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TO: BOARD OF SUPERVISORS, as the Governing Body of the Contra Costa County Flood
Control and Water Conservation District
FROM: J. MICHAEL WALFORD, CHIEF ENGINEER
DATE: SEPTEMBER 19, 1995
SUBJECT: LICENSE AGREEMENT FOR PINE CREEK RECREATIONAL TRAIL - CONCORD AREA
Project No.: 7520-6138621 Task: ACQ Account: 3540
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVELicense Agreement with the City of Concord and AUTHORIZE Board Chair to execute
said License on behalf of District.
II. Financial Impact:
None.
Continued on Attachment: X SIGNATUR , '
_RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON 1 11,5 APPROVED AS RECOMMENDED OTHER_
VOyE OF SUPERVISORS
UNANIMOUS(ABSENT 1
AYES: NOES:
ABSENT: ABSTAIN:
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Orig. Div: Public Works(R/P)
Contact: Nancy Wenninger (313-2227)
cc: County Administrator I hereby certify that this is a true and correct copy Ot
P.W.Accounting an action taken and entered on the minutes of the
Board of Supe" re on the date shown.
ATTESTED: 9
PHIL BATC14ELOR,Clerk of the Board
of Supervisors and County Administrator
v
OF
Deputy
License Agreement/Pine Creek Trail
September 19, 1995
Page Two
III. Reason for Recommendations and Background:
Neighbors of San Simeon Drive, St. Joseph Drive and Minert Road in the City of Concord
petitioned their city council to obtain public access for passive recreational purposes to a portion
of the Pine Creek Channel. In response, the City is requesting a license from the District to
maintain and use a portion of the District's graded earth service road between San Miguel Road
and Lane Drive as a trail for pedestrians and bicyclists. The City has agreed to accept responsi-
bility for liability, vegetation maintenance and litter control within the trail area. Local residents
will also be involved in the cleanup and oversight of the proposed trail.
IV. Consequences of Negative Action:
The District will not be protected from unauthorized use of its property and will continue to bear
the entire expense and responsibility for maintenance and liability.
License Agreement
(Not to be Recorded)
PINE CREEK RECREATIONAL TRAIL
THIS AGREEMENT is made and entered into this day of , 19_, by and
between the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVA-
TION DISTRICT, a political subdivision of the State of California, hereinafter called
"Licensor," and the CITY OF CONCORD, a municipal corporation, hereinafter called "City."
WITNESSETH:
THAT Licensor, for a good and valuable consideration and in further consideration of the
faithful performance and observance by City of all of the terms and conditions herein
contained, does hereby grant to City a license for the construction, reconstruction,
maintenance, removal, and use of a path for the passage of pedestrians and bicycles only,
together with the necessary appurtenances thereto, hereinafter referred to as "the Trail."
THE LICENSE above mentioned is granted by Licensor and accepted by City upon the
following terms and conditions and City does hereby agree with Licensor as follows:
1. Definitions:
As used in this License, "the Property" shall refer to that portion of Pine Creek
located between San Miguel Road and Lane Drive in the City of Concord, as
described in Exhibit "A" and shown on the map attached hereto as Exhibit "B."
As used in this License, "the Trail" shall refer to the graded earth service road
which lies within the Property on the westerly side of the creek as shown in Exhibit
"B" attached, which may include, subject to Licensor's approval and inspection as
provided in Section 10, an unpaved or paved path, shoulder, signs, drainage
facilities, barrier fencing or walls, points of entry and landscaping.
As used in this License, "the Maintenance Corridor" shall refer to the corridor within
the Property in which the Trail is located and which is bounded on the west by the
property line and on the east by the centerline of the Pine Creek bypass channel.
"The Maintenance Corridor" shall also refer to the Licensor's driveway at San
Simeon Drive and all other connecting pathways extending between the Trail and
the City's right of way at each existing and future point of entry.
2. Title of Licensor:
City hereby acknowledges the title of Licensor in and to the Property and agrees
never to assail or to resist said title. City agrees that it has not acquired nor will it
hereafter acquire any rights or interest in the Property, nor does City have nor will
it obtain any right or claim to the use of the Property beyond those specifically
granted in this License.
3. Term:
Unless suspended or partially revoked as hereinafter set forth, this License to
construct, operate and maintain a Trail to be used by the" general public shall
terminate twenty-five (25) years from the date hereof. By mutual written consent of
the parties hereto, it may be extended for an additional twenty-five(25) year term.
4. Primary Use of Property:
The Property consists of a corridor which is used for flood control purposes.
Underground utility facilities may already be in place and it is anticipated that, in the
future, additional utility facilities may be constructed or installed on the Property.
Any and all rights granted or implied by this License shall be subordinated to the
Page 1 of 7
uses just mentioned, as well as to all other uses of the Property made or permitted
by Licensor.
City acknowledges that the use just described constitutes the primary use of the
Property and that City's use of the Trail pursuant to this License is secondary and
subordinate to said primary uses. City shall not, at any time, use or permit the
public to use the Trail in any manner that will materially interfere with or impair said
primary use of the Property. All rights granted to City hereunder are subject to all
existing and future rights, rights of way, reservations, franchises, and licenses in the
Property, regardless of who holds the same, including Licensor's right to use the
Trail for emergency or maintenance vehicle access or any other purpose.
5. Suspension or Limitation of Use:
Licensor and its permittees shall have the right to suspend or to limit the use of the
Trail by City and the general public for a reasonable amount of time for protection
of public safety, or for the construction, installation, operation, maintenance or
repair of other facilities on the Property. Should such suspension or limitation be
necessary, Licensor shall provide City fifteen (15) days prior notice in writing,
except in cases of emergency maintenance or repairs.
Licensor shall not be held responsible or liable for unavoidable damage or removal
of any fences, gates, asphalt or concrete paving, landscaping, or other facilities
which may be placed, installed, repaired, or constructed by City as part of Trail
when Licensor finds it necessary to accomplish work for the maintenance,
construction, repair, reconstruction or alteration of Licensor property. However,
Licensor will exercise reasonable care to minimize adverse impacts of such work
upon City's recreational facilities.
6. Revocation:
In the event, in the sole discretion of Licensor, the primary uses of the Property by
Licensor or Licensor's permittees reasonably require some permanent use of a
portion or portions of the Property which, by nature thereof, precludes City's use
thereof, Licensor may, upon six-months prior notice, revoke this License as to the
area Licensor deems necessary for such permanent primary use. Licensor shall
supply City with a map or drawing identifying the area(s) as to which this License
is so revoked.
7. Maintenance and Litter:
City shall maintain the Property in a clean, safe, and presentable condition, free
from waste, litter, and other items resulting from public access to the Property and
left by parties other than Licensor and its permittees. As used in this section, the
term "litter" shall include, but not be limited to, paper, garbage, refuse, dead
animals, trimmings, and other items that detract from the neat and tidy appearance
of the Property. If City fails so to keep the Property then, after thirty (30) days prior
written notice specifying the needed work, Licensor may perform or hire the
necessary work at the reasonable expense of City, which expense City agrees to
pay to Licensor upon demand. City shall not be responsible for such maintenance
outside of the Maintenance Corridor as defined in Section 1.
City agrees to keep the Trail free from weeds and other vegetation to comply with
local fire district standards. Licensor agrees to perform weed abatement on the
remaining portion of the Property according to local fire district standards.
8. Indemnification:
City shall indemnify, save, protect, defend, and hold harmless Licensor, Contra
Costa County, the State of California, and the United States, their boards, officers,
agents and employees from and against any and all loss, liability, expense, claims,
Page 2 of 7
costs, suits, and damages, including attorney's fees, arising out of or connected
with City's operations and performance, and the presence or public use of the Trail
or Property.
9. Insurance Requirements:
City shall take out and maintain during the life of this License all the insurance
required by this section and shall submit certificates for review and approval by
Licensor. No construction on or use of the Trail shall commence until such
insurance has been approved by Licensor. The certificates shall be on forms
provided by Licensor or the insurance carrier. Acceptance of the certificates shall
not relieve City of any of the insurance requirements, nor decrease the liability of
City. Licensor reserves the right to require City to provide insurance policies for
review by Licensor.
(a) Worker's Compensation Insurance. City shall take out and maintain
Worker's Compensation and Employer's Liability Insurance for all of its
employees on the Trail. City shall require any subcontractor to provide it
with evidence of Worker's Compensation and Employer's Liability Insurance,
all in strict compliance with California State laws.
(b) Public Liability Insurance. City shall take out and maintain Comprehensive
Automobile and General Liability Insurance that provides protection from
claims which may arise from operations or performance under this License.
City shall require any subcontractor to provide evidence of the same liability
insurance coverages. The amounts of insurance shall be not less than the
following: Single Limit Coverage applying to Bodily and Personal Injury
Liability and property Damage: $1,000,000 per occurrence.
(c) Endorsements. The following endorsements must be indicated on the
certificate:
(1) The United States, the State of California, Contra Costa County, and
Contra Costa County Flood Control and Water Conservation District,
their boards, officers, agents and employees are additional insureds
under the policy as to the work and operations being performed under
this License;
(2) The coverage is primary and no other insurance carried by Licensor
will be called upon to contribute to a loss under this coverage;
(3) The policy covers blanket contractual Liability;
(4) The policy limits of liability are provided on an occurrence basis;
(5) The policy covers broad form property damage liability;
(6) The policy covers personal injury as well as bodily injury liability;
(7) The policy covers explosion, collapse and underground hazards;
(8) The policy covers products and completed operations;
(9) The policy covers use of non-owned automobiles;
(10) The coverage shall not be canceled nor materially altered unless
thirty (30) days written notice is given to Licensor.
(d) Failure of Coverage. Failure, inability, or refusal of City to take out and
maintain during the entire term of this License any and all of the insurance
Page 3 of 7
as aforesaid shall at the option of Licensor constitute a breach of this
License and justify immediate termination of the same.
(e) Self Insurance. City has the right and option to self-insure the requirements
under this Section 9 upon written notice to Licensor that City assumes the
obligations in the place and stead of any insurance carrier, any reference to
failure of coverage notwithstanding. In the event that City elects to self-
insure, City shall provide to Licensor a certificate or other evidence of self-
insurance acceptable to Licensor.
10. Approval and Inspection of Work:
City shall not perform any construction, reconstruction, remodeling, repair, removal,
or other work within the Trail without first obtaining Licensor's approval in writing of
said work. In seeking Licensor's approval, City shall furnish to Licensor a complete
description and sketch of the work proposed to be performed. In performing work
approved by Licensor, City shall comply with all terms, conditions, and requirements
imposed by Licensor and not deviate in any material manner from the description
and sketch approved by Licensor, without first obtaining additional approval in
writing from Licensor.
City shall design, construct and maintain all facilities to provide continuous,
unobstructed vehicle access which is twelve (12) feet wide and fourteen (14) feet
high. Licensor has disclosed to City that the primary use of the Trail area will
include vehicles with weights up to sixteen-ton axle loads. City agrees to design
all pavement and trail surfaces to accommodate such use, and shall assume all
responsibility for the repair and maintenance of any damage that may be caused
by the competent and responsible use of such vehicles.
City shall not be required to obtain Licensor's prior written approval for the
performance of routine maintenance or emergency repairs. As used in this section,
the term "routine maintenance" refers to work that does not alter the original
condition of improvements previously approved in writing by Licensor, which work
is required to prevent deterioration of said improvements. As used in this section,
the term "emergency repairs" refers to repairs that do not alter the original condition
of improvements previously approved in writing by Licensor, which repairs are
necessary to protect the safety of the public and others. Except in the case of
emergency or routine maintenance, City shall consult Licensor at least seven (7)
days before any major maintenance operations are performed by City. Work shall
be done in such a manner that Licensor shall at all times be able to use and gain
access to its facilities.
All work performed by City under this section shall be subject to inspection by
Licensor.
11. Assignment:
No rights of City hereunder shall be transferred or assigned unless to a successor
public agency and unless the written consent of Licensor is first secured. With that
exception, this License and each and all of the covenants herein contained shall
inure to the benefit of and be binding upon the successors and assigns of the
respective parties hereto.
12. Abandonment by City:
If City shall, for a period of at least 120 consecutive days, fail to use or maintain the
Trail or any portion thereof, then all rights of City in and to such portions not used
or maintained shall immediately terminate, at Licensor's sole discretion.
Page 4 of 7
13. Restricted Use:
The rights granted hereunder are for pedestrian and bicycle use only. Equestrian
use shall not be permitted on the Trail. No type of motor-driven vehicle shall be
permitted on the Trail, except those of City, Licensor, or Licensor's permittees being
used for construction, maintenance, repair, patrol, or public safety purposes. At all
existing and future points of entry to the Trail, City shall install such barricades as
are necessary to prevent unauthorized access by motor-driven vehicles and shall
post signs that such vehicles are prohibited. Said barricade and signs at Licensor's
driveway at San Simeon Drive shall be installed at the entrance to the driveway
from the City's right of way. City's barricades shall accept Licensor's locks.
14. Patrol:
City shall provide such patrol service as is necessary to prevent unauthorized use
of the Trail and Property and to protect the safety of the users of the Trail. Its
failure to do so shall constitute a breach of this License and justify immediate
termination of the same.
City agrees to devote the same standards and levels of public safety patrol to the
Trail and Property as it is able to and does devote to its other recreational facilities.
During periods of runoff, City shall patrol Trail and Property and determine whether
to close the Trail to public use and secure all points of entry to the Trail. City shall
have sole responsibility for this determination.
15. Damage to Property:
It is understood and agreed by and between the parties hereto that the Property is
subject to sliding, erosion, subsidence, and flooding, and that Licensor is under no
obligation to maintain the Property or repair any damage resulting from sliding,
erosion, subsidence, or flooding unless in the sole discretion of Licensor such
damage affects the integrity of the flood control facilities. In the event of any lesser
damage, City shall perform such maintenance or repair as City may deem
necessary for proper and safe operation of the Trail.
16. Pollution:
City, at its expense, shall comply with all applicable laws, regulations, rules, and
others, with respect to City's use of the Property, regardless of when they become
or became effective, including, without limitation, those relating to health, safety,
noise, environmental protection, waste disposal, and water and air quality, and
furnish satisfactory evidence of such compliance upon request of Licensor.
No hazardous materials shall be handled by City at any time upon the Property.
Should any discharge, leakage, spillage, emission or pollution of any type occur
upon or from the Property caused by City's employees, contractors and agents,
City, at its expense, shall be obligated to clean all the property affected thereby,
whether owned or controlled by Licensor or any third person, to the satisfaction of
Licensor(insofar as the property owned or controlled by Licensor is concerned) and
any governmental body having jurisdiction thereover.
To the extent permitted by law, City shall indemnify, save, protect, hold harmless,
and defend Contra Costa County Flood Control & Water Conservation District,
Contra Costa County, the State of California, and the United States, their boards,
officers, agents, and employees, and such holders of user rights hereinafter
collectively referred to as "Indemnitees," from and against all liability, cost, and
expense (including, without limitation, any fines, penalties, judgments, litigation
costs, and attorneys fees) incurred by Indemnitees or any of them as a result of
City's breach of this section.
City shall also hold the Indemnitees harmless from and against any and all actual
or threatened liabilities, claims, actions, causes of action, judgments, orders,
damages (including foreseeable and unforeseeable consequential damages), costs,
Page 5 of 7
expenses, fines, penalties and losses and all consultant, expert and legal fees and
expenses (including those incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work) arising directly
or indirectly out of or resulting from any hazardous substance being released by
City or pedestrian or bicycle users of the public access trail pursuant to this License
Agreement in, on or around any part of the property, or in the soil, groundwater or
soil vapor on or under the property during the term of this License. This indemnifi-
cation shall not include damages caused by the named Indemnitees or those
granted encroachment permits or rights of entry by the Indemnitees.
City shall pay all amounts due Indemnitees under this section within a reasonable
time after any such amounts become due.
17. Signs:
City shall maintain existing signs and install appropriate informational and warning
signs. City shall also install signs designating permitted Trail uses by the general
public, regulations governing such uses, and specifically prohibiting operation of
unauthorized motor vehicles.
18. Trail Improvement Maintenance:
City shall maintain at its expense all Trail improvements, including graded earth
service road, Trail pavement, culverts, gates, signs, fences, bollards, and
landscaping. City shall also maintain at its expense all improvements located within
Licensor's driveway at San Simeon Drive and all other connecting pathways
extending between the Trail and the City's right of Way at each existing and future
point of entry, including graded earth, pavement, gates, signs, fences, bollards and
landscaping.
19. Drainage:
Licensor agrees to maintain, at its expense, all longitudinal drainage and cross
culverts not part of the Trail. City agrees to maintain, at its expense, drainage
facilities necessary for Trail's operation.
20. Vandalism:
City shall, at its own expense, promptly repair all damage to Trail improvements and
to existing and future utilities caused or contributed to by users of the Trail. City
shall not be responsible for repair of such damage occurring outside of the
Maintenance Corridor as defined in Section 1.
21. Graffiti:
City shall, at its own expense, promptly clean, repaint, or remove any graffiti placed
by users of the Trail on Trail improvements and existing and future utilities. City
shall not be responsible for cleaning, repainting, or removal of graffiti occurring
outside of the Maintenance Corridor as defined in Section 1.
22. Encroachment Permits:
Licensor shall have the sole right to grant encroachment permits or rights of entry
within the Property. Notification of encroachment permits granted and plans
approved by Licensor will be forwarded to City. Licensor shall consult with City on
safety requirements for future utilities and if City has not responded within 15
working days, then it is presumed City is in concurrence.
City shall obtain permits from all other agencies as required for construction of the
Trail improvements.
Page 6 of 7
23. Modification:
This License shall be subject to modification or amendment, including the
expansion of the Trail to additional areas, only by the written, mutual consent of
both parties.
24. Entire Agreement:
It is understood that this document contains the entire agreement between the
parties hereto and all prior understandings or agreements, oral or written, of
whatsoever nature regarding the rights hereby granted are superseded by this
License and are hereby abrogated and nullified.
IN WITNESS WHEREOF, the parties hereto have executed this License, in duplicate, the
day and year first above written.
Contra Costa County Flood Control City of Concord (City)
and Water Conservation District
BY [.ti BY
Ch ir, Board of Su ervisors Mayor, City f Concord
ATTEST: ATTEST:
Phil Batchelor .
Clerk of the Board of Supervisors By
and County Administrator Deputy City Clerk
ByJJjJp
Approved as to form: Approved as to form:
Victor J. Westman By
Count Counsel /fsst-, ity Attorney
B
e
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May 31, 1995
Page 7 of 7
Pine Creek
Trail License
EXHIBIT "A"
Real property in Ranch San Miguel, Contra Costa County, California, described in the following deeds
to Contra Costa County Flood Control and Water Conservation District:
1) Parcel A and Lot 13 recorded September 25, 1986 in Volume 13145 of Official Records at page 957,
2) Parcels 1 and 2 recorded December 17, 1979 in Volume 9662 of Official Records at page 183, 3)
PARCELS ONE and TWO recorded January 28, 1985 in Volume 12160 of Official Records at page 246,
4) that parcel recorded April 18, 1980 in Volume 9820 of Official Records at page 159, and 5) that parcel
recorded September 24, 1979 in Volume 9541 of Official Records at page 243.
EXCEPTING THEREFROM: that portion lying northwesterly of the northeastern prolongation of the
southeast line of Lot 22 of Subdivision 3921 Pine Creek Glen No. 2 recorded October 17, 1977 in Book
203 of Maps at page 16.
Also EXCEPTING THEREFROM: that portion lying northeasterly of the flow line of the natural Pine
Creek channel.
This real property description has been prepared by me or under my direction, in conformance with the
Professional Land Surveyors Act.
0SAND.,�
Signature: zW
Licensed Land Surveyor
Contra Costa County Public Works Exp./Z-?/,-q6
No. 5999
Date:
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