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HomeMy WebLinkAboutMINUTES - 09101996 - C30 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 10, 1996 SUBJECT: LICENSE AGREEMENT FOR USE OF A PORTION OF TICE CREEK RIGHT OF WAY TO KAISER FOUNDATION HOSPITALS -WALNUT CREEK AREA Flood Control Permit No. 646-91 Project No.: 7505-6F8173 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION 1. Recommended Action: APPROVE License Agreement with Kaiser Foundation Hospitals and AUTHORIZE Board Chair to execute said License on behalf of the District. II. Financial Impact: All costs and liabilities will be assumed by Kaiser in exchange for continued use of Flood Control right of way. Continued on Attachment: x SIGNATURE: _RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE —APPROVE —OTHER SIGNATURE(S): ACTION OF BOARD ON September 10, 1996 APPROVED AS RECOMMENDED X OTHER_ VOTE OF SUPERVISORS X UNANIMOUS(ABSENT I AYES: NOES: ABSENT: ABSTAIN: DDL:Io g:\realprop\temp\BOa1019 t hweby ON*that this b a fn»and eo�roce Dopy or an action taken and entwW on tAe mtnutaa of-the Orig. Div: Public Works(RIP) ow of supwis n on ON data shorn. Contact: --Donna Dawkins(313-2224) - - - -- XffESMD:.';:ptPmbPr 10. 1996 --- -- cc: County Administrator a8wwVb 80WAVA Auditor-Controller(via RIP) �4► P.W.AccountingU11--A11) u Recorder(via R/P) r0 III. Reasons for Recommendations and Background: The above agreement allows Kaiser to construct, use and maintain various hospital improvements within the existing Tice Creek flood control easement. The agreement is entered into pursuant to various encroachment permits issued to Kaiser by District. IV. Consequences of Negative Action: District would not be protected from liability for various encroachments Kaiser has been permitted to place within the Tice Creek right of way. Tice Creek Kaiser Hospital License Agreement THIS AGREEMENT is made and entered into this day of , 19by and between the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVA- TION DISTRICT, a political subdivision of the State of California, hereinafter called "DISTRICT,"and KAISER FOUNDATION HOSPITALS, a California nonprofit public benefit corporation, hereinafter called "KAISER." WITNESSETH: DISTRICT owns and possesses certain property rights as described in the Easement Deeds recorded June 14, 1961 in Book 3888 at pages 218, 224 and 237 and May 22, 1961 in Book 3872 at page 182 of Official Records of Contra Costa County (hereinafter referred to as the "Flood Control Easement"); and KAISER has acquired fee title to certain land by a Grant Deed recorded December 21, 1990, in Book 16313 at page 800 of Official Records of Contra Costa County; and, a portion of KAISER's land is encumbered by and subject to said Flood Control Easement. THAT DISTRICT, for a good and valuable consideration and in further consideration of the faithful performance and observance by KAISER of all of the terms and conditions herein contained, does hereby grant to KAISER a license for the construction, use and maintenance by KAISER of various improvements pursuant to plans submitted by KAISER and approved and permitted in writing (Flood Control permits No. 646-91, 620-94 and No. 629-95) by DISTRICT within portions of the Flood Control Easement Area, subject to DISTRICT's rights to use the Flood Control Easement for all of the purposes for which it was acquired and subject to the terms and conditions herein contained. By this consent, DISTRICT does not, and shall not be deemed to, subordinate its rights to any use which KAISER shall make of the Flood Control Easement.Area. This License Agreement is deemed to be the "Joint Use Agreement" specified in the above-described permits. THE LICENSE above mentioned is granted by DISTRICT and accepted by KAISER upon the following terms and conditions and KAISER and DISTRICT do hereby agree as follows: Page 1 of 11 t ✓nn 1. Definitions: a. As used in this License, "the Flood Control Easement Area" shall refer to the area subject to DISTRICT'S above-described Flood Control Easement. b. As used in this License, "Hospital Improvements" shall refer to the following improvements constructed by KAISER pursuant to plans submitted by KAISER and approved and permitted in writing (Flood Control Permits Nos. 646-91, 620-94 and No. 629-95) by DISTRICT within portions of the Flood Control Easement Area: 646-91 Medical office building exterior staircase 620-94 Electrical back-up system 629-95 8" and 18" storm drain connections 2. Term: This License to construct, operate and maintain Hospital Improvements 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. 3. Use of Flood Control Easement Area: a. The Flood Control Easement Area consists of a corridor which is used for the purposes specified in the Flood Control Easement, namely the right to construct, reconstruct, inspect, maintain and repair a channel, protection works and appurtenant structures for the purpose of confining the waters of Tice Creek and its tributaries, to enter upon said land with personnel, vehicles and equipment, to remove all trees and vegetation thereon that interfere with the purpose for which the Flood Control Easement was granted,.to take therefrom and use earth, rock, sand, and gravel for the purpose of excavating, widening, deepening, and otherwise rectifying the channel, and for the construction, maintenance and repair of embankments, protection works, and appurtenant structures. Any and all rights granted or implied by this License shall be subordinated to the uses permitted under DISTRICT'S Flood Control Easement. KAISER acknowledges that the use just described constitutes the DISTRICT'S use of the Flood Control Easement Area and that KAISER's use of the Hospital Improvements pursuant to this License is secondary and subordinate to said DISTRICT uses. KAISER shall not, at any time, use or permit the public to use the Hospital Improvements in any manner that will materially interfere with or impair said DISTRICT use of the Flood Control Easement Area. Page 2 of 11 b. DISTRICT acknowledges that KAISER is in the business of providing hospital and health care services and therefore, to the extent the circumstances allow, DISTRICT and KAISER will use their best efforts to coordinate work on the surface of the Flood Control Easement Area in order to accomplish any works of construction, reconstruction, maintenance, repairs or modifications to the DISTRICT's facilities with a minimum of disruption to the services provided by the Hospital improvements. DISTRICT shall provide KAISER with as much prior notice as is reasonable under the circumstances before undertaking such activities on the surface of the Flood Control Easement Area and DISTRICT and KAISER shall cooperate with one another to provide for the completion of such work as expeditiously as possible. Absent an emergency or other circum- stances indicating that a longer or shorter notice should be given, sixty days shall be deemed a reasonable notice. C. DISTRICT shall not be held responsible or liable for protecting in place, damage to, or removal of, any fences, gates, structures, asphalt or concrete paving, landscaping, or other Improvements which may be placed, installed, repaired, or constructed on the Flood Control Easement Area when DISTRICT finds it necessary to accomplish work for the maintenance, construction, repair, reconstruction or modifications to DISTRICT'S improvements within the Flood Control Easement Area. However, DISTRICT will exercise reasonable care to minimize adverse impacts of such work upon the Hospital Improvements. 4. Suspension or Limitation of Use: DISTRICT shall have the right to suspend or limit the use of the Hospital Improve- ments by KAISER and the general public for such period as is required to make or perform whatever construction, reconstruction, maintenance,_ repairs or modifications are necessary to ensure the safe or efficient operatiodof DISTRICT's facilities or provide for the public safety as described herein below. a. Non-Emergency Conditions In the event that DISTRICT determines that DISTRICT ne6ds to perform construction, maintenance, repairs or modifications to its facilities such as will require a suspension or limitation of KAISER's use of the Hospital Improve- ments and DISTRICT, in the exercise of its reasonable discretion, determines that the conditions requiring such construction, maintenance, repairs or modifications are not of an emergency nature, DISTRICT will not require a suspension or limitation of KAISER's use of the Hospital Improvements except under the following conditions.- Page onditions:Page 3 of 11 i. DISTRICT shall deliver to KAISER a copy of drawing(s), plan(s) or project description(s) it may have depicting the work which will impact the Hospital Improvements. ii. DISTRICT will concurrently give KAISER sixty (60) days prior notice to develop and deliver to DISTRICT a plan ("Plan") to provide for a reloca- tion, reconfiguration or redesign of the Hospital Improvements so that the Hospital Improvements can continue to be used during the perfor- mance of the DISTRICT's work, including a breakdown of the costs of the Plan. If KAISER fails to deliver to DISTRICT such a Plan within sixty (60) days of the DISTRICT's notice, or notifies DISTRICT that it does not intend to submit a Plan, DISTRICT may immediately proceed to suspend or limit KAISER's use of the Hospital Improvements. If DISTRICT receives the Plan within the sixty (60) day period specified above, DISTRICT will consider the Plan in good faith. As a condition precedent to the DISTRICTs consideration of the Plan, KAISER agrees to pay all related additional costs associated with the Plan. (1) If, following DISTRICT's consideration of the Plan, DISTRICT determines that DISTRICT can proceed in accordance with the Plan, DISTRICT will provide KAISER with written notice of this determination, which notice shall include the estimated amount of additional costs associated with the Plan. No later than fifteen (15) days after said notice is sent to KAISER, KAISER will deposit with DISTRICT the estimated amount of additional costs.If, following the completion of construction, the additional costs are less than the amount of the deposit, DISTRICT will refund the balance of the deposit to KAISER. If, following the completion of construction, the additional costs exceed the amount of the deposit, KAISER will pay to DISTRICT the difference between the actual costs,and the deposit no later than thirty (30) days following a demand therefor. Provided that the following conditions are met, DISTRICT will perform the work in accordance with the agreed upon Plan. (2) If, following DISTRICT's consideration of the Plan, DISTRICT determines that DISTRICT cannot proceed in accordance with the Plan, DISTRICT will provide KAISER with written notice of this determination including a brief statement of the reasons therefor. KAISER shall have thirty (30) days following the date of delivery of said written notice to meet and confer with DIS- TRICT in an attempt to negotiate an alternate plan ("Alternate Page 4 of 11 Plan") to provide for a relocation, reconfiguration or redesign of the Hospital Improvements so that the Hospital Improvements can continue to be used during the performance of the DIS- TRICT's work, including a breakdown of the costs of the Alternate Plan. If the parties are able to agree on an Alternate Pian, no later than fifteen (15) days after such agreement is reached, KAISER will deposit with DISTRICT the.estimated amount of additional costs resulting from the Alternate Plan. If, following the completion of construction, the additional costs are less than the amount of the deposit, the DISTRICT will refund the balance of the deposit to KAISER. If, following the comple- tion of construction, the additional costs exceed the amount of the deposit, KAISER will pay to DISTRICT the difference between the actual costs and the deposit no later than thirty (30) days following a demand therefor. Provided that the following conditions are met, DISTRICT will perform the work in accor- dance with the agreed upon Alternate Plan. (3) If, following DISTRICT's consideration of the Plan and the Alternate Plan, DISTRICT and KAISER are unable to reach an agreement to provide for a relocation, reconfiguration or redesign of the Hospital Improvements so that the Hospital Improvements can continue to be used during the performance of the DIS- TRICT's work, or if KAISER fails to make the deposit required by this Section within the time required, DISTRICT shall thereafter have the immediate right to suspend or limit the use of the Hospital Improvements by KAISER and the general public for such period as is necessary to make or perform whatever construction, maintenance repairs or modifications as are required. (4) All negotiations and actions taken by the parties under this Section shall be undertaken and conducted by the parties in good faith. b. Emergency Conditions In the event that DISTRICT determines that DISTRICT needs to perform construction, reconstruction, maintenance, repairs or modifications to its facilities such as will require a suspension or limitation of KAISER's use of the Hospital Improvements and the DISTRICT, in the exercise of its sole reasonable discretion, determines that the conditions requiring such construc- tion, reconstruction, maintenance, repairs or modifications are of an emergency Page 5 of 11 nature, DISTRICT shall have the right to suspend or limit the use of the Hospital Improvements by KAISER and the general public for such period as is necessary to make or perform whatever construction, reconstruction, maintenance, repairs or modifications are required to ensure the safe or efficient operation of DISTRICT's facilities or provide for the public safety without following the procedures set forth in Section 4.a. above. Under such emergency circumstances, DISTRICT shall endeavor to give KAISER as much notice prior to the suspension or limitation of use as the circumstances permit and DISTRICT and KAISER shall cooperate with one another to provide for the completion of the work as expeditiously as possible. 5. Indemnification: KAISER shall indemnify, save, protect, defend, and hold harmless DISTRICT, its boards, officers, and employees from and against any and all loss, liability, expense, claims, costs, suits, and damages, including attorney's fees, to the extent arising out of or connected with KAISER's operations, performance, presence or public use of the Hospital Improvements or in the Flood Control Easement Area. 6. Insurance Requirements: KAISER 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 DISTRICT. No construction on or use of the Hospital Improvements shall commence until such insurance has been approved by DISTRICT. The certificates shall be on forms provided by DISTRICT or the insurance carrier. Acceptance of the certificates shall not relieve KAISER of any of the insurance requirements, nor decrease the liability of KAISER. DISTRICT reserves the right to require KAISER to provide insurance policies for review by DISTRICT. (a) Worker's Compensation Insurance. KAISER shall take out and maintain Worker's Compensation and Employer's Liability Insurance for all of its employees performing work on the Hospital Improvements. KAISER shall require any subcontractor to provide it with evidence of Worker's Compen- sation and Employer's Liability Insurance, all in strict compliance with California State laws. (b) Public Liability Insurance. KAISER 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. KAISER shall require any subcontractor to provide evidence of the same liability insurance coverages. The amounts of insurance shall be not less than the Page 6 of 11 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) Contra Costa County Flood Control and Water Conservation District, its boards, officers 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 DISTRICT 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 DISTRICT. (d) Failure of Coverage. Failure, inability, or refusal of KAISER to take out and maintain during the entire term of this License any and all of the insurance as aforesaid shall at the option of DISTRICT constitute a breach of this License and justify immediate termination of the same. a (e) Self Insurance. KAISER has the right and option to self-insure the require- ments under this Section 6 upon written notice to DISTRICT that KAISER assumes the obligations in the place and stead of any insurance carrier, any reference to failure of coverage notwithstanding. In the event that KAISER elects to self-insure, KAISER shall provide to DISTRICT a certificate or other evidence of self-insurance acceptable to DISTRICT. 7. Approval and Inspection of Hospital Improvements: Page 7 of 11 ' 3 In constructing, maintaining and using the Hospital Improvements, KAISER shall comply with all terms, conditions, and requirements imposed by DISTRICT and shall not deviate in any material manner from the plan approved by DISTRICT, without first obtaining additional approval in writing from DISTRICT, which approval shall not be unreasonably withheld. All work performed by KAISER under this Section shall be subject to inspection by DISTRICT. This License applies only to the construction, use and maintenance by KAISER of the Hospital Improvements and does not constitute approval for any other construction, reconstruction, remodeling, repair, removal, or other work by KAISER within the Flood Control Easement Area, which could, upon inquiry, require additional written approval from the DISTRICT. KAISER shall not be required to obtain DISTRICT'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 DISTRICT, 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 DISTRICT, which repairs are necessary to protect the safety of the public and others. Except in the case of emergency or routine maintenance, KAISER shall consult DISTRICT at least seven (7) days before any major Hospital Improvement maintenance operations are performed by KAISER. Work shall be done in such a manner that DISTRICT shall at all times be able to use and gain access to its Improvements. 8. Assignment: No rights of KAISER hereunder shall be transferred or assigned unless the written consent of DISTRICT is first secured, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, KAISER may assign this Agreement to Kaiser Foundation Health Plan, Inc., The Permanente Medical Group, Inc. or to (i) any parent, subsidiary, affiliated or successor corporation of Kaiser; or(ii) any corporation with which Kaiser may merge or consolidate. 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. 9. Abandonment by KAISER: If KAISER shall, for a period of at least one continuous year,fail to use or maintain the Hospital Improvements or any portion thereof, then all rights of KAISER under this agreement in and to such portions not used or maintained shall immediately terminate, at DISTRICT's sole discretion 10. Hospital Improvements Maintenance: Page 8 of 11 KAISER shall maintain at its expense all improvements installed by KAISER on the Flood Control Easement Area or as part of the Hospital Improvements, including storm drains and tie-ins, structures, pavement, culverts, gates, signs, fences, bollards, and landscaping. Encroachment Permits: DISTRICT shall have the sole right to grant encroachment permits or rights of entry within the Flood Control Easement Area. KAISER shall obtain permits from all other agencies as required for construction of the Hospital Improvements. This paragraph is not intended and shall not require KAISER, its agents, contractors or employees to obtain an additional encroachment permit (other than that required by Section 7) or right of entry in order to use the Hospital Improvements for the purposes of this License. 11. Modification: This License shall be subject to modification or amendment only by the written, mutual consent of both parties. 12. Entire Agreement: Except for the Easement Deeds described above, 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. This License shall not be construed to amend or modify DISTRICT's Flood Control Easement. 13. Notices: All notices (including requests, demands, approvals or other communications) under this License shall be in writing. a. Notice shall be sufficiently given for all purposes as follows: i. When delivered by first class mail, postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States Mail. ii. When mailed by certified mail with return receipt requested, notice is effective on receipt if delivery is confirmed by a return receipt. Page 9 of 11 �,3 v iii. When delivered by overnight delivery by a nationally recognized overnight courier, notice shall be deemed delivered one (1) business day after deposit with that courier. iv. When delivered by telecopy or similar means, notice shall be deemed delivered one (1) business day after the day it was transmitted by telecopier or similar means, provided that a transmission report is generated by reflecting the accurate transmission of the notices. V. When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered. b. The place for delivery of all notices given under this Agreement shall be as follows: KAISER: Kaiser Foundation Health Plan, Inc Attn: Real Estate Department 1950 Franklin Street, 12th Floor Oakland, CA 94612-2998 Telephone: (510) 987-3281 Fax: (510) 873-5060 DISTRICT: Contra Costa County Flood Control and Water Conservation District Attn: Real Property Division 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2220 Fax. (510) 313-2333 or to such other addresses as KAISER and DISTRICT may respectively designate by written notice to the other. Page 10 of 11 IN WITNESS WHEREOF, the parties hereto have executed this License, in duplicate, the day and year first above written. Contra Cos Coui3W, Flood Control Kaiser Foundation Hospitals & Water C s ti District BY BY gL C it of Supervisors K VIN M. KELLY Name: fit'- F w►t Name: RECTOR OF REAL ESTATE (Please Print) \ (Pleas riM) Title ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By Deputy Name: Shi r l e u 1u� (Please Print) RECOMMENDED FOR By ref Engin Name: �J-- MLC0AEL OJALr-yk.D Print) By eaI Propert Agent Name: PoyNG o w k., �¢S ease rin APPROVED AS TO FORM APPROVED AS TO FORM Victor J. Westman, County Counsel Counsel for Kaiser Foundation Hospitals By &19a7;�a& uy Name: S - .se Name: 6!%Y �• � 1 (Please Pnnt) (Please Print) DD:glo gory alpr1p \tteemp\kaiser.t7 Page 11 of 11