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HomeMy WebLinkAboutMINUTES - 12141999 - C18 TO: BOARD OF SUPERVISORS, AS THE GOVERNING BODY OF THE CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATIONDISTRICT FROM: J. MICHAEL WALFORD, CHIEF ENGINEER DATE: December 1 4, 1 999 SUBJECT: LICENSE AGREEMENT WITH MANN TRUST FOR ACCESS TO A PORTION OF GRAYSON CREEK SERVICE ROAD — PACHECO AREA Project No.: 7520-688377 Task: ACQ Account: 3549 1. Recommended Action: APPROVE License Agreement with Robert T. Mann and Audrey R. Mann Trust and AUTHORIZE Board Chair to execute said License on behalf of the Flood Control District. 11. Financial Impact: Annual revenue of$4,000.00. Continued on Attachment: X SIGNATURE: —RECUMMIF411A ION OF OUNTY AD ISTRATOR _RECOMMENDATION OF BOARD COMMITTEE —APPROVE —OTHER SIGNATURE(S): A N OF BOARD ON DECEMBER 14, 1 OPPRO ED AS RECOMMENDED ;OTHER VOTE OF SUPERVISORS i hereby certify that this is a true and correct X UNANIMOUS (ABSENT None ) copy of an action taken and entered on the AYES: NOES: minutes of the Board of Supervisors on the ABSENT: ABSTAIN: date shown. DECEMBER 14, 1999 ATTESTED; PHIL BATCHELOR,Clerk of the Board of NW:eh G:\GrpData\RealProp\1999-Files\BOs&RES\BOMann.doa Supervis and County Administrator Ong. Div: Public Works(R/P) By Deputy Contact: Nancy Wenninger (313-2227) cc: County Administrator Auditor-Controller(via R/P) P.W.Accounting License Agreement with Mann Trust for Access to a Portion of Grayson Creek Service Road. December 14, 1999 Page 2 III. Reasons for Recommendations and Background: The Robert T. Mann and Audrey R. Mann Trust owns a commercialshopping center on the southwesterly corner of the intersection of Center Avenue and Pacheco Boulevard in Pacheco. The improvements on the property were constructed quite close to the property line adjacent to the Flood Control district's Grayson Creek service road. The owners have requested permission to use a portion of the service road for delivery of supplies, storage of a dumpster and garbage removal, and ingress and egress purposes. As a condition of the above-referenced License Agreement, the owners agree to pay an annual license fee of$4,000 and 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 the use of the District's property will not be in force, and problems will continue with unauthorized access and use of the service road. License A,greement GRAYSON CREED MANN LICENSE AGREEMENT THIS AGREEMENT is made and entered into this J� ay of A � 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 the ROBERT T. MANN AND AUDREY R. MANN TRUST, hereinafter called "LICENSEE." WL ESSETH: THAT LICENSEE owns and operates a commercial shopping center on APN 125-077-018, located at the southwesterly comer of the intersection of Center Avenue and Pacheco Boulevard, adjacent to Grayson Creek in the unincorporated community of Pacheco ("Shopping Center"). LICENSEE has requested permission to use a portion of Grayson Creek Channel's service road adjacent to the shopping center for ingress and egress for deliveries and short-term parking not to exceed thirty (30) minutes. DISTRICT, in 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 to use a portion of DISTRICT's property, as shown on the attached map and hereinafter referred to as "the Access,"for use by LICENSEE and LICENSEE's Tenants for temporary parking (thirty minutes maximum) for delivery of supplies, storage of a dumpster and garbage removal, and ingress and egress purposes. 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 Grayson Greek, located in the unincorporated community of Pacheco. As used in this License, "the Access" shall refer to a portion of the service road 20' wide and extending 200' south from Center Avenue along the easterly embankment of Grayson Creek, shown on the map attached hereto as Exhibit"A" and incorporat- ed ncorporated herein by this reference. As used in this License, "Tenant" shall mean any person or entitywho leases, uses or occupies any portion of the Shopping Center under agreement with or with the consent or knowledge of Licensee. Page 1 of 7 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. 3. Term: Unless suspended, revoked or partially revoked as hereinafter set forth,this License shall terminate five years from its effective date. 4. Fee: As consideration of this License, LICENSEE agrees to pay a nonrefundable fee of Four Thousand and No/100 Dollars ($4,000.00) per year, payable in advance on the anniversary date of this agreement. 5. 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 DISTRICTs right to use the Access for emergency or maintenance vehicle access or any other purpose. LICENSEE agrees to store above-referenced dumpster as close as possible to the rear wall of the adjacent building so that the service road is not obstructed. 6. 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 ether 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. 7. Revocation: The rights granted hereunder may be immediately revoked by the DISTRICT upon a breach of any term of this agreement and shall be automatically revoked at the end of the term of this License, unless this License is superseded or Page 2 of 7 amended in writing to extend the term. Upon revocation, the DISTRICT shall erect a fence along the Property line. The installation or construction of any equipment or fixtures by LICENSEE pursuant to this agreement shall not render this revocable license irrevocable, and shall not be construed to effect a conveyance of any property right to LICENSEE. 8. Maintenance and Litter: During the term of this License, LICENSEE shall maintain the Access 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 appearance 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. 9. 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 the use of the Property by LICENSEE, its employees, agents, servants, contractors, tenants, subtenants, licensees, concessionaires, and invitees, 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 lass, 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 the operations, acts or omissions of LICENSEE, its employees, agents, servants, contractors, tenants, subtenants, licensees, concessionaires, and invitees, 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. Page 3of7 10. 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 use of the Property 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 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 talo 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 Compre- hensive 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) Centra 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; Page 4of7 (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. 11. 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. 12. 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. 13. 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, its agents, employees, servants, contractors, tenants, subtenants, licensees, concessionaires, or invitees 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 agents, employees, servants, contractors, tenants, subtenants, licensees, concessionaires or invitees, 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, and shall further defend and hold harmless from and against any and all liability, loss, damage, costs, penalties, fines or expenses arising out of or connected with such act. 14. Access Maintenance: LICENSEE agrees to pave the Access and install a guard rail or other approved protective barrier along the top of bank. LICENSEE also agrees to construct a fence and gate, subject to the review and approval of Page 5 of 7 DISTRICT, which traverses the Acess at the southerly limits of LICENSEE's use to prevent access of unauthorized vehicles. LICENSEE further agrees to install and maintain "No Parking" signs with towing information within the Access, subject to the review and approval of DISTRICT. 15. Vandalism: LICENSEE shall, at its own expense, promptly repair all damage to Access, 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: (925) 313-2220 Facsimile: (925) 313-2333 If to the LICENSEE: Robert T. Mann 180 Montgomery Street, Suite 1200 San Francisco, CA 94104 Telephone: (415) 9891200 Facsimile: (415)477-3636 Page 6 of 7 19, Enure 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. Contra Costa County Flood Robert T. Mann & Control Water Conservation District Audrey R. Mann Trust By: gY: � ,J y v> : r Ch "War of Supervisors Robert T. Mann Trustee Attest: Phil Batchelor By ;r , ` Clerk of the Board of Supervisors Audrey Mann and County Administrator Trustee Approved as�00 rm Victor J. 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