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Home My WebLink AboutMINUTES - 10071997 - C1 TO: BOARD OF SUPERVISORS FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR DATE: OCTOBER 7, 1997 SUBJECT: BAY POINT FEEDER TRAIL SUBLICENSE AGREEMENT - BAILEY ROAD TO BELLA VISTA AVENUE - BAY POINT AREA Project No.: 4660-6X4148 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION I. Recommended Action: APPROVE Sublicense Agreement with East Bay Regional Park District and AUTHORIZE the Board Chair to execute said sublicense on behalf of County. 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 /0- 0-7 - 9 9 7 APPROVED AS RECOMMENDED_OTHER • VOyE OF SUPERVISORS �/ UNANIMOUS (ABSENT ) AYES: NOES: ABSENT: ABSTAIN: NW:gpp g:\realprop\97-10\1307-10.wpd Orig. Div: Public Works(R/P) Contact: N.Wenninger(313-2227) cc: County Administrator t hereby ON*rose lift Is a true and correct OM Of of the P.W.Accounting Boaerd�oi sa kanieors cn the date the n Ind PHIL BATCHELOR,Clerk o Ih board of Supendsae and County Adminlatraw III. Reasons for Recommendations and Background: The above agreement allows the County to construct and operate a feeder trail on a portion of the East Bay Municipal Utility District's Mokelumne Aqueduct property, under the auspices of a license agreement between EBMUD and the East Bay Regional Park District. The feeder trail is planned as part of a local trail network serving pedestrian and bicycle traffic for recreation and commuter purposes. The subject trail segment creates a link between the Delta De Anza Trail and local streets. IV. Consequences of Negative Action: The County will be unable to construct this portion of the trail. SUBLICENSE (MOKELUMNE AQUEDUCT) EAST BAY REGIONAL PARK DISTRICT TO CONTRA COSTA COUNTY Bailey Road to Bella Vista Avenue Bay Point THIS SUBLICENSE AGREEMENT, (hereinafter "Agreement") is made and entered into this day of , 1997, by and between the Sublicensor, EAST BAY REGIONAL PARK DISTRICT, a California special district, hereinafter called the "District,"and the Sublicensee, COUNTY OF CONTRA COSTA, a political subdivision of the State of California, hereinafter called "County." RECITALS A. East Bay Municipal Utility District, hereinafter called "EBMUD" is the owner of certain real property within the limits of Contra Costa County which is used primarily to accommodate EBMUD's underground Mokelumne Aqueduct pipelines, hereinafter called the "Mokelumne Aqueduct property." B. On December 30, 1993, EBMUD and District entered into a License Agreement (hereinafter called the 1993 License"), the terms and conditions of which are incorporated herein by this reference, permitting the District to use the surface portion of the Mokelumne Aqueduct property for trail and landscaping purposes (hereinafter referred to as "District Trail"). District represents and warrants that EBMUD has approved the conveyance of this Sublicense to County upon the terms and conditions entered herein. C. It is the intention of District and County, under the terms and conditions of this Agreement, that the County be given the right to use a portion of the Mokelumne Aqueduct property located within the District Trail area, from Bailey Road to Bella Vista Avenue, as depicted on the map attached hereto as Exhibit "A" for the purposes of constructing, reconstructing, removing, repairing and maintaining a trail for the use and benefit of the public for the passage of pedestrians, bicycles and maintenance and public safety vehicles, with all necessary appurtenances thereto. The portion of the District Trail to be used by.the County pursuant to this Agreement shall be referred to herein *as the "County Trail." It is anticipated that, when constructed, the County Trail will be an approximately 32-foot wide corridor within the Mokelumne Aqueduct property. Following construction of the County Trail, the County's rights and responsibilities under this Agreement will be limited to that 32-foot wide corridor. 1 AGREEMENT NOW THEREFORE, the County and the District agree as follows: 1. CONVEYANCE TO COUNTY a. District, for good and valuable consideration the receipt of which is hereby acknowledged, and in further consideration of the faithful performance and observance by County of all of the covenants and agreements contained herein, does hereby give to County the right to use a portion of the District Trail, from Bailey Road to Bella Vista Avenue, as depicted on the map attached hereto as Exhibit A, for the purposes of constructing, reconstructing, removing, repairing, and maintaining a trail for the use and benefit of the public for the passage of pedestrians, bicycles and for maintenance and public safety vehicles, with all necessary appurtenances thereto. It is anticipated that, when constructed, the County Trail will be an approximately 32-foot wide corridor within the Mokelumne Aqueduct property. Following construction of the County Trail, the County's rights and responsibilities under this Agreement will be limited to that 32-foot wide corridor. With the exception of the foregoing, the District shall retain all other rights, privileges and obligations under the 1993 License. b. Subject to full compliance with this Agreement, County may permit the construction, reconstruction, removal, repair or maintenance of the County Trail to be performed by or at the expense of third parties providing that, except as otherwise provided herein, County shall not be relieved of any responsibility for the proper construction and maintenance of the County Trail. 2. SIGNS AND MAINTENANCE In addition to the foregoing rights, County shall have the right to install appropriate trail markings and signs. County's sole obligation to maintain the County Trail shall be to maintain an area within 16 feet of the centerline of the actual County Trail as constructed (i.e., the 32-foot wide corridor). All other maintenance obligations shall remain with the District or EBMUD, as specified in the 1993 License. 3. PROHIBITED USES Neither the County nor the District shall authorize any commercial or industrial activities to be conducted on the County Trail. With the exception of the signs and markings permitted by Paragraph 2 of this Agreement, neither the County nor the District shall authorize any advertising or identification signs or displays, merchandise storage and exhibition or promotional activities on the County Trail. Neither the County nor the District shall permit any type of motor vehicle to be 2 driven or parked on the County Trail, except those of County, EBMUD or District being used for maintenance, patrol or public safety purposes. 4. MASTER LICENSE This Agreement is subject to the terms and conditions of the 1993 License. County hereby acknowledges the title of EBMUD in and to the Mokelumne Aqueduct property and agrees never to assail or resist said title nor to acquire any rights or interest in said real property except through the lawful exercise of eminent domain proceedings. Neither County nor District have or claim any right to use the Mokelumne Aqueduct property beyond those specifically given in the 1993 License. County has received a copy of the 1993 License and agrees to abide by all terms of the 1993 License where applicable. County and District agree that if the terms and conditions of this Agreement should conflict with or be inconsistent with those of the 1993 License, the terms and conditions of the 1993 License shall prevail. 5. SUBORDINATE USE The Mokelumne Aqueduct property accommodates EBMUD's underground pipelines, necessary in the performance of its duties as a supplier of municipal water. Any and all rights granted or implied by this Agreement are limited to use of the surface of said property for the uses described herein and shall be subordinate to EBMUD's use of the property and to EBMUD's right to convey rights to third persons in said property for other, different or additional purposes not inconsistent with this Agreement. The construction, reconstruction, maintenance, removal and repair of the County Trail by County shall at no time and in no way whatsoever interfere with the operations of EBMUD. 6. APPROVALS a. Prior to the initial construction of the County Trail or any reconstruction thereof performed by County on the Mokelumne Aqueduct property, County shall submit detailed plans to District. County shall not proceed with such work without the prior written approval of District's Chief Engineer. District shall review the plans and specifications in a timely fashion and approval shall not be unreasonably withheld. b. District shall have the right to have an inspector at the site of the County Trail during the construction of the County Trail. County agrees to pay to District, upon demand, the reasonable cost incurred by District to have an inspector at the site of the County Trail during the construction of the County Trail. 3 7. TEMPORARY CLOSURE OF COUNTY TRAIL EBMUD has the right to request District to close portions of the County Trail temporarily, upon ten (10) days prior written notice, in the event that it is necessary to repair, install, maintain or reconstruct its underground Mokelumne Aqueduct pipelines. District shall provide County with as much advance notice as is reasonably possible of the County Trail closure. In event of a County Trail closure, the County Trail shall remain closed until the necessary work is completed. District shall provide the County and District with written notice of the date the County Trail may be reopened. 8. TERMINATION AND ABANDONMENT a. If the 1993 License should terminate for any reason, by abandonment, revocation or otherwise, this Agreement shall also terminate, provided that District provides County with a copy of any notice of revocation, termination or nonperformance it receives from EBMUD which may affect the County Trail. Upon such termination of this Agreement County shall have no claim whatsoever upon District for the reimbursement of any County cost in exercising County's rights under this Agreement. b. The District may not terminate or revoke this Agreement, except in the event of abandonment or default by County, unless EBMUD first terminates the 1993 License. District shall provide County with one (1) year's written notice prior to abandoning any portion of the District Trail which may affect the County Trail. C. If County fails to maintain the County Trail or any portion thereof for a period in excess of one (1) year, District may send to County a written Notice of Belief of Abandonment. If County fails to respond to said Notice or fails to commence maintenance of the County Trail, or the portion specified in the Notice, within 90 days following the delivery of said Notice to County, the County Trail or the portion specified in the Notice shall be deemed abandoned by the County. d. If County breaches any material term of this Agreement and, after thirty (30) days written notice from District to do so, fails to correct or commence correction of said breach, then District shall have the right to terminate this Agreement. e. The County shall have the right to terminate this Agreement, with or without cause, upon thirty (30) days prior written notice to District. Upon revocation or termination of this Agreement or abandonment of all or part of the County Trail, and unless the County Trail or the abandoned portion has reverted to the District, District shall have the right, within ninety (90) days following such abandonment termination or revocation, to request County to remove from the Mokelumne Aqueduct property, or the portion abandoned, at County's sole expense, such 4 portions of the County Trail improvements as District may demand. In addition, if requested by District to do so within said ninety (90)-day period, County shall also restore said real property to as near its original condition as possible. If the County fails to remove the County Trail improvements within ninety (90) days after receipt of written notice from District to do so, said improvements may be removed by District at the County's expense which expense County agrees to pay District promptly upon demand. f. Upon revocation or termination of this Agreement or abandonment of all or part of the County Trail, all rights of County in and to the County Trail, or such portion as has been abandoned, shall terminate and sole right, obligation and privilege to use the subject property under the 1993 License, shall revert to District, unless the 1993 License has been revoked or terminated by EBMUD. 9. INSURANCE AND HOLD HARMLESS a. County is self-insured for bodily and personal injury, liability and property damage. County agrees to indemnify, save, protect and hold harmless District, its directors, officers and employees, from and against all loss, damage, liability, expense, claims or demands, of whatever character, direct or consequential directly or indirectly contributed to or caused by the County's negligent acts or omissions under this Agreement or otherwise related to the County's construction, reconstruction, repair, maintenance or removal of the County Trail. b. District is self-insured for bodily and personal injury, liability and property damage. District agrees to indemnify, save, protect and hold harmless County, its directors, officers and employees, from and against all loss, damage, liability, expense, claims or demands, of whatever character, direct or consequential directly or indirectly contributed to or caused by the District's negligent acts or omissions under this Agreement or otherwise related to the District's construction, reconstruction, repair, maintenance, removal, operation or patrol of the County Trail or the District Trail. 10. ASSIGNMENT; SUCCESSORS; THIRD-PARTY BENEFICIARIES This Agreement may not be assigned without the prior written consent of all parties. Subject to that restriction, the terms, conditions, covenants and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto. Subject to the foregoing, nothing in this Agreement is intended or shall be construed to create rights in any third person not a party to this Agreement. 5 11. NOTICES All notices to be given under this Agreement shall be in writing and sent by: (i) first class mail, postage prepaid, in which case notice shall be deemed delivered three (3) business days after deposit in the United States Mail; (ii) a nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with that courier, or (iii) telecopy or similar means, in which case 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. The place for delivery of all notices given under this Agreement shall be as follows: District: 2950 Peralta Oaks Ct. P.O. Box 5381 Oakland, CA 94605 Attn: Land Department FAX (510) 569-1417 County: Public Works Department 255 Glacier Drive Martinez, CA 94553 Attn: Right of Way Division FAX (510) 313-2333 or to such other addresses as County or District may respectively designate by written notice to the others. 12. ENTIRE AGREEMENT This Agreement contains the entire agreement between the parties to this Agreement and, with the exception of the 1993 License, all prior understandings or agreements, oral or written of whatsoever nature regarding the matters contained herein are superseded by this Agreement and are hereby abrogated and nullified. This Agreement shall not be modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest. 6 13. CONSTRUCTION The section headings and captions of this Agreement are, and the arrangement of this Agreement is, for the sole convenience of the parties to this Agreement, The section headings, captions and arrangement of this instrument do not in any way affect, limit, amplify or modify the terms and provisions of this Agreement. The parties to this Agreement and their counsel have read and reviewed this Agreement 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 Agreement. EAST BAY REGIONAL PARK DISTRICT COUNTY OF CONTRA COSTA a California special district apolitical subdivision of the State of California By: By: belh'eral Manager Chair, Board of Supervisors By: L 1j4&4.,n-p Attest: 10 --o-7-97 - Secretary Phil Batchelor �, J Clerk of the Board of Supervis- 'yrs d' and County Administrator �e Approved as to rm:6 wl, Victor J. Westman County Counsel By: i� S NW:glo:rs g:Veal prop\97-4\\mokelumn.wpd April 1, 1997 7 �:� �� r� .'� i 1� ■ . .. = �■ �� ,.��CII�■ ■� �: ■� •fes' ■- •� • MIN . �:mow:.-�i�/►,� � ��■■ . � .■■ �� s. . ■ 0