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HomeMy WebLinkAboutMINUTES - 02091993 - 2.5 . ,01 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: February 9, 1993 SUBJECT: Approve and Authorize the Chair, Board of Supervisors to Grant an Easement and Execute an Agreement with the East Bay Regional Park District for Construction, Operation, and Maintenance of the Wildcat Creek Trail. (North Richmond Area) +, F SPECIFIC REQUEST(S) OR RECOMMENDATION(S) &BACKGROUND AND JUSTIFICATION I. Recommended Action: APPROVE and AUTHORIZE the Chair, Board of Supervisors to execute an agreement with the East Bay Regional Park District (EBRPD) that grants a permanent easement for the Wildcat Creek Trail (Trail) and sets forth the basic terms and conditions under which EBRPD shall construct, maintain, and operate Phase I of the Trail, located within Contra Costa County Flood Control and Water Conservation District (District) right of way in the North Richmond area. II. Financial Impact: There are no District costs required for the construction, operation, and maintenance of the Trail. III. Reasons for Recommendations and Background: Development of the Trail along the Wildcat Creek Flood Control Project in North Richmond,.has long been, and continues to be, a goal of the EBRPD and is supported by the District. Construction of the Trail will create opportunities for recreation and will be an enhancement to the area. Continued on Attachment: x SIGNATURE: IIIM6401tc _ RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON FEB 9 1993 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS V UNANIMOUS (ABSENT ) AYES: NOES: ABSENT: ABSTAIN: hereby certify that this Is a true and correct copy of . an action taken and entered on the minutes of trra JJ:jlg Board of Supervisors on the date shown. c\BO:bo9.t2 ATTESTED: FEB 9 1993 Orig. Div: public Works(Design Division) PHIL BATCHELOR.cierk of the Board Contact: John Johnson (313-2311) Of Supervisors and Cou Administrator cc: East Bay Regional Park District n County Administrator ey Qa ! =Q�-�--,Deputy Attn: E. Kuevor Auditor-Controller PW Accounting qY > �l.rfli`M 1:�1 tt r fx}..��� �fr✓r ` F.�i� ]" 1. 4:,T bill vi ?ir.=U'-. sE�tc) DIF, baa:���rsf 1r;}17Dt,3.tiC..:'tr{e'?I hic`S ,llti� ;staztaitiirttbA.�l�wc;",br";r�'aalvx; �:'?1� Approve and Authorize the Chair, Board of Supervisors to Grant an Easement and Execute an Agreement with the East Bay Regional Park District for Construction, Operation, and Maintenance of the Wildcat Creek Trail. (North Richmond Area) Page 2 February 9, 1993 The construction of the Trail will be jointly funded by the EBRPD and the U.S. Army Corps of Engineers (Corps). The EBRPD has committed to operate and maintain the Trail. The District is the owner of the real property which has been designated for the Trail and this property is encompassed within the Wildcat-San Pablo Creeks Flood Control Project right-of-way. On November 27, 1990 the Board adopted Resolution No. 90/745, approving an agreement between the EBRPD and the District whereby a permanent easement for the Trail was granted to the EBRPD. The 1990 agreement was required for the EBRPD to demonstrate to the Environmental Enhancement and Mitigation Program (Proposition 111) that it had land tenure for the Trail and was thus eligible for grant money. The 1990 agreement also stipulated that, before construction of the Trail, a subsequent agreement be executed between the EBRPD and the District, setting forth.the legal descriptions of the permanent easement and detailing the operations and maintenance requirements for the Trail. The purpose of the attached "Grant of Easement and Agreement for Construction, Operation and Maintenance of Recreational Trail' is to grant the permanent easement for the Trail, including legal descriptions, and to set forth the basic terms and conditions under which PARKS shall construct, maintain and operate Phase I of the Trail. The attached agreement supersedes the 1990 agreement. IV. Consequences of Negative Action: If the agreement is not executed, the Trail cannot be constructed. recorded at the request of: Contra Costa County Flood Control and Water Conservation District Return to: Contra Costa County Public Works Department Real Property Division 255 Glacier Division Martinez, Ca 94553 Attention: GRANT OF EASEMENT AND AGREEMENT FOR CONSTRUCTION, OPERATION, AND MAINTENANCE OF RECREATIONAL TRAIL BETWEEN CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT AND EAST BAY REGIONAL PARK DISTRICT FOR WILDCAT CREEK TRAIL/FLOOD CONTROL PROJECT 1. PARTIE . Effective on the day of 1993, the Contra Costa County Flood Control and Water Conservation District, a political subdivision of the State of California, hereinafter called the "DISTRICT', and the East Bay Regional Park District, a California special district, hereinafter called "PARKS", in consideration of the mutual promises and covenants of the parties, hereby agree as follows: 2. PURPOSE. Development of the Wildcat Creek Trail along the Wildcat Creek Flood Control Project in North Richmond, hereinafter called the 'Trail", has long been, and continues to be, a goal of PARKS and is supported by DISTRICT. Construction of the Trail will create opportunities for recreation and will be an enhancement to the area. Construction and operation of the Trail is authorized and required by the State of California, San Francisco Bay Conservation and Development Commission (BCDC), by BCDC's Permit No. 2-86, issued to DISTRICT and PARKS as co-permittees. The two-phased construction of the Trail will be jointly funded by PARKS and the U.S. Army Corps of Engineers (Corps). PARKS has committed to operate and maintain the Trail. DISTRICT is the owner of the real property which has been designated for the Trail and this property is encompassed within the Wildcat-San Pablo Creeks Flood Control Project right-of-way. The purpose of this Agreement is to grant an easement for the Trail and to set forth the basic terms and conditions under which PARKS shall construct, maintain and operate Phase I of the Trail. 3. DEFINITIONS. As used in this Agreement, the "Property" shall refer to that portion of DISTRICT'S property and easements described in the maps attached as Exhibit "A" and the legal descriptions attached as Exhibit "B" lying along the Wildcat Creek portion of the Wildcat-San Pablo Creeks Flood Control Project, from the project terminus at Wildcat Creek Marsh west of Garden Tract Road, upstream to the Southern Pacific Railroad (SPRR) right-of-way. As used in this Agreement, the"Trail"shall refer to the trail easement granted hereunder which lies within the Property and is described in the maps attached as Exhibit"A" and the legal descriptions attached as Exhibit "C", and to the trail facilities as allowed hereunder. Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 2 As used in this Agreement, the "Maintenance Corridor" shall refer to the corridor within which the Trail is located and which is bounded as described herein. At any location along the Trail the northern boundary of the Maintenance Corridor shall be described as the most southerly of the following: the northern right-of-way line of the Property, the northern fence line, or the toe of the fill slope (where the Trail is located on a levee). At any location along the Trail the southern boundary of the Maintenance Corridor shall be described as the most southerly of the following: the toe of the creek bank and the outside of the floodwall of the pedestrian undercrossing. Where the Trail is located above a lower service road, the toe of the creek bank shall mean, so far as the definition of the Maintenance Corridor is concerned, the intersection of the creek bank with the lower service road. 4. GRANT OF TRAIL EASEMENT. In consideration of the mutual covenants herein contained, DISTRICT grants to PARKS, a permanent, perpetual, exclusive easement for limited use in the construction, maintenance, and operation of a recreational trail, including, but not limited to, the following trail facilities, hereunder referred to as Phase 1: trail surface improvements; landscaping; a marsh observation platform; a pedestrian undercrossing; and various public access improvements such as benches, trash containers, and public access signs. The Trail shall be made available to the public for public access for passive recreational uses such as walking, bicycling, sitting, viewing, picnicking, and related purposes. Such rights shall be permanently guaranteed and shall run with the land and be binding on any subsequent purchasers, lessees, licensees, and users. PARKS hereby acknowledges that the granted easement does not include an easement for the portion of the Trail which will lie within lands leased by the DISTRICT from the California State Lands Commission (SLC), SLC Lease No. PRC 7099.9. However, to the extent the SLC consents in writing to PARKS' use of the leased premises for the construction, operation and maintenance of a public trail, PARKS shall have the right to use the leased premises for such use, subject to the compliance by PARKS with all provisions of this Agreement and all applicable terms and conditions of DISTRICTs SLC lease during construction, operation and maintenance of the Trail. 5. LEGAL DESCRIPTIONS. The legal descriptions and maps in the attached Exhibit "B" have been prepared by DISTRICT at PARKS' request, approved in writing by DISTRICT, and were based on improvement plans provided by PARKS. PARKS shall be responsible to reimburse DISTRICT for all costs incurred by DISTRICT in preparing said legal descriptions and maps within thirty (30) days of receipt of each progress billing from the DISTRICT. Within 30 days after completion of the Trail's construction, PARKS shall provide DISTRICT with results of a survey of the"as-constructed"improvements,where said improvements deviate outside of the easement. Said survey shall be prepared by a licensed surveyor and showing coordinates, bearings, distances, and other dimensions necessary to finalize the legal descriptions and maps. PARKS shall be responsible to prepare, or have prepared by DISTRICT at PARKS' expense, the final legal descriptions and maps. In the event DISTRICT prepares final legal descriptions and maps, PARKS shall be responsible to reimburse DISTRICT for all costs incurred by DISTRICT within thirty (30) days of receipt of each progress billing from the DISTRICT. Within 30 days after completion of any approved relocation or modification of the Trail outside of the easement, PARKS shall provide DISTRICT with results of a survey of the "as-constructed" condition, prepared by a licensed surveyor and showing coordinates, bearings, distances, and other dimensions necessary to revise the legal descriptions and maps. PARKS shall be responsible to prepare, or have prepared by DISTRICT at PARKS' expense, the final legal descriptions and maps. In the event DISTRICT prepares final legal descriptions and maps, PARKS shall be responsible to reimburse DISTRICT for all costs incurred by DISTRICT within thirty (30) days of receipt of each progress billing from the DISTRICT. 6. TITLE OF DISTRICT. PARKS hereby acknowledges that the right; title and interest of DISTRICT in and to the Property are prior in time and paramount to any easement rights granted to PARKS and PARKS agrees never to assail or to question said title. PARKS agrees that it has not acquired nor will it hereafter acquire any rights or interest in the Property, with the exception of those rights granted herein, nor does PARKS have nor will it obtain any right or claim to the use of the Property beyond those specifically granted herein. Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 3 7. PRIMARY USE OF PROPERTY. The Property consists of a channel and appurtenant improvements which are 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. PARKS acknowledges that the use just described constitutes the primary use of the Property and that PARKS' use of the Trail pursuant to this Agreement is secondary and subordinate to said primary use. PARKS shall not, at any time, use or permit the public to use the Trail in any manner that will materially interfere with or impair said primary use of the Property. All rights granted to PARKS hereunder are subject to DISTRICT's right to use the Trail for emergency or maintenance vehicle access or any other purpose. In the event the Trail is physically damaged by a utility company during its construction or installation of a new facility on the Property, or during its subsequent maintenance, operation, or reconstruction of the new facility, and the Trail is not restored by the utility to its original condition, the utility shall reimburse PARKS in a timely manner for the costs incurred by PARKS to complete the restoration. The PARKS'Trail improvements and facilities within this area and the exercise of any rights granted hereunder shall in no way interfere with the DISTRICT's use of the Property or operation or maintenance of the Wildcat Creek Flood Control Project. In the event the PARKS' improvements and facilities do so interfere, PARKS shall, at the request of the DISTRICT, and at PARKS'sole cost and expense and to the reasonable satisfaction of the DISTRICT, commence modification or relocation of its constructed facilities, and/or trim trees, cut- shrubs and other public access landscaping installed by PARKS, within thirty (30) days after written notice to do so and shall diligently perform such work. In the event PARKS fails to do so, the DISTRICT may perform said work at the expense of PARKS, which expenses, including engineering costs and any legal costs and fees incurred in collection, PARKS agrees to pay to DISTRICT promptly upon receipt of invoice. Said modification or relocation of PARKS' constructed facilities and said trimming of trees, cutting of shrubs and other public access landscaping installed by PARKS shall not be performed by .PARKS, or by DISTRICT as allowed herein, unless the consent of BCDC is first obtained. PARKS shall cooperate fully with and assist DISTRICT in obtaining timely consent from BCDC. Such BCDC consent shall not be necessary in the event said modification or relocation of PARKS' constructed facilities is performed in an emergency. 8. PRIOR RIGHTS. This Agreement is subject to all existing rights, rights-of-way, reservations and easements held in and to said Trail area. It is understood that any prior rights granted by the DISTRICT in Wildcat Creek are prior in time and paramount to any easement rights granted to PARKS and PARKS agrees never to question or assail said prior rights: 9. RESERVED RIGHTS. Notwithstanding the exclusive nature of the easement granted to PARKS, DISTRICT shall at all times retain the right to use the easement area for any purpose not inconsistent with the recreational and public access purposes of the easement, including without limitation the right to use the easement area for flood control, water conservation and other authorized DISTRICT purposes and the right to convey utility easements and other land rights that do not substantially interfere with the public access nature of the property. Any proposed use of the easement area for purposes other than flood control and water conservation shall not occur unless the consent of BCDC is first obtained. PARKS shall cooperate fully with and assist DISTRICT in obtaining timely consent from BCDC. 10. DESIGN. PARKS shall be responsible for design of the Trail improvements, subject to written approval of the Corps. DISTRICT shall also have the right to review and approve in writing the Trail construction plans and specifications prior to advertising for construction. PARKS shall submit final Trail construction plans and specifications for DISTRICT review a minimum of 15 days prior to advertisement for construction. DISTRICT agrees to provide PARKS with written comments within 10 days of submission by PARKS to DISTRICT. No construction of Trail improvements shall be performed until the Corps and the DISTRICT have approved the plans and specifications in writing. The Trail design documents shall include provisions sufficient to require PARKS' contractor, at PARKS' expense, to protect all existing facilities in place including, but not limited to, irrigation facilities, drainage facilities, signage, fencing, and bridges and repair any damage to same in a manner acceptable to DISTRICT, and also to relocate any irrigation facilities in conflict with the Trail in a manner acceptable to DISTRICT. Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 4 11. CONSTRUCTION. PARKS shall be responsible for construction of the Trail. Any changes or deviations made in the design during construction shall be subject to written approval of the DISTRICT. Advertisement for construction shall not begin until this Agreement has been recorded as described in Section 33 below. 12. AGREEMENTS WITH CORPS AND STATE. PARKS shall comply with all applicable requirements of the agreements between DISTRICT and the Corps and DISTRICT and the State of California for the Wildcat-San Pablo Creeks Project. 13. ENCROACHMENT PERMITS. PARKS shall obtain an encroachment permit upon approval from the DISTRICT for any work within the DISTRICT property prior to construction of the Trail. PARKS shall obtain permits from all other agencies as required for construction of the Trails. DISTRICT shall have the sole right to grant encroachment permits or rights of entry within its right- of-way. Subsequent to the Corps' written approval of the completion of the construction of Phase I of the Trail, PARKS shall not perform any construction, reconstruction, remodeling, repair, removal or other work within the Trail without obtaining an encroachment permit from the DISTRICT and from all other affected agencies. Said permits shall be obtained 30 days prior to the work involved. Notification of encroachment permits and rights of entry granted to third parties, and plans of third parties approved by DISTRICT, will be forwarded to PARKS. DISTRICT shall consult with PARKS on safety requirements for future utilities and if PARKS has not responded within, 15 working days, then it is presumed PARKS is in concurrence. 14. APPROVAL AND INSPECTION OF WORK. PARKS shall not perform any construction, reconstruction, remodeling, repair, removal or other work within the Trail, without first obtaining DISTRICT's approval in writing of said work. In seeking DISTRICT's approval, PARKS shall furnish to DISTRICT a complete description and sketch of the work proposed to be performed. In performing work approved by DISTRICT, PARKS shall comply with all terms, conditions and requirements imposed by DISTRICT and shall not deviate in any material manner from the description and sketch approved by DISTRICT,without first obtaining additional approval in writing from DISTRICT. PARKS shall design, construct and maintain all facilities to provide continuous, unobstructed vehicle access which is twelve (12) feet wide and fourteen (14) feet high. DISTRICT has disclosed to PARKS that the primary use of the Trail area will include, but not be limited to, heavy construction and maintenance vehicles and equipment. PARKS agrees to assume all responsibility for the repair and maintenance of any damage of pavement and trail surfaces resulting from DISTRICT's operations and uses within the Trail, unless such maintenance or repair is the result of DISTRICT's negligence or willful misconduct. If, in the course of DISTRICT's use of the Trail area, damage to the Trail results from DISTRICT's operations and uses, including but not limited to, the weight of heavy construction and maintenance vehicles and equipment, the removal of debris, or other incident of normal maintenance or construction activities, DISTRICT shall not be responsible for such damage. PARKS further agrees to be responsible and liable for the Trail's condition until such repairs and maintenance are commenced. Notwithstanding the foregoing, PARKS shall not be required to obtain DISTRICT's prior written approval for the performance of routine maintenance or emergency repairs. As used in this section, the term "routine maintenance" refers to work that does not alter the original condition of improvements previously approved in writing by PARKS, which work is required to prevent deterioration of said improvements. As used in this section, the term "emergency repairs" refers to repairs that do not alter the original condition of improvements previously approved in writing by PARKS, which repairs are necessary to protect the safety of the public and others. Except in the case of emergency repairs or routine maintenance, PARKS shall consult DISTRICT at least seven (7) days before any major maintenance operations are performed by PARKS. Work shall be done in such a manner that DISTRICT shall at all times be able to use and gain access to its facilities. All work performed by PARKS under this section shall be subject to inspection by DISTRICT. Agreement for Construction, Operation and Maintenance of.Recreational Trail District/Parks Page 5 15. SUSPENSION OR LIMITATION OF USE. DISTRICT and its permittees shall have the right to suspend or to limit the use of the Trail by PARKS 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 PARKS fifteen (15) days' prior notice in writing except in cases of emergency maintenance or repairs. DISTRICT shall not be held responsible or liable for unavoidable damage or removal of any fences, gates, asphalt or concrete paving, landscaping, or other facilities which may be placed, installed, repaired, or constructed as part of the Trail when DISTRICT finds it necessary to accomplish work for the maintenance, construction, repair, reconstruction or alteration of DISTRICT property. However, DISTRICT will exercise reasonable care to minimize adverse impacts of such work upon PARKS' recreational facilities. 16. RESTRICTED USE. The rights granted hereunder are for pedestrian and bicycle use only. Equestrian use shall not be permitted on the Trail. No type of motor-driven vehicle shall be permitted on the Trail, except those of PARKS, DISTRICT or DISTRICT's permittees being used for construction, maintenance, repair, patrol, or public safety purposes. PARKS shall install such barricades as are necessary to prevent unauthorized access by motor-driven vehicles and shall post signs at points of entry to the Trail that such vehicles are prohibited. PARKS' barricades shall accept DISTRICT's locks. 17. REGULATIONS AND JURISDICTION. PARKS shall have recreational jurisdiction and regulatory responsibility for the Trail improvement areas as each area is completed and opened for public use. 18. PATROL. PARKS shall provide such patrol service as is necessary to prevent unauthorized use of the Trail and Property and to protect the safety of the users of the Trail. PARKS agrees to devote the same standards and levels of public safety patrol to the Trail and the Property as it is able to and does devote to its other recreational trails. During periods of runoff, PARKS shall patrol pedestrian undercrossing and determine whether to close off this or all portions of the Trail to public use. PARKS shall have sole responsibility for this determination. 19. MAINTENANCE AND LITTER. PARKS shall maintain the Property, including the Trail, in a clean, safe, and presentable condition,free from waste, litter,and other items resulting from public access to the Property 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 PARKS fails so to keep the property, 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 PARKS, which expense PARKS agrees to pay to DISTRICT upon demand. PARKS shall not be responsible for such maintenance outside of the Maintenance Corridor defined in Section 3. 20. WEED ABATEMENT. PARKS agrees to keep the Trail free from weeds and other vegetation using only methods and materials that are specified in PARKS' Pest Management Policies and Practices manual, except that in no case shall the methods and materials used be in violation of those that are approved for the DISTRICT to use on the Property at the time in question. PARKS' methods and materials shall be subject to DISTRICT's review. In addition, PARKS agrees to abate weeds to local fire district standards within areas outside the.Trail extending 7 feet beyond each edge of the Trail, including trail surface improvements, landscaped areas, the marsh observation platform, the pedestrian undercrossing, and various public access improvements such as benches, trash containers, and public access signs. DISTRICT agrees to perform weed abatement on the remaining portion of the Property according to local fire district standards. 21. MAINTENANCE OF TRAIL IMPROVEMENTS AND CHANNEL PARKS shall maintain, at its expense, all Trail improvements, including but not limited to: Trail pavement; culverts; gates;signs; fences; lighting at the pedestrian undercrossing; bollards; floodwall at the pedestrian undercrossing; pumping systems at the pedestrian undercrossing, including electrical meter hook- up and provision of electricity; and landscaping and irrigation, including electrical meter hook-up and provision of electricity, but excluding landscaping and irrigation installed as part of the Wildcat Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 6 Creek Mitigation Landscaping Project. Maintenance of the pedestrian undercrossing shall include removal of silt. PARKS shall also be responsible for maintenance of the levee and levee slope under and adjacent to the marsh observation platform. PARKS may connect its proposed irrigation system for the marsh observation platform to the nearby existing DISTRICT irrigation system subject to the following conditions: a. PARKS shall gain approval from the East Bay Municipal Utility District (EBMUD) for PARKS' proposed expansion of the existing DISTRICT irrigation system and shall provide the necessary plans and water demand calculations to EBMUD and DISTRICT. b. PARKS shall pay fees, system capacity charges, and any other costs associated with the expansion of use of the existing DISTRICT irrigation system. c. PARKS shall pay a proportionate share of the cost of water based upon the calculated demand of the new system, as calculated by the DISTRICT. PARKS agrees to make its water payments to the DISTRICT within thirty (30) days of receipt of a billing from the DISTRICT. d. PARKS shall obtain the written approval of the Corps to connect PARKS'facility to the existing DISTRICT irrigation system. e. PARKS shall repair or replace any damage to existing DISTRICT facilities, including dead or damaged landscaping, resulting from construction or use of the Trail or from excessive water use. Excessive water use shall be any volume greater than average water use established by prior EBMUD billings. f. PARKS and DISTRICT shall be mutually responsible for the repair and maintenance of the irrigation controller equipment. Each party shall notify the other whenever the controller equipment is serviced. g. PARKS irrigation system shall not be used as a source of construction water. PARKS shall not be responsible for maintenance or repair of flood control facilities, including channel bed, banks, levees, and maintenance/access roads, unless said flood control facilities are damaged by PARKS or users of the Trail. PARKS acknowledges that DISTRICT shall not be responsible for maintenance of any road improvements, including traffic signs, pedestrian crossings, sidewalks, pavement markings, drainage culverts, road pavement, bridge and appurtenances, where the Trail crosses Giaramita Street. Giaramita Street is a private road owned, operated, and maintained by the Richmond Unified School District (RUSD) and located within an easement granted to the RUSD by the DISTRICT. Parks shall not restrict access of the RUSD at Giaramita Street. 22. DRAINAGE. DISTRICT agrees to maintain, at its expense, all longitudinal drainage and cross culverts not part of the Trail. PARKS agrees to maintain, at its expense, drainage facilities necessary for Trail's operation, including any pumping systems at the pedestrian undercrossing. 23. FENCING. PARKS agrees to maintain, at its expense, all fencing and barricades on the Property installed by DISTRICT or PARKS. PARKS shall not be responsible for the maintenance of residential fencing installed by parties other than DISTRICT and PARKS, nor shall PARKS be responsible for the maintenance of DISTRICT fencing along the south side of the Property. 24. STRUCTURES. PARKS shall, at its own expense, provide structural and aesthetic maintenance to all structures,including the pedestrian undercrossing and marsh observation platform, used as part of the Trail. PARKS acknowledges that DISTRICT shall not be responsible for any relocation of the pedestrian undercrossing, including but not limited to trail surface improvements,floodwall, pumping system, and related items, required to accommodate any widening of the Richmond Parkway road and bridge. 25. SIGNS. . PARKS shall maintain existing signs and install and maintain appropriate informational/interpretive and warning signs. PARKS shall also install and maintain signs Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 7 designating permitted Trail uses by the general public, listing regulations governing such uses, and specifically prohibiting operation of unauthorized motor vehicles. 26. VANDALISM. PARKS shall, at its own expense, promptly repair all damage to Trail improvements, to the Property, and to existing and future utilities, caused or contributed to by users of the Trail. PARKS shall not be responsible for repair of such damage occurring outside of the Maintenance Corridor defined in Section 3. 27. GRAFFITI. PARKS shall, at its own expense, promptly clean, repaint or remove any graffiti placed by users of the Trail on Trail improvements, the Property, existing and future utilities and fences, walls, bridges, and buildings adjoining the Property. PARKS shall not be responsible for cleaning, repainting or removal of graffiti occurring outside of the Maintenance Corridor defined in Section 3. 28. POLLUTION. PARKS, 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 PARKS 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 PARKS' employees, contractors, agents, or should any discharge, leakage, spillage, emission or pollution of any type occur upon or from the Maintenance Corridor caused by PARKS' employees, contractors, agents, PARKS, 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 government body having jurisdiction thereover. To the extent permitted by law, PARKS shall indemnify,save, hold harmless,and defend DISTRICT, Contra Costa County, the United States, the State of California, their boards, officers, agents, and employees, and such holders of user rights against all liability, cost, and expense (including, without limitation, any fines, penalties,judgments, litigation costs, and attorneys' fees) incurred by DISTRICT and such other users as a result of PARKS' breach of this section or as a result of any such discharge, leakage, spillage, emission or pollution, regardless of whether such liability, cost or expense is proximately caused solely by the active negligence of DISTRICT. PARKS shall pay all amounts due DISTRICT under this section within ten (10) days after any such amounts become due. 29. 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 DISTRICT is under no obligation to maintain the Property or repair any damage thereto resulting from sliding, erosion, subsidence, or flooding unless in the sole discretion of DISTRICT such damage affects the integrity of the flood control facilities. In the event of any damage resulting from sliding, erosion, subsidence, or flooding, PARKS shall, at its sole expense, perform such maintenance or repair as PARKS may deem necessary for proper and safe operation-of the Trail. In the event that DISTRICT elects to repair any damage to the Property resulting from sliding, erosion, subsidence, or flooding, and said repair requires relocation or reconstruction of the Trail, PARKS shall perform said relocation or reconstruction at PARKS' sole cost and expense and to the satisfaction of the DISTRICT. Said relocation or reconstruction shall not commence until consent of BCDC is first obtained. PARKS shall cooperate fully with and assist DISTRICT in obtaining timely consent from BCDC, Such BCDC consent shall not be necessary in the event said relocation or reconstruction of the Trail is performed in an emergency. .30. INDEMNIFICATION. PARKS agrees to defend, indemnify, save and hold harmless DISTRICT, Contra Costa County, the United States, the State of California, their boards, officers, agents, and employees from any and all claims, demands, costs, damages, losses, actions, causes of action or judgments for any damage to property, or injury or death of any person, suffered by any person,firm or corporation arising out of the installation, alteration, maintenance, or use by PARKS, its employees, the public, or any other person of any of the Trail improvements or facilities, or the Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 8 Property, except as a result of DISTRICT's sole negligence. 31. INSURANCE REQUIREMENTS. During construction and operation of the Trail, including any modification or relocation thereof, PARKS' and all its agents, contractors and subcontractors shall take out and maintain all the insurance required by this section and shall submit certificates for review and approval by DISTRICT. No construction on or use of the Trail shall commence until such insurance has been approved by DISTRICT and PARKS shall be responsible for ensuring that its agents, contractors and subcontractors fully comply with this section. The certificates shall be on forms provided by PARKS and shall be signed by an authorized broker or agent of the insurance carrier. DISTRICT shall have the right to review the certificates. Acceptance of the certificates shall not relieve PARKS of any of the insurance requirements, nor decrease the liability of PARKS. DISTRICT reserves the right to require PARKS, its agents, contractors and subcontractors to provide insurance policies for review by DISTRICT. 1. Worker's Compensation Insurance--PARKS shall take out and maintain Worker's Compensation and Employer's Liability Insurance for all of its employees on the Trail or Property. PARKS shall require any contractors and their subcontractors to provide it and the DISTRICTwith evidence of Worker's Compensation and Employer's Uability Insurance, all in strict compliance with California State laws. 2. Public Uability Insurance--PARKS shall take out and maintain Comprehensive Automobile and General Uability Insurance that provides protection from claims which may arise from construction or operation of the Trail or from operations and activities .on the Property. PARKS shall require any contractors and subcontractors 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. 3. Endorsements--The following endorsements must be indicated on the certificate or in the policy: i The United States, the State of California, Contra Costa County, the Contra Costa County Flood Control and Water Conservation District, their boards, officers, agents and employees are additional insureds under the policy as to the work and operations being performed under this Agreement; ii The coverage is primary and no other insurance carried by DISTRICT will be called upon to contribute to a loss under this coverage; iii The policy covers blanket contractual liability; iv The policy limits of liability are provided on an occurrence basis; v The policy covers broad form property damage liability; vi The policy covers personal injury as well as bodily injury liability; vii The policy covers products and completed operations; viii The policy covers use of non-owned automobiles; ix When construction of the Trail and related facilities could involve exposure to explosion, collapse or underground hazards, PARKS shall require its agents, contractors and subcontractors to provide coverage for the involved hazard(s); x The coverage shall not be canceled nor materially altered unless 30 days' written notice is given to DISTRICT. 4. Self Insurance--PARKS has the right and option to self-insure the requirements under this section upon written notice to DISTRICT that PARKS assumes the obligations in the place and stead of any insurance carrier, any reference to failure of coverage notwithstanding. In the event that PARKS elects to self-insure, PARKS shall provide to DISTRICT a Agreement for Construction, Operation and Maintenance of Recreational Trail District/Parks Page 9 certificate or other evidence of self-insurance acceptable to DISTRICT. PARKS' election to self-insure shall not relieve its agents, contractors and subcontractors from complying with all other requirements of Section 31. 32. ASSIGNABILITY. PARKS shall not assign, transfer or sublet this Agreement or any privilege granted herein, except with the prior written consent of the DISTRICT, which DISTRICT shall not be obligated to give. DISTRICT shall not unreasonably withhold such consent. If written consent is given, the entire Agreement, including the easement and all other conditions, shall be included. 33. RECORDATION. Within 60 days after the legal descriptions are approved by the DISTRICT, this Agreement shall be accepted by PARKS and recorded in the Office of the County Recorder of Contra Costa County. 34. MODIFICATION OF AGREEMENT. This Agreement may be modified at any time, including expansion of the Trail to additional areas, only by the mutual written consent of the parties hereto. However, no such modification shall terminate or substantially impair the public access nature of the easement granted to PARKS, unless the consent of BCDC is first obtained. PARKS and DISTRICT shall not modify the easement granted by this Agreement without the prior written approval of BCDC. 35. ENTIRE AGREEMENT. It is understood that this document together with the attached exhibits 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 Agreement and are hereby abrogated and nullified. 36. NOTICE. All notices required by this Agreement or permitted by law shall be sent first class mail to the parties as follows: TO PARKS: General Manager East Bay Regional Parks District 2950 Peralta Oaks Court P.O. Box 5381 Oakland, CA 94605-0381 TO DISTRICT:� Chief Engineer Contra Costa County Flood Control and Water Conservation District 255 Glacier Dr. Martinez, CA 94553 Agreement for Construction, Operation and Maintenance of Recreational Trail -District/Parks ' Page 10 EXECUTED on the above stated date: CONTRA COSTA COUNTY FLOOD CONTROL AND WATER EAST BAY REGIONAL PARK DISTRICT CONSERVATION DISTRICT BY: L P/i'�'? � � By: Chair, Board of Supervisors General Manager ATTEST: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator Deputy RECOMMEND FOR AP L� .-rte B ief En er APPROVED AS TO FORM: APPROVED AS TO FORM: Victor J. Westman, County Counsel By: x .61 ` d-' �����f�� By: Deputy Park District Counsel jj:JLG a:Wildcat.cln 1/26/93 C icy PETE WRSON STATE OF CALIFORNIA Govemor SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION THIRTY VAN NESS AVENUE, SUITE 2011 SAN FRANCISCO, CA 94102-6080 QP PHONE: (415) 557-3686 February 5, 1993 rte, --- RtD CEIV Contra Costa County Board of Supervisors FEB 8 1993 651 Pine Street, 11th Floor Martinez, California 94553 CLERK BOARD OF SUPERS ISOR CONTRA COSTA CC,,,. SUBJECT: Permit 2-86, Contra Costa County Flood Control and Water Conservation District and East Bay Regional Park District (Wildcat Creek Flood Control Project) Dear Members of the Board of Supervisors: I am writing to urge your support for the Wildcat Creek Flood Control project operations and maintenance agreement, which I understand you will consider on February 9, 1993. The approval and execution of this agreement is essential to allow the East Bay Regional Parks District to publish its request for proposals, contract for the public access improvements required by special condition II-B-4 to Permit 2-86 as amended, and complete the construction of those required improvements. We understand if the Park District can not expend by June 30, 1993 the approximately $450,000 in funds from State Proposition 111 set aside to finance these improvements, the Park District will lose the funds and be unable to fund the access improvements required by the Commission permit. If that were to occur, both Districts could thereafter fail to meet the timing requirements of our permit. We therefore encourage your support to avoid any possibility of a future failure to meet the requirements of the permit and to ensure that the public can enjoy all of the benefits of this project as soon as possible. Thank you for your attention to this matter. Very truly your ALAN R. PENDLETON Executive Director cc: Contra Costa County Flood Control and Water Conservation District East Bay Regional Park District 0137B Dedicated to making San Francisco Bay better.