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HomeMy WebLinkAboutMINUTES - 01211997 - C5 TO: BOARD OF SUPERVISORS FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR DATE: JANUARY 21, 1997 SUBJECT: LICENSE AGREEMENT FOR RODEO CREEK RECREATIONAL TRAIL IMPROVEMENTS - RODEO AREA Project No.: W.O. 5296 Task: ACQ Account: 3540 SPECIFIC REQUEST(S)OR RECOMMENDATIONS)&BACKGROUND AND JUSTIFICATION I. Recommended Action: A. APPROVE License with Ruth T. Claeys, David R. Claeys and the Contra Costa County Flood Control &Water Conservation District and AUTHORIZE the Board Chair to execute said License on behalf of the County. B. As the governing body of the Contra Costa County Flood Control & Water Conservation District, APPROVE License Agreement with Ruth T. Claeys, David R. Claeys and Contra Costa County and AUTHORIZE Board Chair to execute said License on behalf of the District. Continued on Attachment: X SIGNATURE: _RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE —APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON al) 1177 APPROVED AS RECOMMENDED OTHER VOCE OF SUPERVISORS �// UNANIMOUS(ABSENT ) AYES: NOES: ABSENT: ABSTAIN: 1 hereby ceNfy that this Is a true and correct copy of NW;gpp an acrion taken and entered on the minutes of the g:lrealpropltemp1B021.t1 6owd of ISM on the data shown. Orig. Div: Public Works(RIP) rE8 PHAAATCHELORtiOrk of ha board Contact: Nancy Wenninger(313-2227) asupMvaoraana ountyAdmintstrata cc: County Administrator „ P.W.Accounting - .. _._.._ =— °ewe► Recorder(via R/P) Ucense Agreement for Rodeo Creek Recreational Trail Improvements January 21, 1997 Page Two 11. Financial Impact: Sources of funding for the construction and maintenance of Rodeo Creek Trail include Lighting/Landscaping Assessment District Zone 38, park dedication fees, East Bay Regional Park District Local Grant Program (AA Bond), State of California, State Department of Parks & Recreation (National Recreational Trails Fund Act Program), Cal Trans (Environmental Enhancement & Mitigation Program), and the Trust for Public Land. 111111. Reasons for Recommendations and Background: The County plans to construct a pedestrian and bicycle path for public use on the Flood Control District's access road along the Rodeo Creek channel extending from Investment Street to Mariners Point Court in Rodeo. The County has previously been granted a license from the District to construct and operate the trail on a portion of District land encumbered by an access easement owned by the Claeys family. In order to protect trail users and trail improvements, the License Agreement currently under consideration sets forth terms and conditions under which the Claeys can recommence their rightful use of the property for vehicular access. Said agreement guarantees the County's right to use the property to operate the Rodeo Creek Trail and provides for the replacement of any trail improvements which may be disturbed by the Claeys' future use. IV. Consequences of Negative Action: The County will be unable to construct and maintain the facility in accordance with approved plans and specifications. i AFTER RECORDING, RETURN TO: RECORDED AT REQUEST OF: Contra Costa County Contra Costa County Attn: Real Property Division 255 Glacier Drive Martinez, CA 94553 LICENSE AGREEMENT RODEO CREEK RECREATIONAL TRAIL IMPROVEMENTS THIS AGREEMENT is made and entered into this 3/ day ot;,& 1996, among RUTH T. CLAEYS Trustee of the Ruth T. Claeys LVTST , and DAVID R. CLAEYS, jointly hereinafter called "LICENSOR,"COUNTY OF CONTRA COSTA, a political subdivision of the State of California, hereinafter called "COUNTY," and the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, hereinafter called "DISTRICT." WITNESSETH: COUNTY plans to construct a pedestrian and bicycle path for public use (hereinafter called "Trail"), including but not limited to the installation of landscaping, paving, irrigation systems and site amenities, along that portion of Rodeo Creek extending from Investment Street to Mariners Point Court in Rodeo. The DISTRICT is the owner of the subject property. LICENSOR owns and possesses certain easement rights in property owned by DISTRICT, as reserved in the Grant Deed to DISTRICT recorded February 15, 1967, in Book 5306 at Page 417 of Official Records of Contra Costa County(hereinafter called"CLAEYS Easement"). COUNTY has been granted a license from DISTRICT to construct and operate said Trail on a portion of DISTRICT's land encumbered by and subject to the CLAEYS Easement. By this License Agreement, LICENSOR hereby grants to COUNTY a perpetual;irrevocable license for the use of the entire length and width of the Property described herein for public trail purposes and for the construction, reconstruction, maintenance, removal, replacement and use of certain improvements defined herein as"Trail Improvements" upon said property and DISTRICT hereby consents to the granting of said license. This License is granted by LICENSOR, accepted by COUNTY, and consented to by DISTRICT upon the following terms and conditions: 1. Definitions: As used in this License, "the Property"shall refer to the land encumbered by and subject to the LICENSOR's above described twenty-one (21) foot wide easement for purposes of ingress and egress along Rodeo Creek between 7th Street and Hawthorne Drive in Rodeo, reserved in the Deed identified above. Page 1 of 6 As used in this License, 'Trail Improvements"shall refer to all recreational facilities installed by COUNTY on the Property, which may include, but are not limited to, asphalt or concrete paths, shoulder, tables, benches, signs, drainage facilities, barrier fencing or walls, trees, shrubs, grasses, ground cover, and an irrigation system, as shown on Exhibit "A," attached hereto and thereby incorporated in this License. 2. Irrevocable Use: It is understood and agreed by the parties hereto that the rights granted to the COUNTY hereunder are irrevocable and may not be terminated except by an express written release by the COUNTY. 3. Property Maintenance: COUNTY shall remove litter, weeds and other vegetation from the Property on a periodic basis and abate weeds to local fire district standards. 4. Trail Improvement and Maintenance: COUNTY shall have the right, at its expense, to construct the Trail Improvements and operate the Trail on the Property. Except as otherwise provided by Section 5 hereof, County shall also have the right to exclude vehicles from the Property. Except as otherwise provided herein, COUNTY shall maintain at its expense all Trail Improvements installed by COUNTY. 5. Vehicle Access to Property: a. LICENSOR has used the Property for ingress and egress since the easement was granted. Upon commencement of the construction of the Trail Improvements, LICENSOR shall cease using the Property. b. In the event that LICENSOR wishes to recommence use of any portion of the Trail for the ingress or egress of vehicles under the terms of the CLAEYS Easement, LICENSOR shall notify the COUNTY of its intention to begin using the Easement for that purpose, including but not limited to, the reason for the proposed use, the type of use and the location and extent of the proposed ingress or egress, no less than ninety days prior to commencing such vehicle ingress or egress. Following delivery to COUNTY of such notice, LICENSOR and COUNTY shall meet and confer to determine whether any modifications need to be made to the Trail Improvements to accommodate LICENSOR's use of the Trail for vehicle ingress or egress. Prior to commencing vehicle use of the trail, LICENSOR shall install, at his cost, any signage or paving or related matters ("collectively referred to as protective measures') reasonably determined by the COUNTY to be necessary for the protection of the trail users. Absent such notice and good faith meeting to confer about the trail use and protective measures, LICENSOR shall not use the Trail for Page 2 of 6 vehicle access for the duration of this License without the prior written consent of COUNTY. C. LICENSOR shall not construct any improvements on any portion of the Trail without the prior written consent of COUNTY and DISTRICT, which consent shall not be withheld unreasonably. COUNTY and DISTRICT shall consent to the construction of improvements reasonably necessary for LICENSOR to make use of the CLAEYS easement, provided that they do not interfere with the use of any portion of the Trail or pose a safety hazard to users of the Trail. 6. Damage to Landscaping and Irrigation Systems: It is understood and agreed by and between the parties hereto that LICENSOR may remove or damage certain Trail Improvements in the use of the CLAEYS Easement for vehicle ingress or egress. If use of the CLAEYS Easement by LICENSOR, their successors or assigns, results in the removal of or damage to the surface of the trail or to any of the trees, shrubs, ground cover, grasses or related irrigation systems that were planted as part of the Trail, LICENSOR shall replace them in locations reasonably acceptable to the COUNTY,within the Property, or on adjacent property owned by District or by the Licensor, at the discretion of and as directed by County, as follows: (a) Each tree shall be replaced at a ratio of 1:1 within 200 feet of its original location. Replacement trees shall be identical in species and variety to those removed, and minimum fifteen (15) gallon in size. (b) Shrubs, ground cover and/or grasses shall be replaced at a ratio of 3:4 (i.e., three plants must be replaced for every four plants removed) with plants identical in species and variety to those removed and, at a minimum, the same size as those originally planted. (c) An irrigation system which is compatible with and connects to the then existing Trail irrigation system shall be installed to irrigate the replacement plantings, and shall be maintained by LICENSOR for a period of ninety (90) days. (d) LICENSOR shall repair any damage caused by LICENSOR to the surface of the trail by LICENSOR, or LICENSOR'S agents, contractors, invitees or employees. 7. Indemnification: COUNTY shall each indemnify, save, protect, defend, and hold harmless LICENSOR from and against its share of any loss, liability, expense, claims, cost, suit or damages, including attorney's fees arising out of the negligent acts, errors or omissions of COUNTY or its respective officers, agents or employees or members of the public using the Trail for public trail purposes, save and except claims, costs or liabilities arising out of or connected with the negligent acts, errors or omissions or use of the Property by LICENSOR, or LICENSOR'S agents, contractors, invitees or employees. Page 3 of 6 0,6 8. Future Development of Appurtenant Property. In the event that the LICENSOR develops property owned by LICENSOR appurtenant to the subject Property, and park land dedication requirements or in lieu park fees are imposed or assessed as a condition of the development of that appurtenant property, COUNTY will evaluate and consider the rights conveyed to COUNTY pursuant to this License Agreement during the process by which the fees or dedication requirements are determined. However, the extent to which this License Agreement shall be considered in that process shall be a matter to be finally determined by the COUNTY in its sole discretion. 9. Successors and Assigns: 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. 10. Modification: This License shall be subject to modification or amendment only by the written, mutual consent of all parties. 11. Notice: a. All notices under this License shall be in writing. Notice shall be sufficiently given for all purposes as follows: (1) When delivered by first class mail, postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States Mail. (2) When mailed by certified mail with return receipt requested, notice is effective on receipt if delivery is confirmed by a return receipt. (3) 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. (4) 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. (5) When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered. Page 4 of 6 b. The place for delivery of all notices given under this License shall be as follows: LICENSOR: David Claeys P.O. Box 1177 Kenwood, CA 95452 Telephone- (707) 833-2702 Facsimile - (510) 833-2702 COUNTY AND FLOOD CONTROL DISTRICT: Contra Costa County Attn: Real Property Division 255 Glacier Drive Martinez, CA 94553 Telephone - (510) 313-2220 Facsimile - (510) 313-2333 or to such other addresses and facsimile numbers as any party may respectively designate by written notice to the others. 12. Construction: This License shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. The parties to this License and their counsel have read and reviewed this License and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this License. 13. Severability: If any term or provision of this License shall, to any extent be held invalid or unenforceable, the remainder of this License shall not be affected. 14. Entire Agreement: Except as provided in this Agreement, the easement conveyed by the Deed identified above remains in full force and effect as originally conveyed. It is understood that this document, together with the above-referenced Deed between the DISTRICT and the LICENSOR and the license between the COUNTY and the DISTRICT contain the entire agreement between the parties hereto relating to their respective rights to use the Property and any other understandings or agreements, oral or written, of whatsoever nature concerning the matters contained herein are superseded by this License and are hereby abrogated and nullified. The foregoing not withstanding, nothing contained herein shall be deemed to amend or nullify any of the terms of the license granted to COUNTY by DISTRICT as between those parties. The parties to this Agreement acknowledge and represent to one another that this is a valid, binding and enforceable agreement and agree never to attack, set aside, void, abrogate or annul this Agreement on the grounds that it is not a valid, enforceable and binding agreement. Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have executed this License, in duplicate, the day and year first above written. CONTRA COSTA COUNTY CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BBy Chair, Board of Supervisors Chair, Board of Supervisors ATTEST: a l (q 9 7 Phil Batchelor LICENSOR Cleric of the Board of Supervisors and County Administrator By By Tr tee, Ruth T. Claeys Living Trusf Approved as to form: By Victor J. Westman David R. Ciaeys County Couns By Deputy ATTACH APPROPRIATE ACKNOWLEDGMENTS SLA25 VLAELIC3.CLN December 16,1996 Page 6 of 6 c,5 IN WITNESS WHEREOF, the parties hereto have executed this License, in duplicate, the day and year first above written. CONTRA COSTA COUNTY CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT By �� By 0 qy-(C ,,- Chair, Board of Supervisors Chair, Board of Supervisors ATTEST: ��o�.-a.l� {9°I 7 Phil Batchelor 0 LICENSOR Clerk of the Board of Supervisors and County Administrator Truste Ruth T. Claeys Living Trust Approved as to form: By Victor J. Westman David R. Claeys County Counsel / By Deputy ATTACH APPROPRIATE ACKNOWLEDGMENTS SLAMAACLAELICICLN December 16,1996 STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) On January 21, 1997 before me, Phil Batchelor, Clerk of the Board of Supervisors and County�Aqdministrator, �FoM RstiCpunty, personally appeare&upervisor r eau neer who is personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted,executed the instrument. By: �d" 1: Djuty Clerk Page 6 of 6