LICENSE AGREEMENT TO MAINTAIN FACILITIES
IN PUBLIC RIGHT OF WAY
This License Agreement ("Agreement"), dated as of
2023 ("Effective Date") is issued by the CITY OF MENIFEE, a California municipal corporation ("City") to Hidden Hills Homeowners Association, a California nonprofit mutual benefit corporation ("Licensee"). City and Licensee are sometimes individually referred to herein as a "Party" and collectively referred to herein as the "Parties."
RECITALS
On June 16, 2009, the City approved Extension of Time No. 2009-036 (the "EOT"), for the development of residential Tracts 30142, 30142-1, and 30142-2 (the "Project"), also known as "Hidden Hills," and located at the southeast corner of Murrieta Road and Craig Avenue in Menifee, CA
B. Licensee is a property owner's association which has been established pursuant to the City's conditions of approval issued in connection with the EOT to, among other purposes, maintain common areas within the Project.
The City currently maintains, as public right-of-way, the existing roadways within and fronting the Project (the "ROW").
D. The developer of the Project proposed to construct and Licensee proposes to maintain landscaped areas within the ROW, along certain portions of Yeoman Place, Quilt Way, Beth Street and other ROWs (the "Association ROW Landscape Areas"), as depicted in Exhibit"A", which is attached hereto and incorporated herein by this reference.
Licensee has requested a license from the City to permit Licensee to maintain the Association ROW Landscape Areas, including payment for electricity and water associated with such maintenance.
F. Subject to the terms and conditions set forth below in this Agreement, City has agreed to grant to Licensee the requested license.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is acknowledged, and the mutual promises, covenants, and conditions herein contained, the Parties agree as follows:
DEFINITIONS.
1.1. "Agency" means any governmental agency or quasi-governmental agency other than the City.
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1.2. "Association ROW Landscape Areas" shall have the meaning set forth in Recital D.
1.3. "City" means the City of Menifee, a California municipal corporation.
1.4. "Commencement Date" means the first day of the month following the month in which City approves this Agreement.
1.5. "EOT" shall have the meaning set forth in Recital A.
1.6. "Laws" means any applicable judicial decisions, statutes, laws, ordinances, resolutions, regulations, rules, administrative orders, certificates, orders, or other requirements of the City or other Agency having joint or several jurisdiction over the parties to this Agreement, the subject matter of this Agreement, or the ROW, which are in effect either at the time of execution of this Agreement or during the Term of this Agreement.
1.7. "Licensee" means the Licensee as defined above and its lawful successors, assigns, and transferees.
1.8. "Licensee Improvements" means the landscape and any other improvements permitted to be constructed and/or installed within the Association ROW Landscape Areas pursuant to this Agreement.
1.9. "P imbed partnership, a sole propretoratip, a inter i a cousiness are aral any other form of business association, other than Licensee.
1.10. Project shall have the meaning set forth in Recital A.
1.11. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any Party. All Provisions, whether covenants or conditions, shall be deemed both covenants and conditions.
1.12. "ROW" shall have the meaning set forth in Recital C.
2. TERM.
The initial term of this Agreement shall be one (1) year commencing upon the Effective Date of this Agreement unless otherwise terminated pursuant to the terms of this Agreement ("Initial Term". Following the Initial Term, if not terminated, this Agreement shall automatically be renewed for one year (each such renewal term, an "Extension Term") on the same terms as set forth in this Agreement unless either Licensor or Licensee terminates this Agreement by written notice to the other Party at least ninety SMRH:4836-5297-2730.3 -2-
(90) days prior to the expiration of the Initial Term or any Extension Term. The "Term" shall refer to the Initial Term and each Extension Term (if applicable), unless stated elsewhere within this Agreement. All of the terms and conditions in this Agreement shall be applicable during any Extension Term, and any references in this Agreement to the "Term" shall include any Extension Term. Upon the expiration or earlier termination of this Agreement, Licensee shall have no further obligations under this Agreement, including without limitation, Licensee shall have no further obligation to maintain the Association ROW Landscape Areas or to incur any costs, including but not limited to water and electrical costs associated with the Association ROW Landscape Areas.
3. SCOPE OF LICENSE.
3.1. General. City hereby grants to Licensee a non-exclusive license ("License") in, on, across, and over the Association ROW Landscape Areas in accordance with the terms, restrictions, and conditions of this Agreement. Any rights granted to Licensee under this Agreement, which shall be exercised at Licensee's sole cost and expense, shall be subject to the prior and continuing right of City under the Laws for any and all parts of the ROW, exclusively or concurrently, with any other Person or Persons, and further shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title as of the installation of any Licensee Improvements, which may affect the Association ROW Landscape Areas or any adjacent ROW. Licensee shall not infringe on the foregoing without the written approval of the City and any affected Person. If such infringement occurs, City may terminate this Agreement with ten (10) days written notice if such infringement is not cured within thirty (30) days of written notice from City of such infringement. Nothing in this Agreement shall be deemed to grant, convey, create, or vest in Licensee a real property interest in the Association ROW Landscape Areas.
3.2. Standards and Licensee's Responsibilities. All of the Licensee Improvements within the Association ROW Landscape Area shall be maintained by Licensee to City standards. Licensee shall pay for all water costs and electrical costs associated with maintenance of the Association ROW Landscape Areas pursuant to the separate meters for such water and electricity usage. Licensee, its officers, employees, contractors, subcontractors, agents, visitors, and volunteers shall not damage the Association ROW Landscape Areas or commit waste thereon. As consideration for allowing this use, Licensee shall, at its sole cost and expense, and to the satisfaction of the City, keep the Association ROW Landscape Areas clean and neat in appearance and well-maintained. If Licensee fails to maintain the Licensee Improvements in the condition required by this Agreement, after providing thirty (30) days' written notice to Licensee of such failure, City may perform such maintenance and Licensee shall be responsible to reimburse City for the costs thereof, plus a ten percent (10%) administrative fee.
3.3. Permits. This Agreement is made contingent upon Licensee obtaining all certificates, permits, entitlements, environmental review, studies, and other approvals required SMRH:4836-5297-2730.3 -3-
by Laws and/or that any federal, state, or local authority may require for the construction and/or operation of the Licensee Improvements.
3.4. Non-interference. Except as permitted by City, in writing, by Laws or by this Agreement, in the performance and exercise of its rights and obligations under this Agreement, Licensee shall not interfere with the existence and operation of any public right-of-way, sanitary sewers, water mains, storm drains, gas mains, poles. aerial and underground electric and telephone wires, electroliers, cable television, and other telecommunications, utility, and municipal property without the express prior written approval of City.
3.5. Compliance with Laws. Licensee shall comply with all Laws in the exercise and performance of its rights and obligations under this Agreement.
3.6. No warranty. Access to the Association ROW Landscape Areas under this Agreement is conditioned upon acknowledgment by Licensee that City makes no representations or warranties concerning the condition of the Association ROW Landscape Areas as they may exist from time to time and that City has no duty to warn Licensee of any conditions. Licensee agrees to assume all risks associated with Licensee's entry and presence on and within the Association ROW Landscape Areas. However, to the extent City or any of its agents cause damage to any portion of Association ROW Landscape Areas, or the Licensee Improvements made therein, City shall be responsible to make any necessary repairs and restore the Association ROW Landscape Areas to their prior condition. If City fails to repair and restore the Licensee Improvements, after providing thirty (30) days' written notice to City of such failure, Licensee may perform such maintenance and restoration of the Association ROW Landscape Areas and City shall be responsible to reimburse Licensee for the costs thereof, plus a ten percent (10%) administrative fee.
4. INDEMNIFICATION.
Licensee shall indemnify, defend, and hold harmless the City of Menifee and its elected city council, appointed boards, commissions, committees, officials, employees, volunteers, contractors, consultants, and agents (herein, collectively, the "Indemnitees") from and against any and all claims, liabilities, losses, fines, penalties, and expenses, including without limitation litigation expenses and attorney's fees, arising out of either (i) approval of this Agreement or actions related to this Agreement, including without limitation any judicial or administrative proceeding initiated or maintained by any Person challenging the validity or enforceability of this Agreement, any finding or determination made and/or any other action taken by any of the Indemnitees in conjunction with such approval, including without limitation any action taken pursuant to the California Environmental Quality Act ("CEQA"), or (ii) the acts, omissions, or operations of the Licensee and the directors, officers, members, partners, employees, agents, contractors, and subcontractors of each person or entity comprising or acting on behalf of the Licensee with respect to the use, planning, design, construction, application process, utility services, and maintenance of the Association ROW Landscape Areas. City shall notify Licensee of any claim, lawsuit, or other judicial or administrative proceeding (herein, an SMRH:4836-5297-2730.3 -4-
"Action" within the scope of this indemnity obligation and request that Licensee defend such Action with legal counsel reasonably satisfactory to City. If Licensee fails to so defend the Action, City shall have the right but not the obligation to do so with counsel of City's own choosing, with no right of approval by Licensee and, if City does, Licensee shall promptly pay City's reasonable costs thereof, with payments made at least on a monthly basis. Notwithstanding the foregoing, the indemnity obligation under clause (i) of the first sentence of this Section 4 shall not apply to the extent the claim arises out of the willful misconduct or the sole active negligence of City.
5. INSURANCE
Licensee, at Licensee's sole expense, shall obtain and keep in force during the Term the following insurance coverages, with commercially acceptable deductibles: (1) a Commercial General Liability policy insuring against all liability of the Licensee arising out of or in connection with this Agreement, which shall have a per occurrence limit of at least Two Million Dollars ($2,000,000) and an aggregate limit of at least Five Million Dollars ($5,000,000), shall name the Indemnitees as additional insureds, and shall be primary and non-contributing with any other insurance available to City; (2) Workers' Compensation insurance, including Employer's Liability coverage, in compliance with statutory requirements, and a Waiver of Subrogation in favor of City; and (3) Automobile Liability insurance covering all owned, hired, and non-owned automobiles, which shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars ($2,000,000), shall name the Indemnitees as additional insureds, and shall be primary and non-contributing with any other such insurance available to City. All general liability insurance and property damage insurance shall insure performance by Licensee of the indemnity, defense, protection and hold harmless provisions in this Agreement. The policy shall be written on an occurrence basis and shall include, at a minimum, bodily injury, property damage, personal injury and contractual liability.
The limits of insurance liability shall not limit Licensee's indemnification, defense, protection and/or hold harmless obligations under this Agreement. Each insurance policy required by this Agreement shall be evidenced by a certificate of insurance and Additional Insured Endorsement. If the Licensee fails to procure or cause to be procured and maintained the required insurance, City may, but shall not be required to, procure and maintain such insurance, but at the expense of Licensee. Insurance required by this Agreement shall be placed with and issued by companies rated A-; VII or better in "Best's Key Rating Guide." Concurrent with or prior to the commencement of the Initial Term, Licensee shall deliver to City certificate(s) of insurance evidencing the existence and amounts of such insurance. No policy shall be cancelled or coverage reduced prior to the end of the Term.
6. NO CITY LIABILITY
City shall not be liable for, and Licensee waives, all claims against City and its elected city council, appointed boards, commissions, committees, officials, employees, volunteers, contractors, consultants, and agents for loss or damage while using the SMRH:4836-5297-2730.3 -5-
Association ROW Landscape Areas or the property of any person claiming by, through or under Licensee, as a consequence of or in connection with this Agreement regardless of the cause including, without limitation, any right to seek, claim or obtain damages, punitive damages or consequential damages, including, without limitation, any claim for lost profits.
7. NOTICES.
All notices which shall or may be given under this Agreement shall be in writing and delivered personally or transmitted: (i) through the United States mail, by registered or certified mail, postage prepaid; or (il) with prepaid reputable overnight delivery service that provides a receipt with the time and date of delivery, the Parties at the following addresses:
City: City of Menifee
Attention: Director of Public Works/City Engineer
29844 Haun Road
Menifee, CA 92586
With Copy to: Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attention: City Attorney, City of Menifee
Licensee: Hidden Hill Homeowners Association
c/o Prime Association Services
27290 Madison Avenue, Suite 300
Temecula, CA 92590
Attn: Shelie Xanthos
With Copy to: KB HOME
36310 Inland Valley Drive
Wildomar, CA 92595
Attn: Hidden Hills Project Manager
Notices shall be deemed given upon receipt with personal delivery, three (3) days after deposit in the mail, or the next day with overnight delivery. Either Party may occasionally designate any other address for this purpose by written notice to the other Party in the manner set forth above.
8 TERMINATION.
8.1 Termination for Cause. In addition to the termination rights set forth in Section 2 material covenant or term by the other Party, which default is not cured within thirty SMRH:4836-5297-2730.3 -6-
(30) days after receipt of written notice of default or, if such default is not curable within thirty (30) days, if the defaulting Party fails to commence such cure within thirty (30) days or fails to thereafter diligently prosecute such cure to completion. Upon the expiration or earlier termination of this Agreement, Licensee shall have no further obligations under this Agreement, including without limitation, Licensee shall have no further obligation to maintain the Association ROW Landscape Areas or to incur any costs, including but not limited to water and electrical costs associated with the Association ROW Landscape Areas; provided, however, that Licensee's indemnification obligations hereunder shall survive any such expiration or earlier termination of this Agreement.
8.2 Removal of Licensee Improvements. At City's election, City may require Licensee, in a writing delivered to Licensee prior to the termination of this Agreement, to remove all of the Licensee Improvements from the Association ROW Landscape Areas. In such event, all such Licensee Improvements shall be removed within ninety (90) days after the termination of this Agreement.
9. MISCELLANEOUS PROVISIONS.
9.1 Assignment. Licensee shall not assign, sell, or transfer its interest under this Agreement without the express prior written approval and consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted assignment, sale, or transfer in violation of this Section shall be void. Transferring the rights and obligations of Licensee to a parent, subsidiary, or other affiliate of Licensee, or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of Licensee's stock or assets, shall not be deemed an assignment. Licensee shall give to City written notice of any such transfer within thirty (30) days thereafter.
If any proposed transferee will have a financial strength or creditworthiness after the proposed transfer of at least equal to that of Licensee prior to the transfer, it shall not be deemed reasonable for City to withhold its consent to the proposed transfer unless the proposed transferee has a record of nonperformance under similar agreements which is unacceptable to City under a reasonable standard of evaluation. Any transfer, regardless of whether City's prior consent is required, shall not be effective until such time as Licensee and the proposed transferee have entered into an assignment and assumption in a form acceptable to the City Attorney in his or her reasonable discretion.
9.2 No Mechanics Liens. Licensee shall not permit any mechanics or other liens to be filed against the Association ROW Landscape Areas as a result of or in connection with the rights granted under this Agreement.
9.3 Entire Agreement. This Agreement contains the entire understanding between the Parties regarding the subject herein. There are no representations, agreements or understandings (whether oral or written) between or among the Parties relating to the subject of this Agreement, which are not expressed herein.
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9.4 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by both Parties.
9.5 Severability. If any one or more Provisions of this Agreement shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such Provisions shall be deemed severable from the remaining Provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.
9.5 Applicable Law; Venue. This Agreement shall be governed and construed by and under the Laws of the State of California and the City of Menifee Municipal Code, as amended from time-to-time, excluding any choice of law provisions or conflict of law principals which would require reference to the laws of any other jurisdictions, but may be subject to superseding federal Law. In the event that suit is brought by a Party, the Parties agree that trial of such action shall be vested exclusively in the State Court of California, County of Riverside.
9.6 No Third Party Rights. Nothing in this Agreement shall be deemed or otherwise construed as granting any rights, benefits or interests to any individual, entity or body who / that is not a party to this Agreement.
9.7 Exhibits. All exhibits referred to in this Agreement and any addenda, attachments, and schedules which may, occasionally, be referred to in any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement as though set forth herein. All requirements or Provisions contained in the exhibits are material terms of this Agreement and enforceable.
9.8 Successors and Assigns. This Agreement is binding upon the successors and assigns of the parties subject to the requirements of Section 9.1, infra.
9.9 Authority to Execute. Each individual executing this Agreement on behalf of a Party warrants that: (i) such Party is duly organized and existing, (ii) the signer duly may execute and deliver this Agreement on behalf of the Party, (iii) by so executing this Agreement, such Party is formally bound to this Agreement, (iv) the Party's entry into this Agreement violates no Provision of any other agreement to which said Party is bound, and (v) there is no litigation or legal proceeding that would prevent said Party from signing this Agreement or performing its obligations hereunder.
9.10 Administration. This Agreement shall be administered and executed on behalf of City by the City Manager. The City Manager shall have the authority to issue interpretations, waive terms and conditions, enter into implementing agreements and amendments of this Agreement on behalf of City provided that such actions do not substantially change the purposes and intent of this Agreement, materially increase the risk of liability, or impair the rights or remedies, of City provided herein. All other waivers or amendments shall require the formal consent of the City Council of City.
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9.11 Captions. The captions of the Sections in this Agreement are for convenience only, and are not intended to be any part of the body of this Agreement, nor are they intended to be referred to in construing this Agreement.
9.11 Counterparts. This Agreement may be executed in one or more counterparts, and all the counterparts shall constitute but the same agreement, notwithstanding that all parties are not signatories to the same or original counterpart.
9.12 Advice of Counsel; Interpretation. Each Party acknowledges that it has had the benefit of advice of competent legal counsel regarding its decision to enter this Agreement. This Agreement shall be interpreted to give effect to each Provision hereof, in accordance with the fair meaning thereof, and shall be construed as prepared by both Parties.
9.13 No Waiver. The failure of any Party to enforce against the other a Provision of this Agreement shall not constitute a waiver of that Party's right to enforce such Provision at a later time.
9.14 Disputes. The Parties agree to make a diligent, good-faith attempt to resolve any claim, controversy or dispute arising out of this Agreement ("Disputes"). An authorized representative shall be selected by each Party to attempt to resolve Disputes by phone or in person. In any action seeking the enforcement or interpretation of any of the terms or provisions of this Agreement, the prevailing Party in that action shall be awarded, in addition to allowable damages, injunctive or other relief, its reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and expert witness fees.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers and representatives as of the Effective Date written at the beginning of this Agreement.
"City"
CITY OF MENIFEE, a California municipal
corporation
Dated: , 2023 By:
Print Name: Bill Zimmerman, Mayor
APPROVED AS TO FORM ATTEST:
RUTAN & TUCKER, LLP
By:
Sarah Manwaring, City Clerk
Attorneys for the City of
Menifee
"Licensee"
Hidden Hills Homeowners Association, a
California nonprofit mutual benefit
Dated: Nov 14, 2023, 2023 corporation
Mark Miller
By: Mark Miller (Nov 14. 2023 14:22 PSTI
Print
Name: Mark Miller
Its: Board Member
Dated: Nov 14, 2023, Sonia Rodriguez
, 2023 By: Sonia Rodriguez (Nov 1F 2023 15:32 PST
Print
Name: Sonia Rodriguez
Its: Secretary
SMRH 4836-5297-2730.3 -10-
EXHIBIT "A"
DEPICTION OF ASSOCIATION ROW LANDSCAPE AREAS
[Attached hereto.]
All items, and location of items, shown on illustration are shown for informational purposes only and should not be relied upon for content. precise design or dimension. The actual conditions will control.
Exhibit "A"
SMRH:4836-5297-2730.3
HIDDEN HILLS - CYPRESS
30142-0 - YEOMAN PLACE ENTRY
13 4209
21395y
54 216 EVANS ROAD
- EATON LANE YEOMAN PLACE
53 4
14 208
52 HOA LANDSCAPE
MAINTENANCE AREA
NORTH 1" = 50'-0"
HIDDEN HILLS - PEPPERTREE
30142-2 - QUILT WAY ENTRY
22000
143 /200
142 141
QUILT WAY
EATON LANE
9100
EVANS ROAD
211
1495
210
HOA LANDSCAPE
MAINTENANCE AREA
NORTH 1" = 50'-0"
HIDDEN HILLS - PEPPERTREE & CYPRESS
30142-0 & - 2 - BETH AVENUE ENTRY
201\
MURRIETA ROAD RED OAK STREET
BETH AVENUE
4:7 15051504
1503 4:1
1502
203 15011500-
205
HOA LANDSCAPE
MAINTENANCE AREA
NORTH 1" = 50'-0"
License Agreement - Hidden Hills Streetscape -
Final dpb 10032023
Final Audit Report 2023-11-14
Created: 2023-11-14
By: shelie xanthos ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAm2XmG_015_HqaB7bk2UMiJpgJOCTyXdD "License Agreement - Hidden Hills Streetscape - Final dpb 1003 2023" History
• Document created by shelie xanthos ([email protected]) 2023-11-14 - 9:54:23 PM GMT- IP address: 40.86.166.130
E, Document emailed to [email protected] for signature 2023-11-14 - 9:55:51 PM GMT
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