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HomeMy WebLinkAboutMINUTES - 12161997 - C13 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: DECEMBER 16, 1997 SUBJECT: LICENSE AGREEMENT WITH EMERSON DAIRY FOR ACCESS TO THE MARSH CREEK RECREATIONAL TRAIL - OAKLEY AREA Project No.: W.O. 8173 Task: ACID Account: 3540 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION 1. Recommended Action: APPROVE License Agreement with Emerson Dairy and AUTHORIZE Board Chair to execute said License on behalf of the Flood Control District. Il. Financial Impact: None. Continued on Attachment: X SIGNATURE _RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON �,Q -�6 ' APPROVED AS RECOMMENDED_OTHER_ VOCE OF SUPERVISORS UNANIMOUS(ABSENT ) AYES: NOES: ABSENT: ABSTAIN: NW:gpp g:\realprop\97-12\BOc16-12.wpd Orig. Div: Public Works(R/P) ( ,d co.rre/ct of � Namo he Contact: Nancy Wenninger(313-2227) Iq and °nt.eon board of supaT orson ttt� ��/ry cc: County Administrator Auditor-Controller(via R/P) ATMTEP ILnATCHELOA,VVA ° oard Of supervisors and County Administrator P.W.Accounting oeputy III. Reasons for Recommendations and Background: Emerson Dairy owns real property located directly adjacent to and easterly of Marsh Creek north of East Cypress Road in Oakley. Emerson Dairy has requested permission to use a portion of the Marsh Creek Trail to patrol the perimeter of the Dairy's property to prevent trespass of hunters during pheasant hunting season and to monitor agricultural uses. As a condition of the above- referenced License Agreement, Emerson Dairy agrees to indemnify the District against any loss or damage which may occur as a result of their use of the District's property. IV. Consequences of Negative Action: The terms and conditions of this agreement limiting Emerson Dairy's use of the District's property will not be in force. C. I j License Agreement EMERSON DAIRY ACCESS TO MARSH CREEK RECREATIONAL TRAIL THIS AGREEMENT is made and entered into this /&-4 day of 1997, by and between the CONTRA COSTA FLOOD CON- TROL AND WATER CONSERVATION DISTRICT, a body corporate and politic, hereinafter called "LICENSOR, " and EMERSON DAIRY, a California corporation, hereinafter called "LICENSEE. " W I T N E S S E T H: LICENSOR owns and possesses fee title interest in certain real property known as "Marsh Creek, " located in an unincor- porated area of Contra Costa County north of Cypress Road and west of Sellers Avenue. On November 3 , 1992, LICENSOR granted a license to the EAST BAY REGIONAL PARK DISTRICT to construct, maintain, and operate the Marsh Creek Recrea- tional Trail, hereinafter called "the Trail, " a public fa- cility for bicyclists, equestrians, and pedestrians to be constructed on the levee road within the Marsh Creek prop- erty. LICENSEE owns and possesses fee title interest to certain real property located directly adjacent to and easterly of Marsh Creek. LICENSEE desires access to the Trail for pur- poses of patrolling the perimeter of LICENSEE' s property to prevent trespass of hunters during pheasant hunting season, prevent trespass on Licensee' s property and monitor agricul- tural- uses . LICENSEE and the EAST BAY REGIONAL PARK DIS- TRICT entered into a Joint-Use Agreement (Marsh Creek Trail) (the "Joint Use Agreement" ) by letter agreement dated August 15, 1997 to integrate LICENSEE' S uses of the Trail with those of the EAST BAY REGIONAL PARK DISTRICT. LICENSOR, for a good and valuable consideration and in fur- ther consideration of the faithful performance and obser- vance by LICENSEE of all of the terms and conditions herein contained, does hereby grant to LICENSEE a license for in- gress and egress across and along said Trail, including: use of the turnaround near the northeastern end of the Property for turning vehicles; the existing siphon at the northwest- ern bend in the levee; access to a pump at the pier at the northeastern terminus of the Trail; electrical service and a plastic sleeve for a water pipe crossing the levee under the EMO1-01.15.01W 01/61/02 Trail to serve such pump; use of existing roads providing access to the Trail from the adjacent property owned by LI- CENSEE; use by a private security guard during pheasant hunting season contracted for by LICENSEE; and use of such portions -of the Property as may be located to the east of the Trail as may be reasonably required to implement the foregoing. THE LICENSE mentioned above is granted by LICENSOR and ac- cepted by LICENSEE upon the following terms and conditions, and LICENSEE and LICENSOR do hereby agree as follows : 1. Definitions : As used in this License, "the Property" shall refer to that portion of Marsh Creek extending from Cypress Road north to its terminus at Big Break, as shown on the map attached hereto as Exhibit "A" . As used in this License, "the Trail" , shall refer to a 20- foot wide corridor located on the most easterly levee of the Property, and "Trail Improvements" shall refer to an asphalt or concrete path, shoulder, equestrian trail, signs, drain- age facilities, barrier fencing or walls (including any gates) , landscaping, bridges and other similar additions to the Trail . 2 . Title of LICENSOR: LICENSEE hereby acknowledges the title of LICENSOR in and to the Property and agrees never to assail or to resist said title. LICENSEE agrees that it has not acquired nor will it hereafter acquire any rights or interest in the Property, nor does LICENSEE have nor will it obtain any right or claim to the use of the Property beyond those specifically granted in this License, except the rights which it holds under the Agreement dated February 14, 1968 and recorded at Book 5724, Page 112 of Official Records, Contra Costa County, Califor- nia. 3 . Term: Unless suspended or partially revoked as hereinafter set forth in Sections 5, 6, or 11, this License shall not be 2 EMO1-01.15.01W 01/61/02 revocable and this License shall terminate twenty-five (25) years from the date hereof . By mutual written consent of the parties hereto, this License may thereafter be extended for an additional twenty-five (25) year term. Upon written request for such twenty-five year extension by LICENSEE, LI- CENSOR shall not unreasonably withhold its consent to such extension. LICENSOR shall respond to LICENSEE' s written re- quest for such extension in writing within 90 days, and if the response is a denial of the request, with the reasons for denial stated in reasonable detail . 4. Primary Use of Property: The Property consists of a corridor which is used for flood control purposes. Any and all rights granted or implied by this License shall be subordinated to the use just men- tioned, as well as to all other uses of the Property made or permitted by LICENSOR. LICENSEE acknowledges that the flood control use just de- scribed constitutes the primary use of the Property and that LICENSEE' S use of the Trail pursuant to this License is sec- ondary and subordinate to said primary use. LICENSEE shall not, at any time, use the Trail in any manner that will ma- terially interfere with or impair said primary use of the Property. All rights granted to LICENSEE hereunder are sub- ject to: all existing rights, rights of way, reservations, franchises, and licenses in the Property, regardless of who holds the same; LICENSOR' S right to use the Trail for emer- gency or maintenance vehicle access or any other purpose, whether past, present or future, in implementation of the Property' s primary use; and to all future rights (whether as a right, right of way, reservation, franchise or license) in the Property which LICENSOR in its discretion may choose to grant to other persons except such future rights as are so conflicting as to completely preclude LICENSEE from the uses specified in the License. 5. Suspension or Limitation of Use: LICENSOR and its permitees shall have the right to suspend or to limit the use of the trail by LICENSEE for a reason- able amount of time for protection of public safety, or for the construction, installation, operation, maintenance, or 3 EMO1-01.15.01W 01/61/02 repair of other facilities on the Property. Should such suspension or limitation be necessary, LICENSOR shall pro- vide LICENSEE fifteen (15) day' s prior notice in writing, except in cases of emergency maintenance or repairs . LICENSEE' S rights to use the existing turnaround near the northeastern end of the Property shall end at such time as the EAST BAY REGIONAL PARK DISTRICT constructs a new turn- around on LICENSEE' S property to the east of the trail ter- minus, which turnaround is in accordance with the Joint Use Agreement' s requirements . 6 . Revocation: In the event, in the sole discretion of LICENSOR, the pri- mary use of the Property by LICENSOR or LICENSOR' S permit- tees reasonably requires some permanent use of a portion or portions of the Property which, by nature thereof, precludes LICENSEE' S use thereof, LICENSOR may, upon six months' prior notice, revoke this License as to the area LICENSOR reasona- bly deems necessary for such permanent primary use. LICEN- SOR shall supply LICENSEE with a map or drawing identifying the area (s) as to which this License is so revoked. 7 . Indemnification: LICENSEE shall indemnify, save, protect, defend and hold harmless LICENSOR and the EAST BAY REGIONAL PARK DISTRICT, their respective boards, officers and employees from and against any and all loss, liability, expense, claims, costs, suits, and damages, including attorney' s fees, arising out of or connected with LICENSEE' S operations on the Trail or Property. 8. Insurance Requirements: LICENSEE 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 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. Accep- tance of the certificates shall not relieve LICENSEE of any of the insurance requirements, nor decrease the liability of 4 EMO1-01.15.01W 01/61/02 LICENSEE. LICENSOR reserves the right to require LICENSEE to provide insurance policies for review by LICENSOR. (a) Worker' s Compensation Insurance. LICENSEE shall take out and maintain Workers Compensation and Employer' s Liabil- ity insurance for all of its employees on the Trail . LICEN- SEE shall require any subcontractor on the Property to pro- vide it with evidence of Worker' s Compensation and Em- ployer' s Liability insurance, all in strict compliance with California State laws . (b) Public Liability Insurance. LICENSEE 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. LICENSEE 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 Li- ability and property Damage : $1, 000, 000 per occurrence . (c) Endorsements. The following endorsements must be indi- cated on the certificate or substantiated by the policy. (1) Contra Costa County Flood Control and Water Conserva- tion District and East Bay Regional Park District, their re- spective boards, officers and employees are additional in- sureds 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 un- der this coverage; (3) The policy covers blanket contractual liability; (4) The policy limits of liability are provided on an oc- currence basis; (5) The policy covers broad form property damage liability; (6) The policy covers personal injury as well as bodily in- jury liability; 5 EMO1-01.15.01W 01/61/02 (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 al- tered unless thirty (30) days written notice is given to LI- CENSOR. (d) Failure of Coverage. Failure, inability, or refusal of LICENSEE 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 LICENSOR constitute a breach of this Li- cense and after 10 days, notice with opportunity for cure and no cure provided, justify immediate termination of the License. 9. 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 ob- ligation to maintain the Property or repair any damage re- sulting from sliding, erosion, subsidence, or flooding un- less in the sole discretion of LICENSOR such damage affects the integrity of the flood control facilities. LICENSEE shall exercise reasonable care to minimize adverse impact upon the Trail and Trail improvements. In the event that such damage occurs, LICENSEE shall immediately notify LICENSOR. If said damage affects the integrity of the flood control facilities, LICENSOR may at its sole discretion per- form or hire the necessary repairs at the reasonable expense of the LICENSEE, which expense the LICENSEE agrees to pay to LICENSOR upon demand. If time permits, LICENSOR may confer with LICENSEE concerning the appropriate repairs, and if LI- CENSOR approves, LICENSEE may perform such repairs. 10 . Assignment: No rights of LICENSEE hereunder shall be transferred or as- signed unless the written consent of LICENSOR is first se- 6 EMO1-01.15.01W 01/61/02 cured, such consent, not to be unreasonably withheld. With that exception, this License and each and all of the cove- nants herein contained shall inure to the benefit of and be binding upon the successors and assigns of the respective parties hereto. 11. Abandonment by LICENSEE: If LICENSEE shall, for a period of at least six months, fail to use the Trail or any portion thereof, then all rights of LICENSEE in and to such portions not used shall immediately terminate, at LICENSOR' s sole discretion. 12 . Pollution: LICENSEE, at it expense, shall comply with all applicable laws, regulations, rules, and others, with respect to LICEN- SEE' S use of the Property, regardless of when they become or became effective, including, without limitation, those re- lating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and furnish sat- isfactory evidence of such compliance upon request of LICEN- SOR. No hazardous materials shall be handled by LICENSEE 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 LICENSEE' S employees, contrac- tors, and agents, LICENSEE, at its expense, shall be obli- gated 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, LICENSEE shall indemnify, hold harmless, and defend LICENSOR and such holders of user rights against all liability, cost, and expense (including, without limitation, any fines, penalties, judgments, litiga- tion costs, and attorneys' fees) incurred by LICENSOR and such other users as a result of LICENSEE' S breach of this section or as a result of any such discharge, leakage, spillage, emission, or pollution caused by LICENSEE or its officers, employees, contractors, subcontractors or agents, 7 EMO1-01.15.01W 01/61/02 regardless of whether such liability, cost, or expense is proximately caused solely by the active negligence of LICEN- SOR. LICENSEE shall pay all amounts due LICENSOR under this sec- tion within ten (10) days after any such amounts become due. 13 . Modification: This License shall be subject to modification or amendment only by the written, mutual consent of both parties . 14 . Notices: All notices, requests, and communications required .or per- mitted hereunder shall be in writing and shall be suffi- ciently deemed to have been given and received upon personal delivery by messenger, one business day following delivery by overnight courier or telecopier (provided that a trans- mission report is generated which reflects accurate trans- mission of the notice and a copy of the notice is mailed on the same day as the telecopy transmission) or, if mailed upon the first to occur of actual receipt or three (3) busi- ness days after being placed in the United States mail, postage prepaid, registered or certified mail, with return receipt requested, addressed to the above parties as fol- lows : If to the LICENSOR: Contra Costa County Flood Control and Water Conservation District Attention: Real Property Division 255 Glacier Drive Martinez, CA 94553 Telephone : 510-313-2220 Facsimile : 510-313-2333 If to the LICENSEE: Emerson Dairy c/o Stan Emerson 7101 Sellers Avenue Oakley, CA 94561-9986 Telephone: 510-625-3656 Facsimile : 510-625-8024 8 EMO1-01.15.01W 01/61/02 . 15. Entire Agreement: It is understood that this document contains the entire agreement between the parties hereto and all prior under- standings or agreements, oral or written, of whatsoever na- ture 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 Emerson Dairy and Water Conservation District a California corporation BY BK z Chair, Board of Supervisors esid n BY Secretary ATTEST: 1 ,;L Phil Batchelor Clerk of the Board of Supervisors and County Administrator By Approved as to form: Victor J Westman County Counsel By S\ Deputy 17 9 EMO1-01.15.01W 01/61/02