Any fees charged by Association to the Participants for this purpose, shall be collected by the City and are subject to review and approval by the City Director of Parks and Recreation;
g. Maintain oversight of the daily operations of the Garden and file any required corporate and taxes documents for the Garden;
h. Conduct regular inspection of the Gardening Plots for signs of abuse or damage and check the irrigational hose bibbs and hoses for damage or wear; i. Prepare a quarterly report to the City and IUC highlighting any concerns or issues relating to the maintenance and operation of the Garden; and j. To the maximum extent possible, the Association and Participants shall maintain organic gardening practices in the Garden. Spraying of pesticides and herbicides shall be prohibited in the Garden.
k. Prepare and participate in various community-building initiatives, including workshops, volunteer opportunities and educational programs aimed at fostering engagement and learning.
II. Term and Termination.
A. Except as provided in Section IV (E), the Term of this Agreement shall commence on the Effective Date and shall terminate on March 31, 2027, unless terminated earlier in accordance with subsection B. If the pilot program for the Garden is successful, the term may be extended by all the parties on a year-to-year basis, until termination of the Agreement in accordance with Subsection B.
B. Any party may terminate this MOU upon providing sixty (60) days’ written notice to the Parties.
III. Relationship of Parties
It is expressly understood that this is an agreement between the Parties and that no individual agency, employee, partnership, joint venture, or other relationship is established by this MOU. No volunteers, agents, employees shall be considered employees of the City.
IV. Hold Harmless.
A. The IUC shall indemnify, defend, and hold harmless the City, Association and their officers, agents, employees, and servants against all damages, claims, liabilities, losses, and other expenses, including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, to the extent that they arise out of (1) the negligence or willful misconduct of IUC in performing its obligations described in this MOU; or (2) any acts or omissions by IUC that arise out of IUC’s negligence or willful misconduct.
B. The City shall indemnify, defend, and hold harmless the IUC, Association and their officers, agents, employees, and servants against all damages, claims, liabilities, losses, and other expenses, including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, to the extent that they arise out of (1) the negligence or willful misconduct of City in performing its obligations described in this MOU; or (2) any acts or omissions by City that arise out of City’s negligence or willful misconduct.
C. The Association shall indemnify, defend, and hold harmless the City, IUC, and their officers, agents, employees, and servants against all damages, claims, liabilities, losses, and other expenses, including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, to the extent that they arise out of (1) the negligence or willful misconduct of the Association in performing its obligations described in this MOU; or (2) any acts or omissions by Association that arises out of Association’s negligence or willful misconduct.
D. A party seeking indemnity and defense under this section shall provide the indemnifying and defending party with prompt notice of any claim and give control of its defense and settlement to the indemnifying and defending party. The party seeking indemnity and defense shall also cooperate in all reasonable respects with the indemnifying and defending party, its insurance company, and its legal counsel in its defense of such claim. The obligation to defend and indemnify pursuant to this section shall not cover any claim in which there is a failure to give the indemnifying and defending party prompt notice, but only to the extent that such lack of notice prejudices the defense of the claim. The indemnifying and defending party may not settle any potential suit hereunder without the other party’s prior written approval, which will not to be unreasonably withheld, conditioned, or delayed. If a party who owes indemnity and defense under this section fails to promptly indemnify and defend a covered claim, the other party shall have the right to defend itself, and in such case, the party owning indemnity and defense shall promptly reimburse the other party for all of its associated costs, legal fees, and expenses.
E. This Section IV. shall survive termination of this MOU.
V. Notices.
All notices, demands, requests, advices or designations that may be or are required to be given by either party to the other hereunder shall be in writing. All notices hereunder shall be sufficiently given, made or delivered if sent by email and also one of the following methods: 1) served personally: 2) by national overnight courier service; or 3) if sent by United States certified or registered mail, postage prepaid, addressed as follows:
To City: Stefan Chatwin, City Manager
610 Foster City Boulevard
Foster City, Ca 94404
[email protected]
To IUC: Margaret Hanzl Divine, President
1130 Balclutha Drive
Foster City, CA 94404
[email protected]
To Association: Curtis Chen, President
3314 Bay Court
Belmont, CA 94002
[email protected]
Each notice referred to in this Section shall be deemed to have been given on the third business day following the date of such mailing (or any earlier date evidenced by a receipt evidencing delivery from such national courier service or United States Postal Service) or immediately if personally delivered to the person to whose attention notices are to be directed. Either party may change its address for notices by giving notice to the other as above provided.
VI. Insurance.
For the duration of the Term of this MOU, the Parties shall maintain comprehensive (or commercial) general liability insurance with limits of not less than One Million Dollars ($1,000,000) combined single limit for personal injury, bodily injury or death or property damage or destruction (including loss of use thereof) for any one occurrence.
The insurance shall name all Parties as an additional insured. Evidence of such insurance shall be provided to any other party upon request.
VII. Miscellaneous.
A. Amendments. No provision of this Agreement may be amended or added to except by an agreement in writing signed by all of the parties hereto or their respective successors in interest.
B. Interpretation. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; (e) "includes" and "including" are not limiting; and (f) "days" means calendar days unless specifically provided otherwise.
C. Choice of Law; Venue. This MOU shall be governed by and construed in accordance with the laws of the State of California. Any action or proceeding instituted arising out of or related to this MOU shall be filed in a court of competent jurisdiction in San Mateo County, California.
D. Prior Agreements. This MOU, including the attached Exhibits A and B, and the License Agreement, which is incorporated by reference and attached as Exhibit C, contain all of the agreements of the Parties hereto with respect to the matters identified herein, and no prior or contemporaneous agreements, except for the License Agreement between the City and the IUC, or understandings pertaining to any such matters shall be effective for any purpose, except for contemporaneous written agreements, specifically referring to this MOU, signed by both parties.
E. Counterparts. This MOU may be executed in any number of counterparts, provided each of the parties hereto executes at least one counterpart; each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts, together, shall constitute but one agreement.
F. The MOU shall be binding on all parties, their successors and assigns.
G. The persons signing and executing the MOU have been fully authorized to execute this MOU and to validly and legally bind the Parties to all the terms, performances and provisions herein set forth.