HomeMy WebLinkAbout8.3 EastBayRegionalParkDis
CITY CL E R K
File # D[b][Q][Q]-aJ[Q]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: September 20, 2005
SUBJECT:
Approval of Second Amendment to Sublicense Agreement between
City of Dublin and East Bay Regional Park District Concerning
Maintenance and Operation of the Iron Horse Trail and Alamo
Canal Trail to Add the Tassajara Creek Regional Trail
Report Prepared by: Mark Lander, City Engineer
ATTACHMENTS:
1)
Resolution Approving Second Amendment to SubJicense
Agreement between City of Dublin and East Bay Regional
Park District ("EBRPD" or "District"), together with Exhibit
"A," Agreement (including Exhibits A-E to the Agreement)
Vicinity Map
2)
RECOMMENDATION: ~ Adopt Resolution approving the Second Amendment to the
~ Sublicense Agreement.
FINANCIAL STATEMENT: Thepedestrian/bike path within the segment of Tassajara Creek to
be added to the Sublicense Agreement is currently included in the
Recreational License Agreement with Alameda County Flood
Control, Zone 7 (Zone 7), with maintenance and operation the
responsibility of the City. Under the terms of the sublicense
agreem.ent, the City of Dublin will make a one-time payment to
EBRPD of $5,600 for repair work currently needed on the trail. In
addition, the City will make an annual payment to the EBRPD of
$19,257, with the District ass\U1\ing the ongoing cost of maintenance
and operation. The payment [or the 2005-06 Fiscal Year will be out
of funds previously programmed for the City's cost of maintenance.
The annual cost of trail maintenance by the City, including long-
term pavement repair, is $20,351. This results in a nominal savings
to the City. The annual payment will be subject to a cost-orliving
increase, as spelled out in the agreement.
DESCRIPTION: In 1987, the City of Dublin entered into a license agreement with
Zone 7 that allows public use of Zone 7 property along the bank of Alamo Creek for park and recreational
use. This License allowed the City to construct and operate a multi-use trail for bicycles and pedestrians.
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COPIES TO: Jim Townsend, EBRD
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ITEM NO.
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G:\DEVELOP\EBRPD SubJicensc Agreement. Zon~ 7 Rocrc:ation",1 U5t:: Lic~!:ie\assl EBRPD Sublict::nse Agreenlent No. 2.doc
The License was subsequently modified in 1995, 2000, 2002 and 2003 (twice) via Modification Nos. 1,2,
3,4, and 5 to include segments of the Alamo Canal, Line J-6, South San Ramon Creek, Tassajara Creek,
and Alamo Creek. The City and Zone 7 agreed to replacement of the License Agrccment and the five
modifications with a new Recreational License Agreement, which was approved by the City Council on
February 15, 2005 (Resolution 16-05). The replacement agreement includes the Iron Horse Trail (South
San Ramon Creck ), Alamo Canal Trail (Alamo Canal), Alamo Creek Trail (Alamo Creek), and Tassajara
Creek Trail (Tassajara Creek).
The City entered into a sublicense agreement with the EBRPD on August 8, 1995, which assigned
responsibility for operation and maintenance of thc trails to the District. The sublicense agreement was
amended on May 6, 2003, to add a short portion of the Iron Horse Trail constructed as part of the Park
Sierra Apartments development. The sublicense agreement currently covers the Iron Horse Trail and
Alamo Canal Trail; the Alamo Creek Trail and Tassajara Creek Trail are still maintained by the City.
City and EBRPD staff have discussed adding the Tassajara Creek Trail to the sublicense agreement for
several years, as the trail is shown on the District's master trail plan. The Trail provides a link to other
existing or proposed District trails, tlnd has been constructed in conformance with District standards. A
second amendment to the sublicense agreement is now proposed to accomplish this. The key features of
the amendment are as follows:
· The amendment would add to the existing agreement those portions of the Tassajara Creek
Regional Trail between Dublin BOulevard and Somerset Drive.
· The City would make a one-time payment to the Park District of $5,600 to cover the cost of
repairs currently nceded for the Trail.
· The EBRPD would assume responsibility for keeping the trail surface clean and in good repair.
This includes routine patrol by District maintenance staff, as well as public safety staff, cleanup of
debris or trash on the pavement, maintaining directional signing at trail entrances, minor pavement
repair (crack sealing or patching), and major repair (slurry seal, overlay, or reconstruction).
Maintenance of adjoining landscaping or drainage features would be borne by the abutting
homeowner's association, the City, or Zone 7.
· The City will make an annual payment of $19,257 to the EBRPD to cover maintenancc costs
assumed by the District. The annual payment is subject to a cost-of-living increase based on the
Consumer Price Index for the San Francisco~Oakland area. The annual payment is due on January
I of each year; the first payment for the 2005 calendar year will be due on the date that the District
assumes maintenance and will be prorated for the remaining months in the year.
.' The EBRPD will agree to a future amendment to the sublicense agreement to add the portion of
the Tassajara Creek Rcgional Trail currently under construction within the Roxbury development
(Tract 7414, Tassajara Creek Phase III by Greenbriar Homes) at the time that the Trail is
completed and accepted by the City. The amendment is subject to final inspection by the EBRPD.
The annual payment to the District will increase by $4,322 to $23,579, subject to the inflation
cost-of-living increasc and proration as described above. Addition of this portion of the Trail will
providc a continuous trail under District responsibility from Dublin Boulevard north 7000 feet (1.3
miles) to the EBRPD's Tassajara Creek Regional Park staging area on Tassajara Road.
Staff has estimated the cost of Trail maintenance, including pavement repair, at $24,918 per year for the
entire 7000-foot len!,>th of the Trail. This is nominally higher than the annual payment to the EBRPD.
The annual payment to the District under the sublicense agreement will be offset by the elimination of
maintenance costs that would otherwise be borne by the City.
The terms of the maintenance arc spelled out in the original agreement. In summary, EBRPD will patrol
the trail, keep the trail surface clean of weeds, debris or litter, perform short-term pavement maintenance
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(crack sealing, repairs) and long-term pavement maintenance (overlay, reconstruction). The level of
maintenance would generally match that which would be provided by the City in the absence of a
sublicense agreement. Under the agreement, if EBRPD fails to respond to specific notices from the City
regarding unmet maintenance needs, the City may perform the work with its' own resources and deduct
the cost of the work from funds owed EBRPD. The City also has the right to terminate the agreement
should EBRPD not perform work as required under the agreement, or for other reasonable cause. In this
event, the City would continue with operation and maintenance with its' own resources.
Staff recommends that the City Council adopt the Resolution approving the Second Amendment to the
Sublicensc Agreement.
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RESOLUTION NO. - 05
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING SECOND AMENDMENT TO SUBLICENSE AGREEMENT FOR ALAMO
CANAL (LINE 7F), SOUTH SAN RAMON CREEK (LINE 7J), LINE 7J6, AND T ASSAJARA
CREEK REGIONAL TRAIL (LINE) BETWEEN CITY OF DUBLIN AND EAST BAY
REGIONAL PARKDlSTRlCT
WHEREAS, Alameda County Flood Control - Zone 7 (Zone 7) and the City of Dublin (City)
previously entered into a License Agreement on March 18, 1987, as authorized by City Cou11ci1
Resolution No. 15-87, allowing the City the usc of ecrtain flood control channel properties owned by Zone
7 for park and recreational purposes, including trails and landscaping; and
WHEREAS, said license agreement was replaced by a new agreement entitled Recreational U.çe
License Agreement (the "License Agreement") dated February 15, 2005, as authorized by City Council
Resolution No. 16-05; and
WHEREAS, the East Bay Regional Park District (EBRPD) and the City entered into a
sublicense agreement on August 8, 1995, assigning to EBRPD maintenance and operation of that portion
of the Iron Horse Trail on land owned by Zone 7 (Line 7J) from the Contra Costa County line to its
junction with Alamo Creek, and one that portion of the Alamo Can.al Trail on land owned by Zone 7 (Line
7F) from Alamo Creek to 1-580; and
WHEREAS, the City and EBRPD approved the First Amendment to the Sublicense Agreement
on May 6, 2003, to add the segment of the Iron Horse Trail adjoining the Park Sierra Apartments to the
trail segments covered under the Sublicense Agrccment: and
WHEREAS, the License Agreement includes portions of the Tassajara Creek Regional Trail,
extending from DlIblin BOlllevard north to Somerset Drive, which are not included in the Sublicense
Agreement or thc First Amendment to the License Agreement; and
WHEREAS, the City and EBRPD intend to assign maintenance and operation of the Tassajara
Creek Regional Trail to EBRPD; and
WHEREAS, the City and EBRPD have prepared a Second Amendment to the Sublicense
Agreement, assigning maintenance and operation ofthe Tassajara Creek Regional Trail to EBRPD;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Second Amcndment to the 1995 Sublicense Agreement between the City of Dublin
and thc East Bay Regional Park District, attached hereto as Exhibit "A".
BE IT FURTHER RESOLVED that the City Clerk of the City of Dublin is hereby directed to
transmit a eertificd copy of this Resolution, along with duplicate executed copies of the Access and
Maintenance Agreement to the Association for the Association's Board approval and processing.
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BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 20th day of September, 2005.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
o:\mWI-] .OP\Gre(:nbriar@1'a!iSl:ljaraCret:k\n::sùaccessand maintenance Agmt w TCMA, 2-01-05.doc
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SECOND AMENDMENT TO
SUBLICENSE AGREEMENT
(ALAMO CANAL (Line 7F), SOUTH SAN RAMON CREEK (Line 7 J), Line 7 J6)
AND TASSAJARA CREEK REGIONAL TRAIL
CITY OF DUBLIN TO EAST BAY REGIONAL PARK DISTRICT
This Second Amendment to the Sublicense Agreement between the City of Dublin ("City")
and East Bay Regional Park District ("District") is entered into on this 20th day of September, 2005,
for Alamo Canal (Line 7F), South San Ramon Creek (Line 7 J), Line 7 J6 and the Tassajara Creek
Regional Trail.
Recitals
1. The City of Dublin ("City") and East Bay Regional Park District ("District")
previously entered into an agreement entitled Sublicense Agreement (Alamo Canal (Line 7F),
South San Ramon Creek (Line 7 J), Line 7 J6), City of Dublin to East Bay Regional Park District,
dated August 8, 1995 ("the Sublicense Agreement"), attached hereto as Exhibit A.
2. Pursuant to the Sublicense Agreement, the City has sublicensed its rights under a
license agreement with Alameda County Flood Control and Water Conservation District, Zone 7
("Zone 7"), dated March 7, 1987, as amended and superceded on February 15, 2005 ("the Zone 7
License Agreement"), attached hereto as Exhibit B, to District to allow the District to manage and
maintain a regional recreation trail.
3. On May 6, 2003, the City Council of the City of Dublin approved the First
Amendment to the 1995 Sublicense Agreement to include a segment of the Iron Horse Trail,
attached hereto as Exhibit C.
4. The purpose of this Second Amendment to the Sublicense Agreement is to include
the Additional Property of the Tassajara Creek Regional Trail, upon completion of the trial
improvements, and to further amend and modify the terms of the Sublicense Agreement.
AGREEMENT
A. This Second Amendment to the Sublicense Agreement shall apply to the reai
property within the Alameda County Flood Control and Water Conservation District, Zone 7 ("Zone
7") pursuant to the Zone 7 License Agreement, as shown on Exhibits "0·1 and "0-2".
B. The Sublicense Agreement shall include additional property, a portion of the
Tassajara Creek Regional Trail located within Parcel A of Tract 7414 and Lot 131 otTract 7075,
Second Amendment to Sublicense Agreement Between
City of Dublin and East Bay Regional Park District
ßXIIIBIT A.
to tAe 7(esD/ u..b'o /(
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(the "Additional Property"), currently under construction, upon its completion and acceptance by
the City. District acknowledges that the current design of the trail is acceptable and that there are
no known impediments to cause it to refuse acceptance of the trail. City acknowledges that District
staff will need to complete a final inspection of the trail prior to the District commencing
maintenance and operation, and agrees that any corrective work will be completed at the cost of
the developer and at no cost to District. The Additional Property is described on Exhibit E,
attached hereto and made a part hereof.
C. All Sublicense Agreement references to the 1987 License Agreement and 1995
Modification Agreement shall refer to the February 15, 2005 modification to the License Agreement
which superceded the 1987 License Agreement and the 1995 modification. The February 15, 2005
modification to the License Agreement is attached hereto as Exhibit B.
D. District agrees to maintain the Additional Property to the standard required by
Section XIV "MAINTENANCE AND OPERATION" of the Sublicense Agreement.
E Section I, "PROPERTY RIGHTS", of the Sublicense Agreement is amended by
adding a second sentence to read:
"District shall not receive an ownership interest in any trail improvements by virtue
of District exercising its rights under this Sublicense Agreement."
F. Section VI, "PAYMENT", of the Sublicense Agreement is amended to add the
following language following the first sentence:
"City agrees to pay District a one-time payment of $5,600,00 prior to the District
commencing maintenance of the trail. District agrees to use this payment to
complete repair of failed pavement identified by City and District staff during prior
inspection of the trail. District agrees that the payment shall complete any
obligation of the City to perform further corrective work on the trail, and agrees to
commence maintenance and operation of the trail on an "as-is" basis under he
terms of this agreement and until such time as the agreement may be modified or
terminated.
City agrees to pay District $ 19,257.00 on or before January 1.1 of each year, for
maintenance of the trail. Payment for the remainder of the 2005 Calendar Year
shall be prorated based on the actual date that District begins maintenance of the
trail, as agreed to by both parties. Effective annually, beginning January 1, 2006
this payment is to be subject to a general increase equal to the yearly movement,
November to November, in the Consumer Price Index (CPI) for Urban Wage
Earners and Clerical Workers, San Francisco - Oakland Index based on the
revised 1991 Edition of the Consumer Price Index (1982-84==100).
Upon modification of this agreement to include the portion of the trail within Parcel
G of Tract 7414, City agrees to increase the annual payment to the District by
$4,322, or a new total annual payment of $23,579. The increase in the annual
payment shall be prorated based on the date that the District begins maintenance
Second Amendment to Sublicense Agreement Between
City of Dublin and East Bay Regional Park District
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169684,4
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and operation of the additional trail section. This increase shall be subject to the
annual general increase described in the paragraph above."
G. Section XI, "PROHIBITED USES", of the Sublicense Agreement is amended by
replacing the last sentence to read:
"Neither City nor District shall permit any type of motor vehicle (excepting
motorized wheelchairs) to be driven or parked on Trail, except those of City, Zone
7 or District being used for maintenance, patrol or public safety purposes."
H. Section XIV, "MAINTENANCE AND OPERATION", of the Sublicense Agreement
is amended as follows:
"SECTION XIV. MAINTENANCE AND OPERATION
District shall cause the regional Trail connection facilities established pursuant to
this Sublicense Agreement to be maintained and operated in an orderly, safe, and
sanitary manner free from waster, litter, and other items resulting from public
access to the Property and left by parties other than the City and its permittees in
a manner consistent with other District trails. 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
Trail. if District fails to properly maintain the Property, then, after thirty (30) days'
prior written notice specifying the need work, City may periorm or cause to be
periormed the necessary work at the expense of District, which expense District
agrees to pay to City upon demand.
Notwithstanding the foregoing, if District, its employees, contractors,
subcontractors, agents or the general public construct, install, operate or maintain
any improvements that are in violation of the Zone 7 License Agreement, attached
hereto as Exhibit 8, or in violation of any of the approvals granted to City under
the Zone 7 License Agreement, City may direct District, at District's sole cost, to
remove the improvements or to take other remedial action, as City may, in its sole
discretion, determine to be appropriate. District shall be afforded a period of
fifteen (15) days, within which to cure any such violations and comply with City's
directive. In the event District fails to cure within the above stated period, City
shall have the right to take any and all remedial actions and District shall
reimburse City for all costs associated therewith. City, as it reasonably
determines, may extend the period as may be necessary to cure the default,
provided that District has commenced the cure within the fifteen (15) day period.
Any chemicals the District currently uses in weed abatement or other operations
will meet the guidelines of Zone 7 and District pesticide use.
District shail maintain at its expense all Trail improvements, including Trail
pavement, signs, and bollards installed or approved by the District.
Second Amendment to Sublicense Agreement Bstwssn
City of Dublin and East Bay Regional Park District
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769684.4
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District shall maintain the condition of the Trail surface, District shall repave the
Trail as would be required by normal and reasonable use. District shall also repair
the Trail if the Trail is damaged during public use. District shall not be responsible
if the Trail is damaged during Zone 7's maintenance of the Channel during flood
control, drainage, or water conservation repair measures.
District shall not be responsible for the maintenance of any ornamental
landscaping or irrigation. District shall not be responsible for any structural
maintenance or repair of any bridges or drainage facilities,"
I. Section XVI, "LIABILITIES", of the Sublicense Agreement is amended by deleting
the Section and renaming the Section "INDEMNITY", to read:
"District shall indemnify, save, protect, defend and hold harmless
City, its boards, officers, employees, agents and contractors from
and against any and all loss, liability, expense, claims, costs, suits
and damages, including attorney's fees, arising out of or
connected with use of the Trail by any person other than City and
its boards officers, employees agents or contractors.
City shall indemnify, save, protect, defend and hold harmless
District, its boards, officers, employees, agents and contractors
from and against any and all loss, liability, expense, claims, costs,
suits and damages, including attorney's fees, arising out of or
connected with use of the Trail by City or its boards, officers,
employees agents or contractors."
J. Section XVII, "COSTS AND EXPENSES", of the Sublicense Agreement is
amended by deleting the Section and renaming the Section "INSURANCE", to read:
"District shall take out and maintain during the life of this Sublicense Agreement all
the insurance required by this section and shall submit certific¡¡te for review and
approval by the City. No construction on or use of the Trail shall commence until
such insurance has been approved by the City. The certificates shall be on forms
provided by City or the Insurance carrier, Acceptance of the certificates shall not
relieve the District of any of the insurance requirements, nor decrease the liability
of the District, City reserves the right to require District to provide insurance
policies for review by the City.
(a) Worker's Compensation Insurance. District shall take out and maintain Worker's
Compensation and Employer's Liability Insurance for all of its employees on the
Trial. District 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,
Second Amendment to Sublicense Agreement Between
City of Dublin and East Bay Regional Park District
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769684.4
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(b) Public Liabilitv Insurance, District shall take out and maintain Comprehensive
Automobile and General Liability Insurance that provides protection from claims
which may arise from operations or performance under this License. District shall
require any subcontractor to provide evidence of the same liability insurance
coverages. The amounts of insurance shall not be 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) City of Dublin, its council, 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 carrier by City 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;
(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 cancelled nor materially altered unless thirty
(30) days written notice is given to the City.
(d) Failure of Coveraqe, Failure, inability or refusal of District to take out sand
maintain during the entire term of this Sublicense Agreement any and all of the
Insurance as aforesaid shall at the option of City constitute a breach of this
Sublicense Agreement and justify immediate termination of the same.
(e) Self Insurance. District has the right and option to self-insure the requirements
under this Section XVII upon written notice to City that District assumes the
obligations in the place and stead of any insurance carrier, any reference to failure
to coverage notwithstanding. In the event that District elects to self-insure, District
shall provide to City a certificate or other evidence of self-insurance acceptable by
the City."
Second Amendment to Sublicense Agreement Between
City of Dublin and East Bay Regional Park District
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769664.4
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K. Section XVIII, "RIGHTS AND DUTIES OF CITY", of the Sublicense Agreement is
amended by deleting the last sentence of the second paragraph and replacing it to read:
"Should such suspension or limitation be necessary, City shall provide District
thirty (30) days' prior notice in writing, except in cases of emergency or repairs,"
L. Section XXII, "FENCING", of the Sublicense Agreement is amended by deleting
the Section and replacing it to read:
"District agrees to maintain, at its expense, all fencing and barricades on the Trail
installed or approved by District."
M. Section XXVIII, "NOTICES", of the Sublicense Agreement is amended by
replacing the City's address to read:
"City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568"
N. All other terms of the Sublicense Agreement remain in effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first written above,
CITY OF DUBLIN
EAST BAY REGIONAL PARK DISTRICT
President
Mayor
ATTEST:
APPROVED AS TO FORM:
District Counsel
City Clerk
APPROVED AS TO FORM:
City Attorney
Second Amendment to Sublicense Agreement Between
City of Dublin and East Bay Regional Park District
6
769684.4
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SUBLICENSE AGREEMENT
(ALAMO CANAL (Line 7F), SOUTH SAN RAMON CREEK (Line 7J), LINE 7J6)
CITY OF DUBLIN
TO
EAST BAY REGIONAL PARK DISTRICT
THIS SUBLICENSE LICENSE AGREEMENT (hereinafter "Sublicense Agreement"), made and
entered into this 8th. day of August, 1995, by and between the Subllcensor, CITY OF
DUBLIN, a Municipal Corporation, (hereinafter ·City") and Sublicensee, EAST BAY REGIONAL
PARK DISTRICT, a California special district, (hereinafter "District").
RECITALS
WHEREAS, Alameda County Flood Control and Water Conservation District, Zone 7
(hereinafter "Zone 7"), is the owner of certain real property within the limits of Alameda County
which is used primarily as a conveyance channel for flood control, drainage, and water
conservation purposes (hereinafter "Channel").
WHEREAS, on March 18, 1987, Alameda County Flood Control District, Zone 7, and City
entered into a License Agreement (hereinafter "1987 Agreement"). The 1987 Agreement was
amended on August 8, 1995, by a modification to the 1987 Agreement (hereinafter "1995
Modification Agreemenf'). The terms and conditions of the 1987 Agreement and the
Modification Agreement are Incorporated herein by this reference, permitting City to use the
Channel Property for Trail purposes (hereinafter "Trail").
WHEREAS, the City is authorized by the acts governing it to plan, improve, maintain and
operate facilities and parks for public recreation; and the District is authorized by acts governing
It to maintain and operate a regional Trail forpublic use; and
WHEREAS, District has indicated its desire that this channel be operated and maintained so
that a regional Trail connection can be operated and maintained on the Channel embankments;
and
WHEREA$, as used in this Sublicense Agreement, "Trail" shall refer to a 20-foot-wide corridor
located on the most easterly bench of the Property, Alamo Canal (Line 7F), South San Ramon
Creek (Line 7 J), and Line 7 J6, described in Exhibit "A" attached, which may Include, subject to
Districfs approval and inspection as provided in Section IX, an asphalt or concrete path,
shoulder, signs, bridges, entrance gates and bollards, drainage facilities, and barrier fencing or
walls; and
WHEREAS, District will and shall hold City free from all liability and claims for damages as
described in Section XVI, "LIABILITIES".
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NOW, THEREFORE, BE IT MUTUALLY AGREED that for and in COnsideration of the promises
herein and the covenants hereinafter contained and the mutual benefits to be derived by both
parties, City hereby confers upon District the Sublicense and privilege to use certain real
properties for a regional Trail connection. These said properties shall be known as Alamo
Canal, South San Ramon Creek and Line J-6, as shown on Exhibit A attached. These
properties may be supplemented from time to time by written mutual assent of the parties. The
description of such additional properties, when agreed upon by City and District, in writing, shall
be noted by attachment to this Sublicense Agreement. Such Sublicense shall be for the
purpose of maintaining and operating a regional Trail connection, which may include bridges.
District accepts said Sublicense and responsibility, and both parties agree to the conditions
hereinafter set forth:
SECTION I. PROPERTY RIGHTS
This Sublicense Agreement and its acceptance and exercise grants no Property interest or
estate In the aforesaid real properties to District other than as herein set forth.
SECTION I( TERM
This Sublicense is granted for a term of fifty (50)' years from the date hereof with an optIon to
Dh¡¡trlct of renewal for an additional period of fifty (50) years thereafter upon application therefor
accompanied by a showing of faithful exercise thereof according to the covenants herein; either
this original grant or any renewal thereof to be subject to termination under the covenants
provided herein to govern such termination.
SECTION III. NON-EXEMPTION
This Sublicense Agreement does not and shall not be interpreted to grant District any rights to
proceed with such maintenance and operation of said regional Trail connector thereunder
without compliance with all applicable Federal or State Laws or local ordinances or the
obtaIning of permits or authorization required by the City or any other public agency, nor shall it
be construed as authorizing any zoning variance or establishing any precedent for similar
variance.
"
SECTION IV. REAL PROPERTY
This Sublicense shall apply to real property within Zone 7 of Alameda County Flood Control and
Water Conservation District acquired by City in and about the City of Dublin pursuant to the
1987 Agreement and the 1995 Modification Agreement. The properties referred to herein as
Alamo Canal (Line 7F), South San Ramon Creek (Line 7J), and Line 7J6 are shown on Exhibit
A which is attached hereto and made a part hereof.
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SECTION V. MASTER LICENSE
This Sublicense Agreement is subject to the terms and conditions of the 1987 License and
1995 Modification Agreement. District hereby acknowledges the title of Alameda County Flood
Control and Water Conservation District, Zone 7, in and to the Alamo Canal (Line 7F), South
San Ramon Creek (Line 7 J), and. Line 7 J6 Channel 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 City nor District have or claim any right
to use the Alamo Creek (Line 7f), South San Ramon Creek (Line 7j), or Line 7J6 Property
beyond those specifically given in the 1987 Agreement and the 1995 Modification Agreement.
District has received a copy of the 1987 Agreement and the 1995 Modification Agreement and
agrees to abide by all terms of the 1987 Agreement and the 1995 Modification Agreement
where applicable. City and District agree that if the terms and conditions of this Sublicense
Agreement should conflict with or be Inconsistent with those of the 1987 Agreement or 1995
Modification Agreement, the terms and conditions of the 1987 Agreement and 1995
Modification Agreement shall prevail.
.' SECTION VI. PAYMENT
This Sublicense shall not require payment of any rent or other charges to City by District for the
use of the aforesaid real Property for the purposes for which it is granted.
SECTION VII NATURE OF USE
This Property consists of a corridor which is used for flood control purposes. Any and all rights
granted by this Sublicense shall be subordinated to the uses mentioned hereof, as well as to all
other uses of the Property made or permitted by City.
District acknowledges that the use described hereof constitutes the primary use of the Property
and that District's use of Trail pursuant to this Sublicense is secOlldary and subordinate to said
primary. uses. District shall not, at any time, use or permit the public to use Trail in any manner
that will materially interfere with or impair said primary usa of the Property. All rights granted to
District hereunder are subject to all existing and future rights, rights of way, reservation,
franchises, and licenses in the Property, regardless of who holds the same, including CItY's and
Zone 7's right to use Trail for emergency or ma n~enance vehicle access or other purpose.
II
This Sublicense Agreement is entered into solely for the purpose of authorizing District to
provide such maintenance and operation of regional Trail connection on this Property for use by
the general pUblic without discrimination as to place of origin, race, age, sex, or religion.
SECTION VIII TERMINATION AND ABANDONMENT
a. If the License granted by the 1987 Agreement should terminate for any reason, by
abandonment, revocation or otherwise, this Sublicense Agreement shall also terminate,
provided that City provides District with a copy of any notice of revocation, termination or
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nonperformance it receives from Zone 7 which may affect the Trail. Upon such termination of
this Sublicense Agreement, District shall have no claim whatsoever upon City for the
reimbursement of any District cost in exercising District's rights under this Sublicense
Agreement.
b. If District fails to maintain the Trail or any portion thereof, to a level consistent with
District Standards as provided to Its other recreational facilities, for a period In excess of thirty
(3D) days, City may send to District a written Notice of Belief of Abandonment. If District fails to
respond to said Notice or fails to commence maintenance of Trail, or the portion of the Trail
specified in the Notice, within ninety (90) days following the delivery of said Notice to District,
the Trail or the portion of the Trail specified in the Notice shall be deemed abandoned by the
District.
c. If District breaches any material term ofthis Sublicense Agreement and, after thirty (3D)
Clays written notice from City to do so, fails to correct or commence correction of said breach,
then City shall have the right to terminate this Sublicense Agreement.
d. The City shall have the right to terminate this Sublicense Agreement with reasonable
cause, upon thirty (3D) days prior written notice to District. Upon revocation or termination of
this Sublicense Agreement or abandonment of all or part of the Trail, City shall have the right,
within ninety (90) days following such abandonment, termination, or revocation, to request
District to remove from the Alamo Creek, South San Ramon Creek, and Line J-6 Property, or
the portion abandoned, at District's sole expense, such portions of the Trail signs, markings,
gates, fences, and bollards, installed by District or at District's direction. If the District fails to
remove Trail signs, markings, fences and bollards, installed by District or at District's direction,
said Items may be removed by City at the District's expense which expense District agrees to
pay City promptly upon demand. .
e. Upon revocation or termination of this Sublicense Agreement or abandonment of all or
part of the Trail, all rights of District in and to the Trail, or such portion of the Trail as has been
abandoned, shall terminate and sole right, obligation and privilege to use the subject Property
under the License granted by the 1995 Modified Agreement, shall revert to City, unless the
License granted by the 1995 Modified-Agreement has been revoked or terminated by Zone 7.
SECTION IX. APPROVAL AND INSPECTION OF WORK
,\
District slJall not perform any constructiQn, reconstruction, remodeling, removal, or other work
on Tran,'excluding routine maintenance, without first obtaining City's and Zone 7 approval in
writing of said work. In seeking City's approval, District shall furnish to City a complete
description and sketch of the work proposed to be performed. In performing work approved by
City, District shall comply with all terms, conditions, and requirements imposed by City and shall
not deviate in any material manner from the description and sketch approved by CUy, without
first obtaining additional approval in writing from City.
District shall maintain Trail to provide continuous, unobstructed vehicle access which is twenty
(20) feet wide and fourteen (14) feet high. City has disclosed to District that the use of Trail
may include maintenance vehicles. District agrees to maintain and operate Trail surfaces to
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accommodate such use, and shall assume all responsibility for the repair and maintenance of
any damage that may be caused by the competent, usual, and responsible use of such
vehicles.
District shall not be required to obtain City's prior written approval for the perfonnance 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 Trail as previously approved in writing
by City, which repairs are necessary to protect the safety of the public and others. Except in the
case of emergency or routine maintenance, District shall consult City at least seven (7) days
before any major maintenance operations are performed by District. Work shall be done in
such a manner that City shall at all times be able to use and gain access to its facilities when
possible.
All work performed by District under this section shall be subject to inspection by City and/or
Zone 7. City shall hava the right to have an inspector, at its sole expense, at the site of the Trail
during the construction of the Trail.
SECTION X SIGN AND MARKINGS
District shall have the right to install appropriate infonnatlonal trail markings and signs. District
shall also install signs designating pennitted Trail uses by the general public, regulations
governing such uses, ,md specifically unauthorized motor vehicles.
SECTION XI PROHIBITED USES
Neither City nor District shall authorize any commercial or industrial activities to be conducted
on Trail, With the exceptions of the signs and markings pennitted by Section X of this
Sublicense Agreement. neither City nor District shall authorize any advertising or identification
signs or displays. Neither City nor District shall permit any type of motor vehicle to be driven or
parked on Trail, except those of City, Zone 7 or District being used for maintenance, patrol or
public safety purposes.
SECTION XII SUBORDINATE USE
,
The Alamo Canal (Line 7F), South San Ramon è~ek (Une 7J), and Line 7J6 properties
accommOdate Alameda County Flood Control and Water ConservatIon District's, Zone 7 canal,
necessary in the performance of its duties. Any and all rights granted or implied by this
Sublicense Agreement are limited to use of the surface of said Property for the uses described
herein and shall be subordinate to Zone 7's use of the Property, and to City's right to convey
rights to third party persons in said Property for other, different or additional purposes not
inconsistent with this Sublicense Agreement. The reconstruction, maintenance, removal and
repair of the Trail by District shall at no time and in no way whatsoever interfere with the
operations of Zone 7. Any rights the City conveys to a third party will not preclude the District's
use of the property for trail purposes.
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SECTION XIII. APPROVALS
Prior to the initial construction of Trail or any reconstruction thereof performed by City on the
Alamo Canal (Line 7F), South San Ramon Creek (Line 7J) and Line 7J6 Property, City shall
submit detailed plans to District. City shall not proceed with such work without the prior written .
approval of District's Design -Department. District shall review the plans and specifications in a
timely fashion and approval shall not be·unreasonably withheld.
District shall have the right to have an Inspector, at District's sole cost, at the site of the Trail
during the construction of Trail.
SECTION XIV. MAINTENANCE AND OPERATION
District shall cause the regional Trail connection facilities established pursuant to this
Sublicense Agreement to be maintained and operated in an orderly, safe, and sanitary manner
free from waste, litter, and other items resulting from public access to the Property and left by
parties other than City and its permittees in a manner consistent with other District trails. 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
Trail. If District fails to properly maintain the Property then, after thirty (30) days' prior written
notice specifying the need work, City may perform or cause to be performed the necessary
work at the expense of District, which expense District agrees to pay to City upon demand.
District agrees to keep the Trail free from weeds and other vegetation, and to abate weeds to
District fire standards
District shall maintain at its expense all Trail improvements, including Trail pavement, signs, and
bollards.
District shall maintain the condition of the Trail surface. District shall repave the Trail as would
be required by normal and reasonable use. District shall also repair the Trail if the Trail is
damaged during public use. District shall not be responsible if the Trail is damaged during Zone
. 7 maintenance of the Channel during flood control, drainage, or water conservation repair
measures. Zone 7 shall repair damage to the trail caused by Zone 7 maintenance or
construction activities.
District s~all adopt such rules and regulations it dèems necessary to facilitate the orderly
operation and control of the use of such properties by the public for regional Trail connection
purposes. If any such rule or regulation is contrary to the primary interest of flood control,
drainage, or water conservation or is deemed by City to be not in its best Interest as the
Property user, City may give notice of such fact to District and District shall change such rule or
regulation in conformance to City's request insofar as it may legally so do. This supports the
primary purpose of the Channel for flood control, drainage, and water conservation as
described in the 1987 Agreement and the 1995 Modification Agreement between Zone 7 and
City. Per the 1987 Agreement and the 1995 Modification Agreement, Zone 7 and City shaUbe
responsible for maintaining and operating the subject Trail as necessary for the purposes of
flood control, drainage, and water conservation; District shall be responsible for maintaining and
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operating the subject Trail as necessary for regional Trail connection purposes including, but
not limited to, facilities and bikeway signs installed by District.
SECTION XV PATROL
District agrees to devote the same standards and levels of public safety patrol as is necessary
to prevent unauthorized use of the trail and to protect the safety of the users ofthe Trail as it is
able to and does devote to its other recreation facilities. District's failure to provide such patrol
service shall constitute a breach of this Agreement and justify immediate termination of the
same.
SECTION XVI. LIABILITIES
District, Insofar as it may legally so do, shall indemnify, save, protect, defend, and hold
harmless City, its boards, officers, employees, agents and contractors from and against any and
all loss, liability, expense, claims, costs, suits, and damages, Including attorney's fees, arising
out of or connected with District's operations and performance or public use of Trail or Property,
except to the extent caused by negligence of City.
District shall maintain damage insurance or monetary coverage in an amount which will
adequately protect City from all such liabilities or claims, such amount to be no less than
$1,000,000 each person and $1,000,000 each occurrence for bodily injury or death and
$1,000,000 on each occurrence for Property damage. Policies for such insurance shall name
the City of Dublin, its boards, officers, employees, agents and contractors as additional insureds
and copies thereof, certificates of payment of premiums thereon, orother proof of insurance
acceptable to City, shall be furnished to City by District. It is agreed that such insurance or
monetary coverage as is afforded by the policy to East Bay Regional Park District, et. aI., shall
apply as primary insurance. No other insurance effected by East Bay Regional park District et.
aI., shall be called upon to contribute to a loss covered by the policy.
District has the right and option to self-insure the requirements under this section upon written
notice to City that District assumes the obligations in the place and stead of any insurance
carrier, any reference to failure of coverage notwithstanding. In the event that District elects to
salf-insure, District shall provide to City a certificate or other evidence of self-insurance ..
acceptable to City. ,\
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NotwithsÚ,mding any provision elsewhere in the Sublicense Agreement, CIty shall not be liable
for damages arising from District's actions or land use for regional Trail connection purposes. It
is understood between the parties that channels retain theIr natural state so that the regional
Trail connection can be operated and maintained on the "channel embankments for recreational
use by the general public.
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SECTION XVII. COSTS AND EXPENSES
By City's approval of regional Trail connection facilities, City in no way assumes any liability or
obligation whatsoever for any costs or expenses to be incurred by District under this Sublicense
Agreement for the purposes for which said Sublicense Agreement Is made.
$ECTION XVIII. RIGHTS AND DUTIES OF CITY
Notwithstanding any provisions elsewhere in this Sublicense Agreement, it is understood and
agreed by District that the primary purpose of the subject Property is flood control and water
conservation and that operations in furtherance of said purpose must take precedence over any
and all other uses ofthe subject site. City shall furnish to the District, when practicable, notice
of any flood control, drainage, or water conservation operations which would affect the facilities'
or operations or District and shall keep District informed, when practicable, of any conditions or
plans which might result in such operations.
City and its permittees shall have the right to suspend or to limit the use of the Trail by District
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, City shall provide District fifteen (15) days'
prior notice In writing, except in cases of emergency maintenance or repairs.
It is also agreed that, during the existence of this Sublicense Agreement, if It is required for the
City to do repair to the Trail for other purposes that the City will return the Trail to its condition
before repair.
It is also agreed that, during the existence of this Sublicense Agreement, District shall have all
reasonable and necessary rights to open and allow the public to enter the subject Property for
use of the regional Trail connection.
City shall be held responsible or liable for unavoidable damage or removal of any fences, gates,
asphalt or concrete paving, or other items which may be placed, installed, repaired or
constructed as part of Trail when City finds it necessary to accomplish work for the
maintenance, construction, repair, reconstruction or alteration of Property. However, City will
exercise reasonable care to minimize adverse impacts of such work upon Trail Property'and
shall replace in kind any improvements damaged,.-pr removed due to City's work.
"
SECTION XIX. DAMAGE TO PROPFRTY
It is understood and agreed by and between the parties hereto that the Property Is subject to
sliding, erosion, subsidence, and flooding, and that City 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 City such damage affects the integrity of the flood control measures. In
the event of any lesser damage, District shall perform such maintenance or repair as District
may deem necessary for proper and safe operation of Trail.
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SECTION XX POll UTION
District, at its expense, shall comply with all applicable laws, regulations, rules, and others, with
respect to its use of the Trail, 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 fumish satisfactory evidence of such compliance upon
request of City.
No hazardous materials shall be handled by District 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 District's employees, contractors or agents, District, at its expense, shall be obligated
to clean all the Property affected thereby to the satisfaction of City (insofar as the Property
owned or controlled by City is concerned) and any governmental body having jurisdiction
thereover, and shall Immediately' notify the City of any such occurrence.
To the extent permitted by law, District shall indemnify, hold harmless, and defend City, its
boards, officers, employees, agents, and contractors and such holders of user rights against all
liability, cost, and expense (including, without limitation, any fines, penalties, judgments,
litigation costs, and attorney's fees) Incurred by City and such other users as a result of
District's breach of this section or as a result of any such discharge, leakage, spillage, emission
or pollution, except to the extent such liability, cost or expense Is proximately caused by the
active negligence of City.
District shall pay all amounts due City under this section within ten (10) days after any such
amounts become due.
SECTION XXI. DRAINAGE
City agrees to maintain, at its expense, all longitudinal drainage and cross culverts not part of
the Trail. District agrees to maintain, at its expense, drainage facilities necessary for Trail's
operation.
SECTION XXII· FENCING
District agrees to maintain, at its expense, all fencing and barricades on the Property installed
by City o( District or at District's direction. District/shall not be responsible for the maintenance
of reside'ntial fencing installed by parties other than District.
SECTION XXIII VANDALISM
District 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.
9
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EXHIBIT
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SECTION XXIV GRAFFITI
District shall, at its own expense, promptly clean, repaint, or remove any graffiti placed by users
of the Trail on Trail improvements.
SECTION XXVII. ENCROACHMENT PERMITS
Zone 7 shall have the sole right to grant encroachment permits or rights of entry within the
Property for a specific purpose, I.e. maintenance by contractor. The encroachment permit shall
be for a limited time period and not on-going. Notification of encroachment permits granted and
plans approved by Zone 7 will be forwarded to District and City.
District shall obtain permits from all other agencies as required for construction of the Trail
improvements.
SECTION XXVI 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 Sublicense and are hereby abrogated and
nullified.
SECTION XXVII MODIFICATION
If, during the life of this Agreement, it becomes necessary to amend to add to the terms,
conditions, scope or requirements of this Sublicense Agreement, such amendment or addition
shall only be made after mutual agreement of the parties hereto and the execution of a written
modification of this Sublicense Agreement.
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SECTION XXVIII. NOTICE'S
All notices or other writings in this Sublicense Agreement provided to be given or made or
sent, or which may be given or made or sent, by any of the parties hereto the others, shall be
deemed to have been fully given or made or sent when made in writing and deposited in the
United States mail, registered or certified; postage prepaid, and addressed as follows:
To CITY OF DUBLIN:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
To DISTRICT:
East Bay Regional Park District
2950 Peralta Oaks Court
P.O. Box 5381
Oakland, CA 94605
..
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IN WITNESS WHEREOF, City and District have caused their corporate names to be affixed
hereto by their respective officers authorized to do so the day and year first above written.
EAST BAY REGIONAL PARK DISTRICT
BY
General Manager
APPROVED AS TO FORM:
BY
District Counsel
CITY OF DUBLIN
BY );4" 4Jð~
Guy
ATTEST:
BY ~.:t..{
APPROVED AS TO FORM:
\
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City Attorney
g:omlsVectlebrpd
12
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RESOLUTION NO. 16 - OS
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
. . . . . . * * .
APPROVING RECREATONAL USE LICENSE AGREEMENT BETWEEN THE CITY OF
DUBLIN (CITY) AND ZONE 7 OF THE ALAMEDA COUNTY FLOOD CONTROL AND
WATER CONSERVATION DISTRICT (ZONE 7) REGARDING THE REPLACEMENT OF THE
EXISTING 1987 LICENSE AGREEMENT AND MODIFICATION NOS. 1,1,3,4 AND 5,
AND THE ADDITiON OF A CHANNEL "PROPERTY TO THE LJCENSE
WHEREAS, Zone 7 and the City previously entered into a License Agreement on March 18,
1987, as authorized by City Council Resolution No. 15-87; and
WHEREAS, said License Agreement has been subsequently modified by Modification Nos. 1, 2,
3, 4, and 5 dated August 8, 1995, September 19, 2000, December 17, 2002, October 7, 2003, and
November 18,2003, as authorized by City Council Resolution Nos. 93-95, 170-00,232-02,200-03, and
228-03 respectively; and
WHEREAS. the City proposes to further amend the License Agreement to add to the channel
segments governed by the agreement one segment of the Ta!I8Ø.jara Creek Regional Trail fi"om a point
1,300 feet north of Gleason Drive to Somenet Drive, said segment being more precisely described ail
Parcels C, 0, and E (AS5e$Sor'a Parcel Nos. 986-030-001, 986-029-006 and 986-29-007) of Tract 7075
recorded April IS, 2001, in Book 257 of Maps at Pages 47-61, Official Records of Alameda County; and
WHEREAS, Zone 7 and the City concur that execution of a single replacement Recreational Use
License Agreement, inçtuding this trail segment, would be preferable to further modification of the existing
agreement; IIDd
WHEREAS, Zone 7 has agreed to allow the City the use of said flood control channel properties
fur park and recreational purposes within said channel properties; and
WHEREAS, Zone 7 is agreeable to IlUch \J/JC on condition that the City improves, maintains., a"d
operates such park and recreational fàcilities in a manner that will not interlere with basic flood control
purp0geS of the channel; and
WHEREAS, Zone 7 is agreeable to such use on condition that the Cíty holds Zone 7 !Tee fi"om all
líability and claims for damage in accordance with said Recreational Use License Agreement as adopted;
and
WHEREAS, it is mutually agreed between Zone 7 and the City to add said Tassajara Creek
øegment to the Recreational Use License Agreement for the privilege of using said parcels for park and
recreational facilities use under the tcnns of said License Agreement.
NOW, THEREFORE, BE 1'1' k:tSOLVED that the City Council of the City of Dublin does
hereby approve the Recreational U ge License Agreement between Zone 7 of the AJameda County Flood
Control and Water Coru¡ervalÍon District and the City of Dub tin, attached hereto as Bxhibit "A".
1
EXHIBIT 13.
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BE IT FURTHER RESOLVED that the City Clerk of the City of Dublin is hereby directed to
transmit a certified copy of this Resolution, along with duplicate executed copies of the Recreational Use
License Agreement to Zone 7 for the District's Board approval and processing.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 15th day of February, 2005.
AYES:
Councilmembers Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart.
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
Af't~~
Deputy CÎty Clerk
CI:IL'C-MTOS\2005.....IIJ'.b\02-IJ-<JJ..... ]6.05 Z7 ..,,,...1...... ogntdoc(fum 4.3)
2
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RECREATIONAL USE LlCENS~ AGREEMENT
THIS LICENSE AGREEMENT (hereinafter "LICENSE"), is made and entered Into thiS 16th
day of February, 2005, by and between Zone 7 of AlamecJa County Flood Control end Water
Conservation District, a body corporate and politic (hel'8lnafter ·ZONE 7") emd thl! City of
Dublin, a Municipal corporation (hereinafter "CITY").
RECITAL
A. Both parties are authorized by the acts governing them to plan. Improve, maintain and
operate facilities and par1<s for public recreation;
B. ZONE 7 has acoepted and/or will be accepting certain rights of way (hereinafter
"LICENSED AREAS"), which can be used for park and recreation uses in accordance
with this LICENSE AGREEMENT and amendments thereto;
C. CITY has indicated its desire that these rights of way be developed so that a park-like
atmosphere can be created within and about the LICENSED AREAS;
D. The purpose ofthis LICENSE AGREEMENT Is to amend and supersede the original
L.icense Agreemtlnt entered Into by the CITY and ZONE 7 on March 18, 1987, and all
modifications thereto; and
E. ZONE 7 Is agreeable to such use by CITY on the LICENSED AREAS and hereby grants
a non..excluslve LICENSE for said use upon the following termll and conditions.
NOW. THEREFORE, BE IT MUTUALLY AGREED as follows:
1. Permitted Use. Subject to the terms of this LICENSE, the CITY is permitted to construct,
improve, maintain and operate the LICENSED AREAS for par1< and recreation purposes.
2. licensed Areas. The LICENSED AREAS are Identified in Exhibit A (Location Map) and more
particularly described and delineated In Exhibits B-1 through 8-6, which are attached hereto and
made a part hereof.
3. Addit;onallicensed Areas. Additional LICENSED AREAS, as mutually agreed upon by CITY
and ZONE 7, may be added by written amendmel"lt to this LICENSE.
4. License Fee. This LICENSE shall not require peyment of any rent or other charges to ZONE 7
by CITY for the use of the LICENSED AREAS for the purposes for which it i5 permitted.
5. Term of License.
Ð. Tne term of this LICENSE shall be for twenty-five (25) years from the date of execution
of this LICENSE with an option to CITY of renewal for additional periods of twenty-five
(25) years thereafter upon application therefore accompanied by a showing of faithful
exercise thereof according to the covenants herein; either this original LICENSE or any
renewal thereof to be subject to termination under the covenants provided herein to
govern such termination. Renewals shall be subject to updating the conditions on us.e
of the LiCENSED AREAS.
b. CITY's obligations under Section 11 ("Indemnity") and Section 13 ('Waiver of Claims·)
shall survive the termination of this LICENSE.
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6. Limitations
a. This LICENSE is granted solely for the purpose of authorizing CITY to provide ptlrk
and recreational uses at the LICENSED AREAS for general public use without
dls<::riminatlon as to place of National origin, Ancestry, Ethnioity, race. color, gender,
age, marital status, pregnancy, sexual orientation (real or perceived), medical
condition, physical ô~ mental disability, or religion..
b. It is understood and agraed by CITY that the primary purpose for which ZONE 7 has
acquired and owns the LICENSED AREAS IS for flood control and water management
and that operations in furtheranolj of said purpose must take precedence over any and
all other uses of It'll;! subject LICENSED AREAS.
c_ ZONE 7 shall have all reasonable and necessary rights of entry to the subject
LICENSED AREAS, Including the right to alteration or repair and maintenance and
operation for flood control and water management purposes. Use of the LICENSED
AREAS by CITY or the public In general, shall be at all times subject to the primary use
of the aforesaid LICENSED AREAS for flood oontrol and water management purposes.
d. CITY shall obtain and comply with all required pelTTlits, agreemente andlor reguiatory
approvals relallng to the Improvement, maintenance or operation of the LICENSED
AREAS for park and recreational purposes including all federal, stale, or local
government requirements. This requirement includes compliance with CEOA as well as
any necessary construction, building or use permits, Including any progress inspections
that may be required by any regulatory body.
e. Prior to installation of any permanent facilities or landeC8pe improvements. CITY shall
submIt plans and specifloatlons and any relsted approvals required in 6.d. to ZONE 7
for review. The facility or improvements shall not be installed by CITY without first
obtaining written approval from ZONE 7's General Manager. Written approval shall not
be unreasonably withheld and said approval shall be given unless ZONE 7, in its sole
discretion, detørmlnes that such structures, facilities or improvements would interfere
with the primary use of said areas for flood control and water management purposes.
Zone 7 hereby acknowledges tnet ell permanent facilities and landr;;capa Improvements
on the Licensed Area6 as of February 16, 2006 have been approved by Zone 7 and do
not require furtner approvals under this subsection 6.e.
f. Should ZONE 7, in its sole discretion, reasonably detarmine that any of CITY's activities
or improvements interfere with any ZONE 7 activities or operations, ZONE 7 may
require CITY to elirnil'late said Interference, by providing CITY with written notice of
ZONE 7's requirement and the reasons therefore. Within 30 days of its receipt of
such notice, CITY shall proceed forthwith to remedy the problem, as directed by ZONE
7. In the event CITY falls to remedy or correct the problem within suoh thirty day period,
ZONE 7 may take suoh action as ZONE 7 d!!ems reasonably necessary to remedy such
interference, all at CITY's sole expan8e.
g. CllY agrees to abid!! by any fulutè LICENSED AREAS Rules and Regulations which
may be adopted by ZONE 7's Board of Directors.
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h. CITY 891'88$ to accept this LICENSE to the LICENSED AREAS on an "as-is" basis, a( d
ZONE 7 has no obligation for maintenance or repair of LICENSED AR=AS during the
term of this LICENSE.
i. CITY shall be solely responsible for any damage or loss to CITY's improvements
resulting from theft or vandalism or resulting from any other Ci\US!. ZONE 7 shall not
provide security for CITY's improvements nor LICENSED AREA in ganersl. ZONE 7
shall not be responsible for any loss or damage suffered by CITY (Including direct or
indirect loss or d:;lmage, or Incidental or consequential loss or damage) resulting from
any damage to CITY's Improvements or loss of use thereof suffered in connection with
this LICENSE.
J. Suspension or Limitation m Use: ZONE 7 shall have the right, without liability to CITY,
to suspend any licensed uses temporarily or to limit this LICENSE and the use of the
LICENSED AREAS by the CITY during such periods of time as ZONE 7 determines
that such suspension or limitation if;> necessary in the interest of public safety, m.tional
security, or the operation or maintenance of its flood or water facilities. Zanet 7 will
provide notice of its determination to suspend or limit use to CITY pursuant to section
14 of this License Agreement.
7. F='ark Maintenance Md ODerøtion
a. CITY shall cause any park and recreational improvements to be constructed,
maintained and operated in an orderly, safe, and sanitary memner at all times. Said
park and recreational improvements may include but not limited to: pathways for
bicycle, pedestrian or equestrian uses, non·standard flood control fencing, Information
and warning signs and landscaping.
b. The removal of litter, vegetation and other Items from the LICENSED AREA shall be the
responsibility of the CITY.
c. The LICENSED AREA may be subject to slides, erosion, subsidence, flooding and
other damages. 11'1 the event that CITY's use of the LICENSED AREA Is Impacted by
such damages, ZONE 7 will make Its best efforts to repair ZONE 7's facilities to Zone
7 standerds: however, such repairs will be subject to available funding and other
melintenance priorlUes as determined by ZONE 71n Its sole discretion: ~epair af
dllmage to recreational fMllltles shall be the responsibility of CITY and at CITY's sole
cost. CITY shall perform such repair, as CITY may deem necessary for proper and safe
operation of the LICENSED AREA.
d. In the performance of routine and/or emergency repair activities ZONE 7 will exercise
reasonable cere to avoid removal or damage to existing CITY installed structures and
improvements and CITY, at its sole cost, shall be responsible for any reinstallation,
repair or reconstruction work.
a. CITY agrees to give Zone 7 reasonable notice of Its major maintenance activities
that may conflict with ZONE 7's maintenance of its flood oontrol channel. Major
maintenance activities include but are not limitad to work on any permanent structure,
facility and/or vegetation work that may conflict with ZONE 7's maintenance of its flood
control channel properties.
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f. CITY shall adopt such rules and regulations as it deems necessary to facilitate the
orderly and safe opflration and control of the use of the LICENSED AREAS by the
public for recreational purposes, If ¡my such rule or regulation is contrary to the primary
interest of flood control and water management, or is deemed by ZONE 7 to be adverse
to its interest, ZONE 7 may give 60 days notice of such fact to CITY and CITY shall
change such rule or regulstion in conformance with ZONE 7'5 requc:¡st.
8. Violations of Permitted Use. Should the CITY, its employees, contractors, subcontractors,
agents, or the general public construct, install, operate or maintain any park improvements in
violation of the terms of this LICENSE, or in violation of any of the approvels granted hereunder,
ZONE 7 may direct CITY, at CITY's sole cost, to remove the ímprovement!!l from the LICENSED
AREAS or to take other remedial action, as ZONE 7 may, in its sole discretion, determine to be
ç¡ppropriate CITY shall be afforded a period of fifteen (15) da)'5, within which to cure any such
violations and comply with ZONE 7's directive. In the event CITY fells to cure within the
above stated period, ZONE 7 shall have the right to take any end all actions to remediate the
LICENSED AREAS and CITY shall reimburse ZONE 7 for aU costs associated therewith. Zone
7, as it reasonably determines, may extend the period as may be necessary to cure the default,
provided that the City has commenced the cure within the fifteen (15) day period.
9. AssiQnment. CITY may assign all of its rights, duties and liabilitin under this LICENSE to
another public agency provided that such assignment Is agreeable to ZONE 7 and provided
further that such agency gives written notice to ZONE 7 that it accepts ell of the rights, duties
and liabilities imposed upon CITY under this LICENSE.
1 Q. Acknowledament of Title. It Is understood and agreed that CITY, by the acceptance of this
LICENSE and by the use or occupancy of said LICENSED AREAS, has not acquired and shall
not acquire hereafter eny property rights or Interest in or to said LICENSED AREAS through this
LICENSE, and thet CITY may use the LICENSED AREAS only as herein provided. ZONE 7
shell retain the right to sell or change areas, but in the event that CITY Is damaged by such
:¡Jction, CITY shall be compensated for any damage to facilities whloh It has Installed. ZONE 7
may elect to compensate CITY for c:lepreciated value of such facilities In lieu of compensation of
damages.
11. Indemnity
CITY shall indemnify, d¡,¡fend, reimburse and hold harmless ZaneT, its officers, agents,
contractors end, employees (collectively, "Indemnitees") from and against any and all
demands, claims, legal or administrative procaedlngs, losses, costs, penalties, fines,liens,
judgments, damages and liabilities of any kind (collectively, "liabilities"), arising in any manner
out of: (a) any injury to or death of ¡;Iny peri"lon or dameg'" to or destruction of MY property
occurring irl, on or about the SITE, or any part thereof, whether the per50n or property of CITY,
its officers, agents, employees, contracton> and subcontractors (collectively, "Agents"), its
invitees, guests or business visitors or third persons (collectively. "Invltees"), relating In any
manner to any use or activity under the LICENSE and modifications thereto; (b) any failure by
CITY to faithfully observe or perform any of the terms, covenants or conditions of this LICENSE
or (c) the use of the SITE or any activities conduoted thereon by CITY, Its Agents or Invltees.
This provision applies except to the extent of Liabilities resulting directly from the sole
negligence or willful misconduct of ZONE 7 or ZONE 7's authorized representatives.
The foregoing indemnity shell include, without limitation, reasonable attorneys' and consultants'
fees, investigation and remediation costs and all other reasorlable costs and expenses incurred
by the Indemnitees, including, without limitation, damages for decrease in the value of the SITE
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and claims for damages or decreases in the value of adjoining prQperty. CITY shall have an
immediate and independent obligation to dßfend ZONE 7 from any claim which actually or
potentially falls within thlelndemnlty provision even If such allegation is or may be groundless,
fraudulent or false, which obligation arises at the time such claim is·tendered to CITY by ZONE
7 and continues at all times thereafter. CITY's obligations under this Condition shl!lll s\Jrvive the
expiration or termination of the L.ICENSE and modifications thereto.
12. Insur'ance Reoulrements
CITY shall cany public liability and property damage insurance or monetary coverage in an
amount which will adequately protect ZONE 7 from all such liabilities Qr claims, such amount
to be no less than $1,000,000 each person and $1,000,000 each occurrence for bodily injury
Qr death and $1,000,000 on each occurrence for property damage. These amounts shall be
reviewed by the parties every five years, and Increased by no lass than the amount of increase
in the Consumer Price Index for the Oakland - San Francisco SMSA. Policies for such
insurance shall name ZONE 7 of Alameda County Flood Conlrol and Water Conservation
District, Alameda County Flood Control and Water Conservation District, the County of
Alameda, their officers, agents and err\ployees illS additionally Insured and copies thereof,
cørtificates of payment of premiums thSrI!on. or other proof of Insurance or monetary coverage
acceptable to ZONE 7, shall be furnished ZONE 7 by CITY. It Is agreed that such insurance or
monatary coverage as is afforded by the policy to ZONE 7 of Alameda County Flood Control
and Water Con&arvallon District. et al., shall apply as primary insurance or monetary coverage.
No other insurence or monetary coverage effected by ZONE 7 of Alamtlda County Flood
Control and Water Conservation District, et aI., shall be called upon to contribùte to a 1088
covered by the policy.
CITY has the right and option to self-insure Ihe requirements under this Section 12 upon written
notice to ZONE 7 that CITY assumes the obligations in the place ar'ld stead of any InsUrl!m;e
carrier, any reference to failure to coverage notwithstanding. In the event that CITY elects to
self-insura, CITY shall provide to ZONE 7 B certificate or other evidence of self-insurance
acceptable to ZONE 7.
13_ WeiverorClaims
CITY fully releases, waives, and discharges forever any and all claims, demands, rights and
cause of action against, and covenants not to sue, Indemnities, under any present or future
laW$, statutes, or regulations: (a) for any claim or event relating to the condition of the SITE
or CITY's use thereof; or (b) In the event thet ZONE 7 exercises its right tQ suspend, revoke
or terminate the LICENSE.
14. Duties of ZONE 7. ZONE 7 agrees to give CITY reasonable notice of flood control and water
management operations and maintenance which would affect recreational facilities or park
operations of CITY and kaep CITY informed of any conditions which might result in such
operations and maintenance. ZONE 7 further agrees to furnish any plans for improvements
to the LICENSED AREAS to the CITY for review and comments. ZONE 7 will maintain the
LICENSED AREAS to the extent necessary for flood control and waler management purposes.
Repairs to flood and water facilities/structures shall bé the responsibility of ZONE 7 8)((Jept when
such repairs arise from damage caused to these fadlities/slructures by CITY, its officers,
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agents, employee$, oontractors and subcontractors, its invitees, guests or bUliiness visitors or
third persons. Such ZONE 7 responsibilities shall not relieve the CITY from its Liabilities as
described in Section 11.
15. ProDarW Taxas. Pursuant to Califomia Revenue and TaxatIon Code 51!ction 107.6, notice Is
heraby given that CITY is responsible for any possessory interest taxes that may be imposed as
a result of, or relet8d to, this LICENSE.
16, Notice. Any demand or notice which either party shall ba required, or may desire to maks upon
or give to the other shall be in writing and shall be delivered personally upon the other or be
sant by prepaid certified mail to the respective parties as follows:
ZONE 7:
Genaral Manager
Zone 7, Alameda County Flood Control
And Water Conservation District
100 North Canyons Parkway
Livermore, CA 94551
CITY:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Either party may, from time to time. designate any other address for this purpose by written
notice to the other party, given with 10 business dayS' notice.
17. Miscellaneous
a. This LICENSE constituts5 the entire LICENSE and understanding between the parties,
and supersedes all offers, negotiations and other agreements conceniing the subject
matter containad herein. Any amendments to this LICENSE must be in writing and
exeouted by both parties.
b. If any provision of this LICENSE Is Invalid or unenforceable with respect to any party,
the I'8malnder of this LICENSE or the application of such provision to persons othør
than those as to whom It is held invalid or unenforceable, shall not be effected and each
provision of this LICENSE shall be valid and enforceable to the fullest extents pørmltted
bylaw.
c. This LICENSE shall be governed by the laws of the State of California.
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IN WITNESS WHEREOF. the parties hereto have executed this LICENSE on tns dates
appearing below their respective authorized signatures.
ZONE 7:
Zone 7 of Alameda County Flood Control
and Water Conservation District
CITY:
City of Dublin
By:
President
Zone 7 Board of Directors
Date:
Date:
d- \ l~ O.ç
Approved as to Form
Amy Naameni
Deputy County Counsel
B'
ATTEST:
A \ \ (ì ~ A::L.-..
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Kay Keck, City Clerk .'
APPROVED AS TO FORM:
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Elizabeth Silver. City Attorney
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RESOLUTION NO. 94 . 95
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING SUBLICENSE AGREEMENT BETWEEN
THE CITY OF DUBLIN AND THE EAST BAY REGIONAL PARKS DISTRICT
REGARDING THE USE AND OPERATION OF FLOOD CONTROL CHANNEL FOR
A REGIONAL TRAIL CONNECTION
WHEREAS, Alameda County Flood Control and Water Conservation District,
Zone 7 (hereinafter "Zone 7"), is the owner of certain real property within the limits of
Alameda County which is used primarily as a conveyance channel for flood control,
drainage, and water conservation purposes (hereinafter "District"); and
WHEREAS, on March 18, 1987, Zone 7 and City entered into a License
Agreement (Hereinafter "1987 Agreement"). The 1987 Agreement was amended on August
8, 1995, by a modification to the 1987 Agreement (hereinafter "1995 Modification
Agreemenf). The terms and conditions of the 1987 Agreement and the 1995 Modification
Agreement are incorporated herein by this reference, permitting City to use the Channel
Property for Trail purposes (hereinafter "Trail"); and
WHEREAS, the City is authorized by the acts governing it to plan, improve,
maintain and operate facilities and parks for public recreation; and the District is authorized
by acts governing it to maintain and operate a regional Trail for public use; and
WHEREAS, East Bay Regional Park District (hereinafter "District") has
indicated its desire that this channel be operated and maintained so that a regional Trail
connection can be operated and maintained on the Channel embankments; and
WHEREAS, as used in this Sublicense Agreement "Trail" shall refer to a 2Q...
foot-wide corridor located on the most easterly bench of the Property, Alamo Canal (Line
7F), South San Ramon Creek (Line 7J), and Line 7J6, described in Exhibit 'W attached,
which may include, subject to District's approval and inspection as provided in Section IX, an
asphalt or concrete path, shoulder, signs, bridges, entrance gates and bollards, drainage
facilities, and barrier fencing or walls; and
WHEREAS, District will and shall hold City free from all liability and claims for
damages as described in Section XVI, "LIABILITIES",
NOW, THEREFORE, BE IT RESOLVED that for and in consideration of the
promises herein and the covenants hereinafter contained and the mutual benefits to be
derived by both parties, City hereby confers upon District the Sublicense and privilege to use
EXHIBIT c.
to f.."-e. ;t(c;,.if:,6él?te;tIT
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certain real properties for a regional Trail connection. These said properties shall be known
as Alamo Canal, South San Ramon Creek and Line J-6, as shown on Exhibit A attached.
These properties may be supplemented from time to time by written mutual assent of the
parties. The description of such additional properties, when agreed upon by City and
District, in writing, shall be noted by attachment to this Sublicense Agreement. Such
Sublicense shall be for the purpose of maintainin~ and operating a regional Trail connection,
which may include bridges. District accepts said Sublicense and responsibility, and both
parties agree to the conditions hereinafter set forth in Exhibit A.
PASSED, APPROVED AND ADOPTED this 8th day of August, 1995.
AYES;
Councilmembers Barnes, Burton, Howard, Moffatt and Mayor
Houston
NOES:
ABSENT:
None
None
)h¡j~
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SUBLICENSE AGREEMENT
(ALAMO CANAL (Line 7F), SOUTH SAN RAMON CREEK (Line 7J), LINE 7J6)
CITY OF DUBLIN
TO
EAST BAY REGIONAL PARK DISTRICT
THIS SUBLICENSE LICENSE AGREEMENT (hereinafter "Sublicense Agreement"), made and
entered into this 8th. day of August, 1995, by and between the Sub licensor, CITY OF
DUBLIN, a Municipal Corporation, (hereinafter "City") and Sublicensee, EAST BAY REGIONAL
PARK DISTRICT, a California special district, (hereinafter "District").
RECITALS
WHEREAS, Alameda County Flood Control and Water Conservation District, Zone 7
(hereinafter "Zone 7"), is the owner of certain real property within the limits of Alameda County
which is used primarily as a conveyance channel for flood control, drainage, and water
conservation purposes (hereinafter "Channel").
WHEREAS, on March 18, 1987, Alameda County Flood Control District, Zone 7, and City
entered into a License Agreement (hereinafter "19B7 Agreement"). The 1987 Agreement was
amended on AU9ust 8,1995, by a modification to the 1987 Agreement (hereinafter "1995
Modification Agreement"). The terms and conditions of the 19B7 Agreement and the
Modification Agreement are Incorporated herein by this reference, permitting City to use the
Channel Property for Trail purposes (hereInafter "Trail").
WHEREAS, the City is authorized by the acts governing it to plan, improve, maintain and
operate facilities and parks for public recreation; and the District is authorized by acts governing
it to maintain and operate a regional Trail for public use; and
WHEREAS, District has indicated its desire that this channel be operated and maintained so
that a regional Trail connection can be operated and maintained on the Channel embankments;
and
WHEREAß, as used in this Sublicense Agreeme'm, "Trail" shall refer to a 20-foot-wide corridor
located on the most easterly bench of the Property, Alamo Canal (Line 7F), South San Ramon
Creek (Line 7J), and Line 7J6, described in Exhibit "A" attached, which may include, subject to
District's approval and inspection as provided in Section IX, an asphalt or concrete path,
shoulder, signs, bridges, entrance gates and bollards, draInage facilities, and barrier fencing or
walls; and
WHEREAS, District will and shall hold City free from all liability and claims for damages as
described in Section XVI, "LIABILITIES".
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NOW, THEREFORE, BE IT MUTUALLY AGREED that for and in consideration of the promises
herein and the covenants hereinafter contained and the mutual benefits to be derived by both
parties, City hereby confers upon District the Sublicense and privilege to use certain real
properties for a regional Trail connection. These said properties shall be known as Alamo
Canal, South San Ramon Creek and Line J-6, as shown on Exhibit A attached. These
properties may be supplemented from time to time by written mutual assent of the parties. The
description of such additional properties, when agreed upon by City and District, in writing, shall
be noted by attachment to this Sublicense Agreement. Such Sublicense shall be for the
purpose of maintaining and operating a regional Trail connection, which may include bridges.
District accepts said Sublicense and responsibility, and both parties agree to the conditions
hereinafter set forth:
SECTION I. PROPERTY RIGHTS
This Sublicense Agreement and its acceptance and exercise grants no Property interest or
estate in the aforesaid real properties to District other than as herein set forth.
SECTION II. TERM
This Sublicense is granted for a term of fifty (50) years from the date hereof with an option to
District of renewal for an additional period of fifty (50) years thereafter upon application therefor
accompanied by a showing of faithful exercise thereof according to the covenants herein; either
this original grant or any renewal thereofto be subject to termination under the covenants
provided herein to govern such termination.
SECTION III. NON-EXEMPTION
This Sublicense Agreement does not and shall not be interpreted to grant District any rights to
proceed with such maintenance and operation of said regional Trail connector thereunder
without compliance with all applicable Federal or State Laws or local ordinances or the
obtaining of permits or authorization required by the City or any other public agency, nor shall it
be construed as authorizing any zoning variance or establishing any precedent for similar
variance.
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SECTION IV. REAL PROPERTY
This Sublicense shall apply to real property within Zone 7 of Alameda County Flood Control and
Water Conservation District acquired by City in and about the City of Dublin pursuant to the
1987 Agreement and the 1995 Modification Agreement. The properties referred to herein as
Alamo Canal (Line 7F), South San Ramon Creek (Line 7J), and Line 7J6 are shown on Exhibit
A which is attached hereto and made a part hereof.
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SECTION V. MASTER LICENSE
This Sublicense Agreement is subject to the terms and conditions of the 1987 License and
1995 Modification Agreement. District hereby acknowledges the title of Alameda County Flood
Control and Water Conservation District, Zone 7, In and to the Alamo Canal (Line 7F), South
San Ramon Creek (Line 7 J), and Line 7 J6 Channel 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 City nor District have or claim any right
to use the Alamo Creek (Line 71), South San Ramon Creek (Line 7j), or line 7J6 Property
beyond those specifically given in the 19B7 Agreement and the 1995 Modification Agreement.
District has received a copy of the 19B7 Agreement and the 1995 Modification Agreement and
agrees to abide by all terms of the 1987 Agreement and the 1995 Modification Agreement
where applicable. City and District agree that if the terms and conditions of this Sublicense
Agreement should conflict with or be inconsistent with those of the 1987 Agreement or 1995
Modification Agreement, the terms and conditions of the 1987 Agreement and 1995
Modification Agreement shall prevail.
.' SECTION VI. PAYMENT
This Sublicense shall not require payment of any rent or other charges to City by District for the
use of the aforesaid real Property for the purposes for which it is granted.
SECTION VII NATURE OF lISF
This Property consists of a corridor which is used for flood control purposes. Any and all rights
granted by this Sublicense shall be subordinated to the uses mentioned hereof, as well as to all
other uses of the Property made or permitted by City.
District acknowledges that the use described hereof constitutes the primary use of the Property
and that District's use of Trail pursuant to this Sublicense is secondary and subordinate to said
primary. uses. District shall not, at any time, use or permit the public to use Trail in any manner
that will materially interfere with or impair said primary use of the Property. All rights granted to
District hereunder are subject to all existing and future rights, rights of way, reservation,
franchises, and licenses in the Property, regardless of who holds the same, including CitY's and
Zone 7's right to use Trail for emergency or maintenance vehicle access or other purpose.
'.
,I
This Sublícense Agreement is entered into solely for the purpose of authorizing District to
provide such maintenance and operation of regional Trail connection on this Property for use by
the general public without discrimination as to place of origin, race, age, sex, or religion.
SECTION VIII. TERMINATION AND ABANDONMENT
a. If the License granted by the 1987 Agreement should terminate for any reason, by
abandonment, revocation or othelWise, this Sublicense Agreement shall also terminate,
provided that City provides District with a copy of any notice of revocation, termination or
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nonperformance it receives from Zone 7 which may affect the Trail. Upon such termination of
this Sublicense Agreement, District shall have no claim whatsoever upon City for the
reimbursement of any District cost In exercising District's rights under this Sublicense
Agreement.
b. If District fails to maintain the Trail or any portion thereof, to a level consistent with
District Standards as provided to its other recreational facilities, for a period in excess of thirty
(30) days, City may send to District a written Notice of Belief of Abandonment. If District fails to
respond to said Notice or fails to commence maintenance of Trail, or the portion of the Trail
specified in the Notice, within ninety (90) days following the delivery of said Notice to District,
the Trail or the portion of the Trail specified in the Notice shall be deemed abandoned by the
District.
c. If District breaches any material term of this Sublicense Agreement and, after thirty (30)
days written notice from City to do so, fails to correct or commence correction of said breach,
then City shall have the right to terminate this Sublicense Agreement.
d. The City shall have the right to terminate this Sublicense Agreement with reasonable
cause, upon thirty (30) days prior written notice to District. Upon revocation or termination of
this Sublicense Agreement or abandonment of all or part of the Trail, City shall have the right,
within ninety (90) days following such abandonment, termination, or revocation, to request
District to remove from the Alamo Creek, South San Ramon Creek, and Line J-6 Property, or
the portion abandoned, at District's sole expense, such portions of the Trail signs, markings,
gates, fences, and bollards, installed by District or at District's direction, If the District fails to
remove Trail signs, markings, fences and bollards, installed by District or at District's direction,
said items may be removed by City at the District's expense which expense District agrees to
pay City promptly upon demand.
e. Upon revocation or termination of this Sublicense Agreement or abandonment of all or
part of the Trail, all rights of District in and to the Trail, or such portion of the Trail as has been
abandoned, shall terminate and sole right, obligation and privilege to use the subject Property
under the License granted by the 1995 Modified Agreement, shall revert to City, unless the
License granted by the 1995 Modifled-Agreement has been revoked or terminated by Zone 7.
SECTION IX APPROVAL AND INSPECTION OF WORK
,\
District slJall not perform any construction, reconstruction, remodeling, removal, or other work
on Trail, excluding routine maintenance, without first obtaining City's and Zone 7 approval in
writing of said work. In seeking City's approval, District shall furnish to City a complete
description and sketch of the work proposed to be performed. In performing work approved by
City, District shall comply with all terms, conditions, and requirements imposed by City and shall
not deviate in any material manner from the description and sketch approved by City, without
first obtaining additional approval in writing from City,
District shall maintain Trail to provide continuous, unobstructed vehicle access which Is twenty
(20) feet wide and fourteen (14) feet high. City has disclosed to District that the use of Trail
may include maintenance vehicles. District agrees to maintain and operate Trail surfaces to
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accommodate such use, and shall assume all responsibility for the repair and maintenance of
any damage that may be caused by the competent, usual, and responsible use of such
vehicles.
District shall not be required to obtain City'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 Trail as previously approved in writing
by City, which repairs are necessary to protect the safety of the public and others. Except in the
case of emergency or routine maintenance, District shall consult City at least seven (7) days
before any major maintenance operations are performed by District. Work shall be done In
such a manner that City shall at all times be able to use and gain access to its facilities when
possible.
All work performed by District under this section shall be subject to Inspection by City and/or
Zone 7. City shall have the right to have an inspector, at its sole expense, at the site of the Trail
during the construction of the Trail.
SECTION X SIGN AND MARKINGS
District shall have the right to install appropriate informational trail markings and signs. District
shall also install signs designating permitted Trail uses by the general public, regulations
governing such uses, and specifically unauthorized motor vehicles.
SECTION XI PROHIBITED USES
Neither City nor District shall authorize any commercial or industrial activities to be conducted
on Trail. With the exceptions of the signs and markings permitted by Section X of this
Sublicense Agreement, neither City nor District shall authorize any advertising or identification
signs or displays. Neither City nor District shall permit any type of motor vehicle to be driven or
parked on Trail, except those of City, Zone 7 or District being used for maintenance, patrol or
public safety purposes.
SECTION XII. SUBORDINATE USE
,\
The Alamo Canal (Line 7F), South San Ramon c'reek (Line 7 J), and Line 7 J6 properties
accommodate Alameda County Flood Control and Water Conservation District's, Zone 7 canal,
necessary in the performance of its duties. Any and all rights granted or implied by this
Sublicense Agreement are limited to use of the surface of said Property for the uses described
herein and shall be subordinate to Zone 7's use of the Property, and to City's right to convey
rights to third party persons in said Property for other, different or additional purposes not
inconsistent with this Sublicense Agreement. The reconstruction, maintenance, removal and
repair of the Trail by District shall at no time and in no way whatsoever interfere with the
operations of Zone 7. Any rights the City conveys to a third party will not preclude the District's
use of the property for trail purposes.
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SECTION XIII. APPROVALS
Prior to the initial construction of Trail or any reconstruction thereof performed by City on the
Alamo Canal (Line 7F), South San Ramon Creek (Line 7J) and Line 7J6 Property, City shall
submit detailed plans to District. City shall not proceed with such work without the prior written
approval of District's Design Department. District shall review the plans and specifications in a
timely fashion and approval shall not be unreasonably withheld.
District shall have the right to have an inspector, at District's sole cost, at the site of the Trail
during the construction of Trail.
SECTION XIV. MAINTENANCE AND OPERATION
District shall cause the regional Trail connection facilities established pursuant to this
Sublicense Agreement to be maintained and operated in an orderly, safe, and sanitary manner
free from waste, litter, and other items resulting from public access to the Property and left by
parties other than City and its permittees in a manner consistent with other District trails. 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
Trail. If District fails to properly maintain the Property then, after thirty (30) days' prior written
notice specifying the need work, City may perform or cause to be performed the necessary
work at the expense of District, which expense District agrees to pay to City upon demand.
District agrees to keep the Trail free from weeds and other vegetation, and to abate weeds to
District fire standards
District shall maintain at its expense all Trail improvements, including Trail pavement, signs, and
bollards.
District shall maintain the condition of the Trail surface. District shall repave the Trail as would
be required by normal and reasonable use. District shall also repair the Trail if the Trail is
damaged during public use. District shall not be responsible if the Trail is damaged during Zone
. 7 maintenance of the Channel during flood control, drainage, or water conservation repair
measures. Zone 7 shall repair damage to the trail caused by Zone 7 maintenance or
construction activities.
.'
District shall adopt such rules and regulations it deems necessary to facilitate the orderly
operation' and control of the use of such properties by the public for regional Trail connection
purposes. If any such rule or regulation is contrary to the primary interest of flood control,
drainage, or water conservation or is deemed by City to be not in its best interest as the
Property user, City may give notice of such fact to District and District shall change such rule or
regulation in conformance to City's request insofar as it may legally so do. This supports the
primary purpose of the Channel for flood control, drainage, and water conservation as
described in the 1987 Agreement and the 1995 Modification Agreement between Zone 7 and
City. Per the 1987 Agreement and the 1995 Modification Agreement, Zone 7 and City shall be
responsible for maintaining and operating the subject Trail as necessary for the purposes of
flood control, drainage, and water conservation; District shall be responsible for maintaining and
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operating the subject Trail as necessary for regional Trail connection purposes including, but
not limited to, facilities and bikeway signs installed by District.
SECTION XV. PATROL
District agrees to devote the same standards and levels of public safety patrol as is necessary
to prevent unauthorized use of the trail and to protect the safety of the users oHhe Trail as it Is
able to and does devote to its other recreation facilities. District's failure to provide such patrol
service shall constitute a breach of this Agreement and justify immediate termination of the
same.
SECTION XVI. LIABILITIES
District, Insofar as it may legally so do, shall indemnify, save, protect, defend, and hold
harmless City, its boards, officers, employees, agents and contractors from and against any and
all loss, liability, expense, claims, costs, suits, and damages, including attorney's fees, arising
out of or connected with District's operations and performance or public use of Trail or Property,
except to the extent caused by negligence of City.
Dismct shall maintain damage insurance or monetary coverage In an amount which will
adequately protect City from all such liabilities or claims, such amount to be no less than
$1,000,000 each person and $1,000,000 each occurrence for bodily injury or death and
$1,000,000 on each occurrence for Property damage. Policies for such insurance shall name
the City of Dublin, its boards, officers, employees, agents and contractors as additional insureds
and copies thereof, certificates of payment of premiums thereon, or other proof of Insurance
acceptable to City, shall be furnished to City by District. It is agreed that such insurance or
monetary coverage as Is afforded by the policy to East Bay Regional Park District, et. al., shall
apply as primary insurance. No other insurance effected by East Bay Regional park District at.
aI., shall be called upon to contribute to a 1088 covered by the policy.
District has the right and option to self-insure the requirements under this section upon written
notice to City that District assumes the obligations in the place and stead of any insurance
carrier, any reference to failure of coverage notwithstanding. In the event that District elects to
self-insure, District shall provide to City a certificate or other evidence of self-insurance '
acceptable to City.
I'
Notwiths'tanding any provision elsewhere in the Sublicense Agreement, City shall not be liable
for damages arising from District's actions or land use for regional Trail connection purposes. It
is understood between the parties that channels retain their natural state so that the regional
Trail connection can be operated and maintained on the channel embankments for recreational
use by the general public.
7
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SFCTION XVII COSTS AND EXPENSES
By City's approval of regional Trail connection facilities, City in no way assumes any liability or
obligation whatsoever for any costs or expenses to be incurred by District under this Sublicense
Agreement for the purposes for which said Sublicense Agreement is made.
SECTION XVIII. RIGHTS AND DUTIES OF CITY
Notwithstanding any provisions elsewhere in this Sublicense Agreement, it is understood and
agreed by District that the primary purpose of the subject Property is flood control and water
conservation and that operations in furtherance of said purpose must take precedence over any
and all other uses of the subject site. City shall furnish to the District, when practicable, notice
of any flood control, drainage, or water conservation operations which would affect the facilities
or operations or District and shall keep District informed, when practicable, of any conditions or
plans which might result in such operations.
City and its permittees shall have the right to suspend or to limit the use of the Trail by District
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, City shall provide District fifteen (15) days'
prior notice in writing, except in cases of emergency maintenance or repairs.
It is also agreed that, during the existence of this Sublicense Agreement, if it is required for the
City to do repair to the Trail for other purposes that the City will return the Trail to its condition
before repair.
It is also agreed that, during the existence of this Sublicense Agreement, District shall have all
reasonable and necessary rights to open and allow the public to enter the subject Property for
use of the regional Trail connection.
City shall be held responsible or liable for unavoidable damage or removal of any fences, gates,
asphalt or concrete paving, or other items which may be placed, installed, repaired or
constructed as part of Trail when City finds it necessary to accomplish work for the
maintenance, construction, repair, reconstruction or alteration of Property. However, City will
exercise reasonable care to minimize adverse impacts of such work upon Trail Property'and
shall replace in kind any improvements damaged:or removed due to City's work.
,I
SECTION XIX 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 City 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 City such damage affects the integrity of the flood control measures. In
the event of any lesser damage, District shall perform such maintenance or repair as District
may deem necessary for proper and safe operation of Trail.
8
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SECTION XX POLLUTION
District, at its expense, shall comply with all applicable laws, regulations, rules, and others, with
respect to Its use of the Trail, 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 City.
No hazardous materials shall be handled by District 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 District's employees, contractors or agents, District. at its expense, shall be obligated
to clean all the Property affected thereby to the satisfaction of City (insofar as the Property
owned or controlled by City is concerned) and any governmental body having jurisdiction
thereover, and shall immediately notify the City of any such occurrence.
To the extent permitted by law, District shall indemnify, hold harmless, and defend City, its
boards, officers, employees, agents, and contractors and such holders of user rights against all
liability, cost, and expense (Including, without limitation, any fines, penalties, judgments,
litigation costs, and attorney's fees) incurred by City and such other users as a result of
District's breach of this section or as a result of any such discharge, leakage, spillage, emission
or pollution, except to the extent such liability, cost or expense is proximately caused by the
active negligence of City.
District shall pay all amounts due City under this section within ten (10) days after any such
amounts become due.
SECTION XXI DRAINAGE
City agrees to maintain, at its expense, all longitudinal drainage and cross culverts not part of
the Trail. District agrees to maintain, at its expense, drainage facilities necessary for Trail's
operation.
SECTION XXII FENCING
District agrees to maintain, at its expense, all fenging and barricades on the Property installed
by City or District or at District's direction. District/shall not be responsible for the maintenance
of residential fencing installed by parties other than District.
SECTION XXIII VANDALISM
District 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.
9
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SECTION XXIV. GRAFFITI
District shall, at its own expense, promptly clean, repaint, or remove any graffiti placed by users
of the Trail on Trail improvements.
SECTION XXVII. ENCROACHMENT PERMITS
Zone 7 shall have the sole right to grant encroachment permits or rights of entry within the
Property for a specific purpose, Le. maintenance by contractor. The encroachment permit shall
be for a limited time period and not on-going. Notification of encroachment permits granted and
plans approved by Zone 7 will be forwarded to District and City.
District shall obtain permits from all other agencies as required for construction of the Trail
improvements.
SECTION XXVI. 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 Sublicense and are hereby abrogated and
nullified.
SECTION XXVII MODIFICATION
If, during the life of this Agreement, it becomes necessary to amend to add to the terms,
conditions, scope or requirements of this Sublicense Agreement, such amendment or addition
shall only be made after mutual agreement of the parties hereto and the execution of a written
modification of this Sublicense Agreement.
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10
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SECTION XXVIII NOTICES
All notices or other writings in this Sublicense Agreement provided to be given or made or
sent, or which may be given or made or sent, by any of the parties hereto the others, shall be
deemed to have been fully given or made or sent when made in writing and deposited in the
United States mail, registered or certified: postage prepaid, and addressed as follows:
To CITY OF DUBLIN:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
To DISTRICT:
East Bay Regional Park District
2950 Peralta Oaks Court
P.O. Box 5381
Oakland, CA 94605
"
11
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IN WITNESS WHEREOF, City and Districthave caused their corporate names to be affixed
hereto by their respective officers authorized to do so the day and year first above written.
EAST BAY REGIONAL PARK DISTRICT
BY
General Manager
APPROVED AS TO FORM:
BY
District Counsel
CI1Y OF DUBLIN
BY )% , ~j&wÁ
Guy
ATTEST:
BY ~lìd:-1! ?f1J
'- 11 ~Ck, .l'c1tty Clerk
APPROVED AS TO FORM:
City Attorney
g:olm.Ve""'btpd
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Exhibit "0-1" Second Amendment to Sublicense Agreement l\locf '-\G
City of Dublin to East Bay Regional Park District
Tassajara Creek RegIonal Traíl
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Dublin Lots
D Sublicensed Areas
Class 1, Existing, Bicycle Trails
Maintained by EBRPD
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Exhibit "D-2" Second Amendment to Sublincense Agreement 41 ~ '-\q
CIty of Dublin to East Bay Regional Park District
Tassajara Creek Regional Trail
Dublin Lots
D Sublicensed Areas
Class 1, Existing, Bicycle Trails
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Maintained by EBRPD
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Exhibit "E" Future Amendment to Sublicense Agreement Lj-ß 6V 4C¡
City of Dublin to East Bay Regional Park District
Tassajara Creek Regional Trail
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