HomeMy WebLinkAboutMINUTES - 05061997 - C6 TO: BOARD OF SUPERVISORS
FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR
DATE: MAY 6, 1997
SUBJECT: LICENSE AGREEMENT FOR BISHOP RANCH ACCESS ACROSS
THE FORMER SOUTHERN PACIFIC RIGHT OF WAY-SAN RAMON AREA
Project No.: W.O. 5575 . Task: ACID Account: 3540
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE License Agreement with SDC7, a California partnership, and AUTHORIZE
the Board Chair to execute said Agreement on behalf of the County.
if. Financial Impact:
Revenue: $1,500 license fee received from SDC 7.
Continued on Attachment: X SIGNATURE:
_RECOMMENDATION OF COUNTY ADMINISTRATOR
_RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPROVED AS RECOMMENDED_OTHER
VOTE OF SUPERVISORS
UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
1 hereby cw*that thla fa a true and correctp
NW.gpp an action taken and entered on the minutes 0ofy Ms
Board of S on the date shore.
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Orig. Div: Public Works(R/P) P,111.13ATCHEWR Cte o tthebmrd
Contact: N.Wenninger(313-2227) as°par"�asaadnyn "i
cc: County Administrator
P.W.Accounting
License Agreement-Bishop Ranch
May 6, 1997
Page Two
III. Reasons for Recommendations and Background:
Licensee SDC 7 has been required by the City of San Ramon as a condition of
approval to secure a temporary secondary access for its Bishop Ranch 15
development located south of Norris Canyon Road and west of Alcosta Boulevard.
This License Agreement will allow SDC 7 to construct, maintain and use a
temporary right of way for ingress and egress across the former Southern Pacific
right of way to Executive Parkway to the west. The two-lane roadway will be located
adjacent to the newly constructed intermodal transit facility. The terms and
conditions of this agreement provide for revocation of the license and removal of
the improvements at Licensee's cost in the event that the right of way is required
by the County.
IV. Consequences of Negative Action:
SDC 7 will be unable to provide the required access.
License Agreement
(Not to be recorded)
BISHOP RANCH ACCESS ACROSS
FORMER SOUTHERN PACIFIC RIGHT OF WAY
THIS AGREEMENT is made and entered into this�� day of 4&A , 19�,'by and
between the COUNTY OF CONTRA COSTA, a political subdivision of the State of
California, hereinafter called "COUNTY," and SDC 7, a California partnership, hereinafter
called "LICENSEE."
WITNESSETH:
THAT LICENSEE has been required by the City of San Ramon as a condition of approval
to secure a temporary secondary access to its Bishop Ranch 15 Development located
south of Norris Canyon Road and west of Alcosta Boulevard.
THAT COUNTY, for good and valuable consideration and in further consideration of the
faithful performance and observance by LICENSEE of all of the terms and conditions
herein contained, does hereby grant to LICENSEE a revocable license for the construc-
tion, maintenance, removal and use of a temporary right of way for ingress and egress
purposes, together with the necessary appurtenances thereto, hereinafter referred to as
"the Access."
THE LICENSE above mentioned is granted by COUNTY and accepted by LICENSEE upon
the following terms and conditions and LICENSEE does hereby agree with COUNTY as
follows:
1. Definitions:As used in this License, "the Property" shall refer to that portion of the
former Southern Pacific Railroad Right of Way located between Bollinger Canyon
Road and Norris Canyon Road in the City of San Ramon.
As used in this License, "the Access" shall refer to a lateral crossing of the
Property, extending easterly from Executive Parkway as shown on the map on
Exhibit 'A" attached hereto and thereby incorporated in this Agreement. The
Access is 50 feet in width, and may include, subject to COUNTY's prior approval
and inspection as provided in Section 10, a two-lane asphalt road, shoulders, signs
and drainage facilities.
Page 1 of 10
2. Title of County: LICENSEE hereby acknowledges the title of COUNTY 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: The rights granted hereunder may be immediately revoked by the COUNTY
upon seventy-two (72) hours notice to LICENSEE upon a breach of any terms of
this agreement. 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.
4. Primary Use of Property: The Property consists of a corridor which COUNTY is
in the process of developing for transportation, utility, and other purposes.
Underground utility facilities are already in place and it is anticipated that, in the
future, a mass transportation system and additional utility facilities will 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 COUNTY.
LICENSEE acknowledges that the uses just described constitute the primary use
of the Property and that LICENSEE's use of the Access 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 Access in any manner that will materially
interfere with or impair said primary uses of the Property or the use of the Property
by COUNTY's permittees as defined below. 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
(`collectively referred to herein as "COUNTY's Permittees"), including COUNTY's
right to use the Access for emergency or maintenance vehicle access or any other
purpose.
5. Suspension or Limitation of Use: COUNTY and its permittees shall have the
right to suspend or to limit the use of the Access by LICENSEE and the general
public for a reasonable amount of time for protection of public safety, or for the
construction, installation, operation, maintenance or repair of other facilities on the
Property. Should such suspension or limitation be necessary, COUNTY shall
provide LICENSEE fifteen (15) days' prior notice in writing, except in cases of
emergency maintenance or repairs.
Page 2 of 10
COUNTY shall not be held responsible or liable for unavoidable damage or removal
of any Access improvements when COUNTY finds it necessary to accomplish work
for the maintenance, construction, repair, reconstruction or alteration of COUNTY
property. However, COUNTY will exercise reasonable care to minimize adverse
impacts of such work upon Access improvements.
6. Revocation: In the event, in the sole discretion of COUNTY, the primary uses of
the Property by COUNTY or COUNTY's Permittees require some permanent use
of a portion or portions of the Property which, by nature thereof, precludes
LICENSEE's use of all or a portion of the Access, COUNTY may, upon one hundred
twenty (120) days' prior notice, revoke this License. Upon revocation or termination
of this Agreement, the COUNTY shall have the right to request LICENSEE to
remove from the Property, at LICENSEE's sole expense, such portions of the
Access improvements as COUNTY may demand. In addition, LICENSEE shall
restore said real property to as near its original condition as possible. If LICENSEE
fails to remove the Access improvements within thirty (30) days after receipt of
written notice from COUNTY to do so, said improvements may be removed by
COUNTY at the LICENSEE's expense which expense LICENSEE agrees to pay
COUNTY promptly upon demand.
a. Substitute Access: In the-event COUNTY notifies LICENSEE under this
Section that it must entirely remove its improvements from the Property, LICENSEE
shall have the right to make written request to COUNTY for permission to construct
a replacement subsurface or aerial crossing over or under the Property ("Substitute
Access"). Said request must be received by COUNTY within the aforementioned
one hundred twenty (120) day revocation notice period. Provided COUNTY
reasonably determines and advises LICENSEE in writing that sufficient portions of
the Property are available for a Substitute Access, that there are no other
impediments to construction and that, in COUNTY's sole discretion, the Substitute
Access is compatible with the primary uses of the Property, LICENSEE shall have
thirty (30) days following receipt of the COUNTY's written notice of determination
to submit to COUNTY, for review and approval, engineering and construction plans
and specifications and any other documentation required by the COUNTY relating
to the construction of the Substitute Access. Prior to constructing the Substitute
Access, LICENSEE shall obtain any required consents or permits from any federal,
state, or local governmental bureau, department, commission or agency, or any
other person or entity, whether or not governmental in character, whose permission
may be required to permit LICENSEE to construct the Substitute Access. COUNTY
makes no representation, warranty or guarantee as to whether the required permits
will be obtained.
Page 3 of 10
C .�
If the Substitute Access plans and specifications are approved by the COUNTY, in
both its capacity as property owner and in its regulatory capacity, and by all other
persons or entities with jurisdiction over the matter, then LICENSEE, at its sole
expense, may construct the Substitute Access in accordance with the approved
plans and specifications. The construction and maintenance of the Substitute
Access shall be subject to COUNTY's direction and COUNTY's approval and
inspection as set forth in Section 10 of this License and LICENSEE shall not
proceed to construct without COUNTY's written direction to do so. COUNTY shall
have the right to require that, prior to the commencement of construction,
LICENSEE enter into a further agreement with the COUNTY pertaining to the
specific details of the project, including but not limited to placement, construction,
management and maintenance of the Substitute Access as well as damage and
indemnity issues. Nothing contained herein shall require any expenditure of funds
by or increased costs to COUNTY to provide for or accommodate the Substitute
Access, the construction thereof, or any activities related thereto.
In making this agreement, COUNTY is acting solely in its capacity as owner of the
subject Property. This agreement in no way restricts the COUNTY's rights to reject,
object, control or otherwise require modifications to the proposed Substitute Access
in its regulatory capacity.
7. 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 COUNTY 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 Property then, after thirty (30) days' prior written notice specifying the needed
work, COUNTY may perform or hire the necessary work at the reasonable expense
of LICENSEE, which expense LICENSEE agrees to pay to COUNTY upon demand.
LICENSEE agrees to keep the Access free from weeds and other vegetation, and
to abate weeds to local fire district standards. COUNTY agrees to perform weed
abatement on the remaining portion of the Property according to local fire district
standards.
8. Indemnification: LICENSEE shall indemnify, save, protect, defend, and hold
harmless COUNTY, Southern Pacific Pipe Lines, Inc., and East Bay Regional Park
District, their respective boards, officers, employees and contractors (hereinafter
collectively referred to in this Section as "Property Users"), from and against any
and all loss, liability, expense, claims, costs, suits, and damages, including
attorney's fees, arising out of or connected with LICENSEE's operations and
performance or the presence or use by the LICENSEE or any other person of the
Page 4 of 10
Property under the terms of this LICENSE, or of the Access, provided however,
LICENSEE shall not be responsible to indemnify, save, protect and hold harmless
any individual Property User whose sole negligence or sole willful misconduct, as
determined by a court of law, caused the applicable claim, cost or liability. .
9. Insurance Requirements: LICENSEE shall take out and maintain during the life
of this License all the insurance required by this section and shall submit
certificates for review and approval by COUNTY. No construction on or use of the
Access shall commence until such insurance has been approved by COUNTY. The
certificates shall be on forms provided by COUNTY or the insurance carrier.
Acceptance of the certificates shall not relieve LICENSEE of any of the insurance
requirements, nor decrease the liability of LICENSEE. COUNTY reserves the right
to require LICENSEE to provide insurance policies for review by COUNTY.
(a) Worker's Compensation Insurance. LICENSEE shall take out and maintain
Worker's Compensation and Employer's Liability Insurance for all of its
employees on the Access. LICENSEE shall require any subcontractor to
provide it with evidence of Worker's Compensation and Employer's Liability
Insurance, all in strict compliance with California State laws.
(b) Public Liability Insurance. LICENSEE shall take out and maintain 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) Contra Costa County, Southern Pacific Pipe Lines, Inc. (SPPL), and
the East Bay Regional Park District (EBRPD), their respective boards,
officers, agents 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 COUNTY,
SPPL or EBRPD will be called upon to contribute to a loss under this
coverage;
(3) The policy covers blanket contractual liability;
Page 5 of 10
(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;
(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 COUNTY.
(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 COUNTY constitute a breach
of this License and justify immediate termination of the same.
10. Approval and Inspection of Work: LICENSEE shall not perform any construction,
reconstruction, remodeling, repair, removal, or other work within the Property
without first obtaining COUNTY's approval in writing of said work. In seeking
COUNTY's approval, LICENSEE shall furnish to COUNTY a complete description
and sketch of the work proposed to be performed. In performing work approved by
COUNTY, LICENSEE shall comply with all terms, conditions, and requirements
imposed by COUNTY and not deviate in any material manner from the description
and sketch approved by COUNTY, without first obtaining additional approval in
writing from COUNTY.
It is understood and agreed that COUNTY has leases and/or licenses with others
for all or a portion of the Property. Such arrangements provide an underground
petroleum products pipeline right-of-way and may also include other uses such as
underground natural gas, sewer, water or electrical lines, overhead electric and
communication lines or similar uses. This License shall not be effective and
LICENSEE shall have no right to use the Access unless and until LICENSEE
acquires letters of approval confirming that LICENSEE's proposed use of the
Property is acceptable to other users, including, but not limited to those users listed
below:
Southern Pacific Pipe Lines, Inc.
737 Arnold Drive, Suite A
Martinez, CA 94553
Telephone: (510) 372-6560
Page 6 of 10
East Bay Regional Park District
2950 Peralta Oaks Court
P. 0. Box 5381
Oakland, CA 94605-0381
Telephone: (510) 635-0138
LICENSEE agrees to take all precautions required to avoid damage to the facilities
of others, the-COUNTY or the Property.
Notwithstanding the foregoing, LICENSEE shall not be required to obtain
COUNTY'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 COUNTY, 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 COUNTY, which repairs are necessary to protect the safety of the
public and others. Except in the case of emergency or routine maintenance,
LICENSEE shall consult COUNTY at least seven (7) days before any major
maintenance operations are performed by LICENSEE. Work shall be done in such
a manner that COUNTY shall at all times be able to use and gain access to its
facilities.
All work performed by LICENSEE under this section shall be subject to inspection
by COUNTY.
11. Assignment: No rights of LICENSEE hereunder shall be transferred or assigned,
unless to successor owner of Bishop Ranch Development 15, without prior written
consent of COUNTY. 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 immedi-
ately terminate, at COUNTY's sole discretion.
13. Condition of Property/As Is: It is understood and agreed by and between the
parties hereto that the Property is subject to sliding, erosion, subsidence, and
flooding, and that COUNTY is under no obligation to maintain the Property or repair
any damage resulting from sliding, erosion, subsidence, or flooding unless in the
sole discretion of COUNTY such damage affects the integrity of the COUNTY'S
facilities. In the event of any lesser damage, LICENSEE shall perform such
Page 7 of 10
maintenance or repair as LICENSEE may deem necessary for proper and safe
operation of the Access facilities. LICENSEE acknowledges and agrees that
COUNTY makes no warranty, guarantee, representation or liability, express or
implied as to the physical condition of the property and it is the sole responsibility
of LICENSEE at its sole cost and expense to investigate such condition.
14. 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 COUNTY.
No hazardous materials shall be handled by LICENSEE at any time upon the
Property. Should any discharge, leakage, spillage, emission or pollution of any
type occur upon or from the Property caused by LICENSEE's employees,
contractors and agents, LICENSEE, at its expense, shall be obligated to clean all
the property affected thereby, whether owned or controlled by COUNTY or any third
person, to the satisfaction of COUNTY(insofar as the property owned or controlled
by COUNTY is concerned) and any governmental body having jurisdiction
thereover.
To the extent permitted by law, LICENSEE shall indemnify, hold harmless, and
defend COUNTY, SPPL, EBRPD and any other COUNTY Permittees against all
liability, cost, and expense (including, without limitation, any fines, penalties,
judgments, Litigation costs, and attorneys' fees) incurred by COUNTY and such
other users as a result of LICENSEE's 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
COUNTY.
LICENSEE shall pay all amounts due COUNTY under this section within ten (10)
days after any such amounts become due.
15. Maintenance of Access Improvements: LICENSEE shall maintain at its expense
all Access improvements, including pavement, bridges, gates, signs, and fences.
16. Drainage: COUNTY agrees to maintain, at its expense, all drainage and cross
culverts not part of the Access. LICENSEE agrees to maintain, at its expense,
drainage facilities necessary for Access.
17. Fencing: LICENSEE agrees to maintain, at its expense, all fencing and barricades
on the Property installed by LICENSEE.
Page 8 of 10
18. Vandalism: LICENSEE shall, at its own expense, promptly repair all damage to
Access improvements, to the Property and to existing and future utilities, caused
or contributed to by users of the Access.
19. Graffiti: LICENSEE shall, at its own expense, promptly clean, repaint, or remove
any graffiti placed by users of the Access on Access improvements, the Property,
existing and future utilities and fences, and walls and buildings adjoining the
Property.
20. (Encroachment Permits: COUNTY shall have the sole right to grant encroachment
permits or rights of entry within the Property. Notification of encroachment permits
granted and plans approved by COUNTY will be forwarded to LICENSEE.
LICENSEE shall obtain permits from all other agencies as required for construction
of the Access Points improvements.
21. (Modification: This License shall be subject to modification or amendment only by
the written, mutual consent of both parties.
22. 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 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
Attn: Real Property Division
255 Glacier Drive
Martinez, CA 94553
Telephone: (510) 313-2220
Facsimile: (510) 313-2333
If to the Licensee:
Sunset Development Company
Attn: Peter R. Oswald
One Annabel Lane
P.O. Box 640
San Ramon, CA 94583
Telephone: (510) 277-1700
.Facsimile: (510) 866-1330
13-- . n _-F -in
24. Entire Agreement: It is understood that this document contains the entire
agreement between the parties hereto and all prior understandings or agreements,
oral or written, of whatsoever nature regarding the rights hereby granted are
superseded by this License and are hereby abrogated and nullified.
IN WITNESS WHEREOF, the parties hereto have executed this License, in duplicate, the
day and year first above written.
Contra Costa County SDC 7, a California Partnership
By Vu,C By W�+/
C air, Board of Supervisors 9- A
Ms. s*ohs.+ i�*—toPw-j- cs,
Attest: 097 By (` �&�
Phil Batchelor
Clerk of the Board of Supervisors
and County Administrator
By
Approv as to form:
Victor J. Westman
County Counsel
By
Depu y
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April 1,1997
Page 10 of 10
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