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RECORDING REQUESTED BY CITY OF PATTERSON:
WHEN RECORDED, MAIL TO:
City of Patterson
Attn: City Clerk
P.O. Box 667
1 Plaza
Patterson, California 95363
Recorded for the benefit of the Patterson Unified School District Pursuant to Government Code section 6103
SPACE ABOVE THIS LINE FOR
RECORDER'S USE
NONEXCLUSIVE VEHICULAR TRAFFIC EASEMENT AGREEMENT
This NONEXCLUSIVE VEHICULAR TRAFFIC EASEMENT AGREEMENT
(“Agreement”) is made and entered into between the City of Patterson (“Grantor”), a California municipal corporation and the Patterson Joint Unified School District (“Grantee”), a California school district. Grantor and Grantee may each be referred to as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
RECITALS
This Agreement is made with respect to the following facts:
A. Grantor is the owner of the real property in the City of Patterson, California (“City”) known as 9th Street, a public right-of-way as further described in Exhibit B attached hereto (the “Grantor Property”).
B. Grantee is the owner of real property adjacent to and in the vicinity of the Grantor Property known as Patterson High School located at 200 North 7th Street in the City as further described in Exhibit C attached hereto (the “Grantee Property”).
C. A portion of the Grantor Property, located between the intersections of Ward Avenue and North 9th Street and North 9th Street and West Las Palmas Avenue as further described in Exhibit D, borders and provides access to the Grantee Property (the “Easement Area”).
D. The Parties acknowledge that Patterson High School students regularly walk in the Easement Area during school hours.
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E. To protect the health, safety, and welfare of the Grantee’s students, Grantee desires to obtain an easement from Grantor which permits Grantee to close the Easement Area to vehicular traffic during certain school hours.
F. The Parties acknowledge that the easement granted pursuant to this Agreement shall not restrict public pedestrian access to the sidewalk adjacent to and abutting the Easement Area, even when the Easement Area is closed to vehicular traffic.
G. The Parties also acknowledge that local traffic shall not be obstructed during peak student drop off and pick up time periods to avoid unusually heavy traffic patterns.
H. Grantor is willing to grant to Grantee this easement on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, subject to the conditions and covenants set forth below, Grantor hereby grants, and the Parties agree to, the following:
1. Recitals. The recitals set forth above are incorporated herein by this reference and made part of this Agreement. In the event of any inconsistencies between the recitals and Sections 1 through 12 of this Agreement, Sections 1 through 12 of this Agreement shall prevail.
2. Grant of Easement. Grantor hereby grants and conveys to Grantee a nonexclusive, appurtenant easement (the “Easement”) over and along the Easement Area as further described in Exhibit D, solely for closing the Easement Area to vehicular traffic during “School Hours,” as defined below, subject to the following terms and conditions. (a) Road Closure During School Hours. Grantee shall have the right to close the Easement Area to vehicular traffic during each school day, including summer school, is held at the Grantee Property, from ten (10) minutes following the start of the first class period of each school day until ten (10) minutes before the final bell of each school day (“School Hours”). The 10-minute time buffers may change due to unforeseen traffic issues that may occur. Any changes to the time buffers will be reviewed and approved by both Parties. The closure schedule shall be adjusted accordingly for Early Release and Minimum Day schedules. Grantee shall provide Grantor with all schedules regarding School Hours at least two (2) weeks prior to the start of each academic year and/or summer school session. Grantee shall also provide Grantor with any changes or amendments to School Hours at least two (2) weeks prior to Grantee’s implementation of such changes or amendments. Grantee’s nonexclusive right to use the Easement is limited to closing the Easement Area to vehicular traffic during School Hours.
Grantee agrees that the Easement can only be used if school is physically held in-person at the Grantee Property.
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(b) Grantee’s Right to Construct, Install, and Use Easement Facilities. Subject to the following conditions, Grantee shall have the right at its sole expense to construct and install two (2) gates, with one (1) at each entrance of the Easement Area as further described in Exhibit E (the “Gates”) in addition to any other facilities reasonably necessary to close the Easement Area to vehicular traffic during School Hours (“Easement Facilities”). (i) Grantee shall not construct or install any Easement Facilities until Grantor provides its written approval of Grantee’s Easement Facilities construction plan (“Construction Plan”), which approval shall not be unreasonably withheld. (ii) Grantee’s construction contractor shall be required to procure an encroachment permit from the Grantor for all work within the Grantor’s right-of-way. (iii) Each and every Construction Plan shall be submitted by Grantee to Grantor in writing and must contain detailed specifications regarding each design feature and the materials used, in addition to mitigation measures designed to mitigate damage to the Easement Area and the Grantor Property.
(iv) Before Grantee is permitted to construct, install, and use any Easement Facilities, Grantee shall ensure that Grantor and all governmental emergency service providers within the City, including the City’s Fire and Police Departments, the Stanislaus County (the “County”) Fire and Police Departments, and all governmental emergency medical services providers within the City, have access to each of the Gates. (v) The Parties acknowledge that Grantee’s right to use the Easement is nonexclusive, and that Grantor’s rights of ingress and egress shall be unaffected by this Agreement. Grantor may at any time access the Easement Area for any public purpose relating to but not limited to Grantor’s services, duties, responsibilities, and public interests as a municipality.
(c) Grantee’s Duty to Install and Maintain Mitigation Measures.
Notwithstanding the terms and conditions set forth in Sections 2(a) and 2(b) of this Agreement, Grantee shall, at its own expense, construct, install, and maintain the mitigation measures as further described in Exhibit E (“Mitigation Measures”).
3. Maintenance of the Easement Area. Except as provided elsewhere in this Agreement, Grantor shall be responsible for maintenance of the Easement Area and the Grantor Property.
4. Use and Maintenance of the Easement Facilities. Grantee shall be responsible for the maintenance, operation and use of the Easement Facilities, including opening and closing the Gates.
5. Recordation. Grantor and Grantee agree that this Agreement shall be recorded in the Official Records of Stanislaus County.
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6. Term. This Agreement shall become effective on the date of its recordation (“Effective Date”) and shall continue in full force and effect from the Effective Date for a term of fifteen (15) years (“Initial Term”). Following the expiration of the Initial Term, this Agreement shall automatically renew for successive five (5) year terms (“Renewal Terms”), unless terminated as provided in this Agreement.
7. Indemnity. It is mutually understood and agreed, relative to the reciprocal indemnification of Grantee and Grantor:
(a) Grantee agrees to indemnify, defend, and hold harmless Grantor, its officers, officials, employees, and volunteers (collectively, “Grantor’s Agents”) from and against any and all liabilities, claims, damages, costs, expenses, awards, fines, judgments, and expenses of litigation (including, without limitation, costs, attorney fees, expert witness fees, and prevailing party fees and costs) of every nature arising out of or resulting from the performance of this Agreement, caused in whole or in part by any negligence or willful act or omission of Grantee, its officers, officials, employees, and volunteers (collectively “Grantee’s Agents”). This section shall survive the termination of this Agreement.
(b) Grantor agrees to indemnify, defend, and hold harmless Grantee and Grantee’s Agents from and against any and all liabilities, claims, damages, costs, expenses, awards, fines, judgments, and expenses of litigation (including, without limitation, costs, attorney fees, expert witness fees, and prevailing party fees and costs) of every nature arising out of or resulting from the performance of this Agreement, caused in whole or in part by any negligence or willful act or omission of Grantor or Grantor’s Agents. This section shall survive the termination of this Agreement.
(c) The Parties acknowledge and agree that it is not the intent of the Agreement to create a duty of care by Grantor or Grantee that they would not otherwise owe in the absence of this Agreement. This Agreement does not create an affirmative duty of care (including, without limitation, a duty to protect, a duty to deter, or a duty to intervene) by Grantor or Grantee. The Parties further acknowledge and agree that by entering into this Agreement neither Grantor nor Grantee intends to waive any immunities to which they would be entitled in the absence of the Agreement.
(d) It is the intention of the Parties that, where fault is determined to have been contributory, principles of comparative fault will be followed, and each Party shall bear the proportionate cost of any damage attributable to the fault of that Party, its officers, directors, agents, employees, and volunteers.
8. Tort Liability. Government Code Section 895.2 imposes certain tort liability jointly upon public agencies solely by reason of such public agencies being parties to an agreement as defined in Government Code Section 895. Therefore, the Parties hereto, as between themselves, pursuant to the authorization contained in Government Code Sections 895.4 and 895.6, each assumes the full liability imposed upon it or any of its officers, agents, {CW126338.1}
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representatives or employees by law for injury caused by a negligent or wrongful act or omission occurring in the performance of this Agreement, to the same extent that such liability would be imposed in the absence of Government Code Section 895.2. To achieve this purpose, each Party indemnifies and holds harmless the other Party for any loss, cost, or expense, including reasonable attorneys’ fees that may be imposed upon or incurred by such other Party solely by virtue of Government Code Section 895.2.
9. Compliance; Safety. Grantee shall comply in all material respects, at its sole cost and expense, with all applicable governmental statutes, codes, ordinance, orders, permits, directives, guidelines, rules and regulations when conducting any and all activities related to this Agreement and the easements granted hereunder.
10. Termination. Grantee shall have the right to terminate this Agreement for any reason by providing ninety (90) days written notice to Grantor. In the event Grantee materially defaults on any of its obligations hereunder, Grantor may deliver to Grantee a written notice of default, stating with specificity the nature of Grantee’s default relative to its obligations under this Agreement. If Grantee does not cure the default within thirty (30) days of its receipt of the notice of default or if Grantee determines the default cannot be cured within thirty (30) days of its receipt of the notice of default and Grantee does not commence actions and show diligent progress to cure the default, then Grantor shall have the right to terminate this Agreement by providing thirty (30) days written notice to Grantee. In the event of termination under this Section 10, each Party agrees to execute and record such documents and to undertake such other actions as may be necessary to effectuate such termination. Prior to the termination of this Agreement, Grantee shall, at its sole expense, remove the Gates and related Easement Facilities from the Easement Area and make any repairs to the Easement Area caused by the construction, operation, or removal of the Gates and all Easement Facilities. Upon termination of this Agreement, all rights and obligations of the Parties hereunder pertaining to the Easement shall also terminate.
11. Notices. Any notice or communication required hereunder between the Grantor and Grantee must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS, or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days’ written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the Parties at their addresses set forth below:
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If to the Grantor: City of Patterson
1 Plaza
P.O. Box 667
Patterson, CA 95363
Attn: Ken Irwin
With courtesy copy to: White Brenner LLP
1414 K Street, 3rd Floor
Sacramento, CA 95817
Attn: Nubia I. Goldstein
If to Grantee: Patterson Joint Unified School District
510 Keystone Boulevard
Patterson, CA 95363
Attn: Dr. Reyes Gauna, Ed. D.
With courtesy copy to: Atkinson, Andelson, Loya, Ruud & Romo 20 Pacifica, Suite 1100
Irvine, CA 92618
Attn: Eddy R. Beltran
12. General Provisions.
(a) Modification. All modifications of this Agreement must be in writing and signed by each Party or an authorized representative of each Party. (b) Integration. This Agreement constitutes the entire understanding of the Parties. This Agreement supersedes any and all prior writings or oral discussions concerning the same. No Party shall be liable hereunder for any representations made, express or implied, which are not specifically set forth herein.
(c) Governing Law. The validity, interpretation and performance of this Agreement shall be construed pursuant to the laws of the State of California. (d) Venue. Venue for all legal proceedings shall be in Superior Court for the County of Stanislaus.
(e) Waiver. A waiver by any Party of any breach of any term, covenant or condition herein contained or a waiver of any right or remedy of such Party available hereunder at law or in equity shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained or of any continued or subsequent right to the same right or remedy. No Party shall be deemed to have made any such waiver unless it is in writing and signed by the Party so waiving.
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(f) Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. (g) Counterparts. This Agreement may be executed simultaneously or in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
(h) Other Documents. Parties agree that they shall cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents as may be necessary and convenient to the fulfill the purposes and intentions of this Agreement.
(i) Time is of the Essence. Time is of the essence in this Agreement in each covenant and term and condition herein.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Grantor and Grantee as of the Effective Date.
GRANTOR: GRANTEE:
City of Patterson, a California municipal
corporation
By:
Ken Irwin, City Manager
Date: __________________________
Patterson Joint Unified School District, a
California school district
By:
Date: __________________________
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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 )
) SS. COUNTY OF ___________ )
On _____________ before me, _____________________________________, a notary public, personally appeared _______________________ who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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.
_________________________________(Seal)
Signature