HomeMy WebLinkAboutMINUTES - 12021997 - C23 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 2, 1997
SUBJECT: LICENSE AGREEMENT WITH WATERWORLD USA FOR PINE CREEK
CHANNEL SERVICE ROAD ACCESS - CONCORD AREA
W.O. No.: 8173 Task: ACQ Account: 3540
FC Permit#609-95
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE License Agreement with Waterworld USA and AUTHORIZE Board Chair to execute
said License on behalf of the Flood Control District.
II. Financial Impact:
None.
Continued on Attachment: X SIGNATURE:
_RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON �,2- A - 19'?7 APPROVED AS RECOMMENDED_OTHER_
VOTE OF SUPERVISORS
UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
NW:gpp
E,fare certify thatthis is a nue and correct copy or
g:\realprop\97-12\BO2-12e.wpd
en actioio n taken and d entered on the minutes of the
Orig. Div: Public Works(R/P) Board of Su rvisors on the date shown.
Contact: Nancy Wenninger (313-2227) ATTEMD �'�997
PHIL BATCHELOR,Clerk at„ boarw
cc: County Administrator of Supervisors and County Administrator
Auditor-Controller(via R/P)
P.W.Accounting of Deputy
License Agreement-Waterworld USA
December 2, 1997
Page Two
III. Reasons for Recommendations and Background:
Waterworld USA is a recreational facility located immediately south of the confluence of the
Walnut Creek and Pine Creek channels in the City of Concord. The park's operator, Premier
Waterworld Concord, Inc., has requested permission to use a portion of Pine Creek Channel's
service road for ingress and egress for deliveries and to perform maintenance on its park
facilities. As a condition of the above-referenced License Agreement, Waterworld agrees to
share in the maintenance of the service road and to indemnify the District against any loss or
damage which may occur as a result of Waterworld's use of the District's property. As a further
condition, the License Agreement shall not become effective until both the City of Concord and
Waterworld convey to the District a permanent access easement across a portion of the
Waterworld parking lot.
IV. Consequences of Negative Action:
The District will not be able to acquire permanent rights for a second access route to maintain its
facilities.
f .
License Agreement
WATERWORLD USA
PINE CREEK CHANNEL SERVICE ROAD ACCESS
THIS AGREEMENT is made and entered into this ,`qday of , 19 , by
and between the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT, a political subdivision of the State of California,
hereinafter called "DISTRICT," and PREMIER WATERWORLD CONCORD INC., a
California corporation, hereinafter called "LICENSEE."
WITNESSETH:
THAT LICENSEE owns and operates Waterworld USA, a recreational facility located
immediately south of the confluence of the Walnut Creek and Pine Creek channels in
the City of Concord. LICENSEE has requested permission to use a portion of Pine
Creek Channel's service road for ingress and egress for deliveries and to perform
maintenance on its park facilities.
THAT DISTRICT, for good and valuable consideration but no further fee or charge, and
in further consideration of the faithful performance and observance by LICENSEE of all
of the terms and conditions herein contained, does hereby grant to LICENSEE a
license for the use of a temporary right of way for ingress and egress purposes,
hereinafter referred to as "the Access."
THE LICENSE above mentioned is granted by DISTRICT and accepted by LICENSEE
upon the following terms and conditions and LICENSEE does hereby agree with
DISTRICT as follows:
1. Definitions: As used in this License, "the Property" shall refer to that portion of
land owned in fee title by DISTRICT known as Pine Creek Channel, located in
the City of Concord.
As used in this License, "the Access" shall refer to a portion of the service road
located on the westerly embankment of Pine Creek north of Willow Pass Road
shown on the map attached hereto as Exhibit "A" and incorporated herein by this
reference. As shown on said map, Area #1 shall be LICENSEE's primary access
area; Area #2 shall be used for minor maintenance and emergency access.
2. Title of District: LICENSEE hereby acknowledges the title of DISTRICT 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.
Page 1 of 7
3. Term: This License shall not become effective unless and until the City of
Concord and LICENSEE have conveyed to DISTRICT an easement acceptable
to DISTRICT in its sole discretion, for access purposes along the southerly side
of the Waterworld parking lot, as shown on Exhibit "A." If the easement is
conveyed, this License shall become effective on the date the easement to the
DISTRICT is recorded. Unless suspended, revoked or partially revoked as
hereinafter set forth, this License to construct, operate and maintain the Access
across the Property shall terminate upon termination of the easement or on its
anniversary date in the year 2124, whichever shall occur.
4. Primary Use of Property: The Property is a portion of a creek corridor 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 uses just mentioned, as well as to other
uses of the Property made or permitted by DISTRICT.
LICENSEE acknowledges that the uses just described constitute the primary use
of the Property and that LICENSEE's use of the Property pursuant to this
License is secondary and subordinate to said primary uses. LICENSEE shall
not, at any time, use or permit the public to use the Property in any manner that
will materially interfere with or impair said primary use of the Property. All rights
granted to LICENSEE 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 DISTRICT's right to use the Access for
emergency or maintenance vehicle access or any other purpose.
5. Suspension or Limitation of Use: DISTRICT and its permittees shall have the
right to suspend or to limit the use of the Access by LICENSEE 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, DISTRICT
shall provide LICENSEE fifteen (15) days' prior notice in writing, except in cases
of emergency including but not limited to emergency maintenance or repairs.
6. Revocation: In the event, in the sole discretion of DISTRICT, the primary uses
of the Property by DISTRICT or DISTRICT's permittees reasonably require some
permanent use of a portion or portions of the Property which, by nature thereof,
precludes LICENSEE's use thereof, DISTRICT may, upon three months' prior
notice, revoke this License.
Page 2 of 7
7. Maintenance and Litter: During the term of this License, LICENSEE shall
maintain the Access and adjacent channel area in a clean, safe and presentable
condition, free from waste, litter and other items incidental to Access use and left
by parties other than DISTRICT 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 appear-
ance of the Property. If LICENSEE fails so to keep the Access then, after thirty
(30) days' prior written notice specifying the needed work, DISTRICT may'
perform or hire the necessary work at the reasonable expense of LICENSEE,
which expense LICENSEE agrees to pay to DISTRICT upon demand.
LICENSEE agrees to keep the Access free from weeds and other vegetation,
and to abate weeds to local fire district standards.
DISTRICT shall use its best efforts to perform weed abatement operations along
Pine Creek prior to 10:30 a.m. during the period between Memorial Day and
Labor Day and to schedule desilting of Pine Creek in September after Labor
Day. However, if DISTRICT fails to do so, DISTRICT shall not be liable to
LICENSEE.
8. Indemnification: In the exercise of all rights under this License, LICENSEE
shall be responsible for any and all injury to the public and to individuals, arising
out of LICENSEE's use of the Property, including but not limited to the Access.
LICENSEE shall indemnify, defend, save, protect and hold harmless DISTRICT,
its officers, and employees (hereinafter collectively referred to as "DISTRICT"),
from and against any and all loss, damage, liability, claims, suits, demands, or
expense of whatever character, including attorney's fees, to persons or property,
direct or consequential, directly or indirectly contributed or caused by
LICENSEE's operations, acts or omissions pursuant to this Agreement or the
public use of the Access or the Property, save and except claims or litigation
arising through the sole willful misconduct of DISTRICT, its officers or
employees.
LICENSEE further agrees to defend, indemnify, save, protect and hold harmless,
DISTRICT from any and all claims, costs, actions or proceedings to attack, set
aside, void; abrogate or annul this License or any act or approval of DISTRICT
related thereto.
The obligations contained in this section shall survive the assignment, expiration
or termination of this License.
9. 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 DISTRICT. No construction on or use of
the Property shall commence until such insurance has been approved by
Page 3of7
DISTRICT. The certificates shall be on forms provided by DISTRICT or the
insurance carrier. Acceptance of the certificates shall not relieve LICENSEE of
any of the insurance requirements, nor decrease the liability of LICENSEE.
DISTRICT reserves the right to require LICENSEE to provide insurance policies
for review by DISTRICT.
(a) Worker's Compensation Insurance. LICENSEE shall take out and
maintain Worker's Compensation and Employer's Liability Insurance for
all of its employees on the Access. LICENSEE 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. 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 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 DIS-
TRICT will be called upon to contribute to a loss under this cover-
age;
(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;
Page 4 of 7
(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 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 DISTRICT constitute a
breach of this License and justify immediate termination of the same.
10. Assignment: No rights of LICENSEE hereunder shall be transferred or
assigned unless the written consent of DISTRICT 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.
11. Abandonment by Licensee: If LICENSEE shall, for a period of at least 120
consecutive days, fail to use or maintain the Access or any portion thereof, then
all rights of LICENSEE in and to such portions not used or maintained shall
immediately terminate, at DISTRICT's sole discretion.
12. Pollution: LICENSEE, at its expense, shall comply with all applicable laws,
regulations, rules, and others, with respect to the 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 DISTRICT.
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,
contractors and agents, LICENSEE, at its expense, shall be obligated to clean
all the property affected thereby, whether owned or controlled by DISTRICT or
any third person, to the satisfaction of DISTRICT (insofar as the property owned
or controlled by DISTRICT is concerned) and any governmental body having
jurisdiction there over.
13. Signs: LICENSEE shall maintain existing signs and install appropriate informa-
tional and warning signs. LICENSEE shall also install signs designating
permitted Access uses by the general public and regulations governing such
uses.
14. Access Maintenance: LICENSEE shall maintain at its sole expense the paved
section of the service road as shown in Area #1 on the attached map.
LICENSEE shall be responsible for the maintenance and repair of the gravel
surface on Area #2 only to the extent that their operations cause damage.
Page 5of7
LICENSEE shall keep the southerly gate on the service road closed and locked
at all times except when used for maintenance or emergency access.
15. Vandalism: LICENSEE shall, at its own expense, promptly repair all damage to
Access improvements, to the Property, and to existing and future utilities,
caused or contributed to by users of the Access.
16. Encroachment Permits: DISTRICT shall have the sole right to grant encroach-
ment permits or rights of entry within the Property. Notification of encroachment
permits granted and plans approved by DISTRICT will be forwarded to
LICENSEE.
17. Modification: This License may not be modified, amended or the term extended
except by the written, mutual consent of both parties.
18. Notices: All notices, requests and communications required or permitted
hereunder shall be in writing and shall be sufficiently 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 transmission
report is generated which reflects accurate transmission 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) business 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 follows:
If to the Licensor:
Contra Costa County Flood Control
and Water Conservation District
Attn: Real Property Division
255 Glacier Drive
Martinez, CA 94553
Telephone: (510) 313-2220
Facsimile: (510) 313-2333
If to the LICENSEE:
Premier Parks Inc.
Attn- Steven Mayer
General Manager, Waterworld USA
1950 Waterworld Parkway
Concord, CA 94520
Telephone: (510) 609-1364 Ext. 101
Facsimile: (510) 609-1360
Page 6 of 7
19. 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.
Premier Waterworld Concord, Inc. Contra Costa County Flood
Control Water Conservation District
By: c 1 By: —
Rick McCurley Chair, Board of Supervisors
Vice-President / aa-- 9 9'7
Attest:
Phil Batchelor
Clerk of the Board of Supervisors
and County Administrator
Approved as to form:
Victor J. Westman
County Counsel
By: .
Deputy
NW:9PP
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October 16, 1997
Page 7 of 7
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