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HomeMy WebLinkAbout4.4 Alamo Canal & Tassajara rk Reg Trailsor 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL October 15, 2013 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #600 -40 SUBJECT: Approval of Third Amendment to Sublicense Agreement with East Bay Regional Park District Regarding Maintenance and Operation of the Alamo Canal and Tassajara Creek Regional Trails Prepared by Ferd Del Rosario, Senior Civil Engineer EXECUTIVE SUMMARY: The segment of the Alamo Canal Trail under Interstate 580 has been completed and is currently being maintained by the East Bay Regional Park District (Park District). The City's Sublicense Agreement with the East Bay Regional Park District regarding the maintenance and operation of the Alamo Canal and Tassajara Creek Regional Trails is being amended to formally assign maintenance responsibilities of this portion of the Alamo Canal Trail to the Park District and the City's agreement to pay its fair share of the maintenance costs. FINANCIAL IMPACT: Under the terms of the Third Amendment to the Sublicense Agreement with the East Bay Regional Park District, the City of Dublin will make an annual payment of $5,000 beginning January 1, 2014 for its fair share of the costs to maintain the newly constructed segment of the Alamo Canal Trail under 1 -580. Funds have been budgeted in Fiscal Year 2013 -14 to pay for the maintenance of the trail. The annual payment is set to begin January 2014 and will be subject to an annual general increase based on the Consumer Price Index for the San Francisco Bay Area. RECOMMENDATION: Staff recommends that the City Council adopt Resolution Approving the Third Amendment to Sublicense Agreement Between the City Of Dublin (City) and the East Bay Regional Park District (Ebrpd) regarding the Alamo Canal and Tassajara Creek Regional Trails. Submitted By Director of Public Works Reviewed By Assistant City Manager Page 1 of 2 ITEM NO. 4.4 DESCRIPTION: The City has a Recreational License Agreement with Alameda County Flood Control, Zone 7 which allows public recreational use of several Zone 7 properties including segments of the Alamo Canal, South San Ramon Creek, Tassajara Creek, and Alamo Creek. On August 8, 1995, the City entered into a sublicense agreement with the East Bay Regional Park District (Park District) which assigned maintenance responsibility of several regional trails, including the Iron Horse Trail (along South San Ramon Creek) and the Alamo Canal Trail to the Park District. The sublicense agreement was later amended in May 2003 to include the section of the Iron Horse Trail between Alamo Creek and the Dublin /Pleasanton BART Station in the Park District's maintenance responsibilities. On September 20, 2005, a second amendment to the sublicense agreement was approved by the City Council which included Tassajara Creek Trail (from Dublin Boulevard to Somerset Drive) in the Park District's maintenance responsibilities and added the City's requirement to pay the Park District for maintenance of said trail. A segment of the Tassajara Creek Trail from Somerset Drive to Hillbrook Place was also included in the agreement subject to its completion and acceptance by the City from the developer. In early 2013, the City completed construction of the Alamo Canal Trail under 1 -580 and turned over the maintenance to the Park District. The maintenance responsibilities include miscellaneous trail amenities consisting of video camera equipment, bike /pedestrian counter, trail lighting and power, emergency call boxes, collapsible fences and trail gates. The Park District is also responsible for closing the trail gates prior to projected flood events to prevent the public from accessing the area underneath the freeway. Dublin, Pleasanton and the Park District have agreed to pay one third each of the costs to maintain and operate the trail undercrossing. The annual maintenance cost was estimated at $15,000 and Dublin's fair share of the cost is $5,000. The annual payment is scheduled to begin in January 2014, subject to an annual general increase based on the Consumer Price Index for the San Francisco Bay Area. The proposed Third Amendment to the Sublicense Agreement with the Park District will add the segment of the Alamo Canal Trail underneath 1 -580 to the Park District's maintenance responsibilities and the City's requirement to pay the Park District its fair share of the maintenance costs. The amendment will also formally add the segment of Tassajara Creek Trail from Somerset to Hillbrook Place to the Park District's maintenance responsibilities. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A copy of the report was sent to Jim Townsend, EBRPD. ATTACHMENTS: 1. Resolution approving the Third Amendment to the Sublicense Agreement with EBRPD 2. Third Amendment to Sublicense Agreement with Exhibits Page 2 of 2 RESOLUTION NO. -13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVAL OF THIRD AMENDMENT TO SUBLICENSE AGREEMENT BETWEEN THE CITY OF DUBLIN (CITY) AND THE EAST BAY REGIONAL PARK DISTRICT (EBRPD) REGARDING THE ALAMO CANAL AND TASSAJARA CREEK REGIONAL TRAILS 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 Council Resolution No. 15 -87, allowing the City the use of certain 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 Use 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 on that portion of the Alamo Canal 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, which added the segment of the Iron Horse Trail from Alamo Creek to Dublin /Pleasanton BART Station; and WHEREAS, the City and EBRPD approved the Second Amendment to the Sublicense Agreement on September 20, 2005, which added the segment of the Tassajara Creek Regional Trail between Dublin Boulevard and Somerset Drive, and WHEREAS, the segment of the Tassajara Creek Regional Trail from Somerset Drive to Hillbrook Place has been completed and accepted by the City; and WHEREAS, the segment of the Alamo Canal Trail underneath Interstate 580 connecting the trails in Dublin and Pleasanton has been completed; and WHEREAS, the City and EBRPD have prepared a Third Amendment to the Sublicense Agreement, assigning the maintenance and operation of the segments of the Tassajara Creek Regional Trail from Somerset Drive to Hillbrook Place, and the Alamo Canal Regional Trail underneath 1 -580 to EBRPD. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin, by adopting this Resolution, hereby approves the Third Amendment to the 1995 Sublicense Agreement, attached hereto as Exhibit A, between the City of Dublin and the EBRPD. C:AUsers \agenda\Desktop\Item 4.4 Attachment 1 Reso.doc BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Third Amendment to the 1995 Sublicense Agreement. PASSED, APPROVED AND ADOPTED this 15th day of October, 2013. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk C:AUsers \agenda\Desktop\Item 4.4 Attachment 1 Reso.doc THIRD AMENDMENT TO SUBLICENSE ALAMO CANAL REGIONAL TR R CREEK OTRAIL AND CITY OF DUBL�W A. Effective Date and Parties: Effective January 1, 2014, the CITY OF DUBLIN, a political subdivision of the State of California ( "City ") and the EAST BAY REGIONAL PARK DISTRICT, a California special district, ( "District ") mutually agree as follows: B. Purpose: The parties desire to amend the Sublicense Agreement, dated August 8, 1995, entitled SUBLICENSE AGREEMENT — (ALAMO CANAL (LINE 7F) SOUTH SAN RAMON CREEK (LINE 7J), LINE 7J6) ( "Sublicense "). The Sublicense was created to maintain and operate a regional trail connection. This amendment to the Original Sublicense ( "Third Amendment ") allows the District to operate a segment of the Alamo Canal Regional Trail I -580 undercrossing, including areas of the Tassajara Creek Regional Trail. C. Amendment to Sublicense: As of September 2005, the Sublicense shall apply to the real property within Zone 7 Water Agency and the City of Dublin, pursuant to the sublicense agreement dated March 7, 1987 as amended and superseded by the February 15, 2005 agreement and the Sublicense Agreement, including the First and Second Amendments, approved in May 2003 and September 2005 respectively. The applicable area is shown in Exhibit A attached hereto. 1) The District agrees to maintain and operate the portion of the Alamo Canal Regional Trail 1 -580 undercrossing as shown in Exhibit A, and is subject to the standards described in Section XIV, MAINTENANCE AND OPERATION, of the Second Amendment to the Sublicense ( "Second Amendment "). 2) The District further agrees to maintain and operate the miscellaneous trail facilities installed underneath and adjacent to the 1 -580 freeway, including but not limited to: lighting and power, video camera equipment, bike /pedestrian counter, emergency call boxes, collapsible fence, and trail gates - all as described in the April 2013 Operations and Maintenance Manual for the Alamo Canal Regional Trail I -580 Undercrossing. 3) Beginning January 1, 2014, the City agrees to pay the District an additional $5,000.00 on or before January 1 st of each year, for maintenance of the trail undercrossing. Beginning January 1, 2015, this payment is subject to an annual 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). 4) This Third Amendment shall include the "Additional Property of the Tassajara Creek Trail" located within Parcel A of Tract 7414 and Lot 131 of Tract 7075 described as the "Future Sublicense Area" on Exhibit E to the Second Amendment, attached hereto as Exhibit B. 5) Except as modified by this Third Amendment, the Sublicense of August 8, 1995 shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the 15th of October in the year 2013. [signature page follows] By City Manager Attest: By City Clerk Approved as to form: B City Attorney 2131570.1 I 1:11KINUENS, L-02 General Manager Approved as to form: LIZZ District Counsel N, ALAMO CANAL TRAIL W+ EBRPD 1-580 / BART UNDERCROSSING Environmental Review& GAP CLOSURE GIS App a S e 0 5001,000 2,000 3,000 4,000 apt mbe Ilication 16 2 , 07 t/b atone/mxd projects/traill Feet alamo canal trail xd I LOCATION MAP . . . . . . . . . . . � . . . . . . .... )FIN P.W1 01 "J51",", 80 GA Z CLOSURE AREA (I 1V L U q, ia rg N IS is 01, SECOND AMENDMENT TO SUBLICENSE AGREEMENT (ALAMO CANAL (Line 7F), SOUTH SAN RAMON CREEK (Line 7J), Line 7J6) 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 7J), Line 7J6 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 7J), Line 7J6), 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 real 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 "13-1 and "D -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 of Tract 7075, Second Amendment to Sublicense Agreement Between City of Dublin and C=ast Bay Regional Park District 769604.4 (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 E, 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 1st 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- 84100). Upon modification of this agreement to include the portion of the trail within Parcel G of Tract 7414, pity 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 769684,4 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 grail 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 (34) 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. 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 B, 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 shall maintain at its expense all Trail improvements, including Trail pavement, signs, and bollards installed or approved by the District. Second Amendment to Sublicense Agreement Between City of Dublin and East Bay Regional Park District 769684.4 District shall maintain the condition of the Trall 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 lass, 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 certificate 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 E=mployer'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 4 City of Dublin and East Bay Regional Park District 769664.4 (b) Public Liability 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: $1,400,000 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 Coverage. 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 Perk District 789694,4 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 yor esi TT,. City Ierk A AS TO FORM: City Attorney Second Amendment to Sublicense Agreement Between City of Dublin and East Day Regional Park District EAST BAY REGIONAL PARK DISTRICT PFerjdeFjt — General Manager APPROVED AS TO FORM: - 4�sr — }� DI$trict 60unsel V T- 769684.4 (ALAMO CANAL (mine 7F), SOUTH SAN RAMON CREEK (Line 7J), LINE 74) 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 Sublicensor, CITY OF DUBLIN, a Municipal Corporation, (hereinafter "City ") and Sublicensee, EAST BAY REGIONAL PARK DISTRICT, a California special district, (hereinafter "District'). 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, .1 995, by a modification to the 1987 Agreement (hereinafter "'1 995 Modification Agreement"). 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 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 an the Channel embankments; and 4r WHEREAS, 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 7J), and Line 716, 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". NOW, THEREFORE, BE IT MUTUALLY AGREED that for and in consideration of the promises herein and the covenants hereina,fker. contained and the mutual benefits to be derived l y 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 Greek 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, 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. This Sublicense is granted for a term of fifty (50)'yeers from the date hereof with an option to District of renewal for an additional period of fifty (60) 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. 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 Train 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. { i 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. This Sublicense Agreement is subject to the terms and conditions of the 1987 License and 1995 Mad cation Agreement. District hereby acknowledges the title of Alameda County f=lood Control and Water Conservation Distdot, Zone 7, in and to the Alamo Canal (line 7F), South San l=umen Creek (Line 7J), and Line 7J5 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 tight 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 1996 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 1967 Agreement?or 1995 Modification Agreement, the terms and conditions of the 1887 Agreement and 9995 Modification Agreement shall prevail. 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. 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. 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. a. If the License granted by the 1 987 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, tennination or U. 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 falls 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 portlon 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 end, 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 Modified - Agreement has been revoked or terminated by Zone 7. t :16IT1.11 W1.191 ■ •� l�r■ t District shall 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 4 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 mariner that City shall at all times be able to use and gain access to its facilities when passible. 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. 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. Neither City nor District shall authorize any commercial or industrial activities to be conducted on `Grail. 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 X11, UBORDiN TAE The Alamo Canal (Line 7F), South San Ramon Creek (Line 7J), and Line 7J6 properties accommodate Alameda County Flood Control and Water Conservation District's, Zane 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 Ts 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. R Prior to the initial construction of Trail or any reconstruction thereof performed by City on the Alamo Canal (Line 7F), South San Ramon Creels (Line 7J) and Line 7JG 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. Districts hall 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, Ol 1 . G1 4 7a go 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 publio.for regional Trail connection purposes. If any such rule or regulation is contrary to the primary interest of fIQQd 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 M operating the subject Trail as necessary for regional Trail connection purposes including, but not limited to, facilities and bikeway signs installed by District. 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 o'l the 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. 4 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 small 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 eavh 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 et. al., shall be called upon to contribute to a loss covered ,by :the policy. District has the right and option to self - insum the requirements under this section capon 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. ka Notwithstanding any provision elsewhere in tho Sublioense 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 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. �� . : jai • • � 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 "frail 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, reconstructions 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. it is understood and agreed by and between the parties hereto that the Property is subject to sliding, erosion, subsidence, and Hooding, 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.disaretion 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 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 b 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. 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. SF-CIIQN I CIN District agrees to maintain, at its expense, all fencing and barricades on the Property installed by City oz District or at District's direction, DistricUshall not be responsible, for the maintenance of residential fencing installed by parties other than District. •r MM '►�l u 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. D lit -7j4S r+ e ` '' e • •'•� 'V ` Lei ml cl r�{� <f }: }.r �y�ry',r r '� k: �F �'r, ) � , �, �a,�,�_� " rwr�• ..0 wr, r® l.,���yy�f�7 • r I+ F� �p Err HE ?,',�1• 4', r' -��'[� ,� � a'��. . ���C 1- } 1' � X11 ' 1 � District shall, at its own expense, promptly clean, repaint, or remove any graffiti placed by users of the Trail on Trap improvements. Zone 7 shall have the sale 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 frQrn all other agencies as required for construction of the Trail improvements. 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. 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 wrltten modification of this Sublicense Agreement. 10 l W,4 ►� 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 9456$ ...r . To DISTRICT: Bast Bay Regional Park District 2950 Peralta Oaks Court P.O. Box 6381 Oakland, CA 94605 11 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. APPROVED AS TO FORM: BY District Counsel EAST BAY REGIONAL PARK DISTRICT BY General Manager CITY OF DUBLIN BY Guy uston, Mayor of Dublin ATTEST: BY ay eck, Cky Cleric APPROVED AS TO FORK da City Attorney i7:vFina 8dfibMd 12 RESOLUTION NO. 16 - 05 A RESOLUTION OF THE CITY COUNC& OF THE CITY OF DURLrN APPROVING RECREATONAL USE LICENSE AGREEMENT BE'T'WEEN Tl. CITY OF DU13L N (CITY) AND ZONE 7 OF THE ALA11+ EDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT (ZONE 7) RECARDYNG THE REPLACEMENT OF THE EXISTING 1987 LICENSE AGREEMENT AND MODTRCATION NOS. 1, 213* 4 AND 5, AND THE ADDITION OF A CRANNEL PROPERTY TO THE LICENSE NVREREAS, Zane 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 Agc=cnt has been subsequently modifiod by Modification Nos. 1, 2, 3, 4, and 5 dated August 8, 1995, September 19, 2000, December 17, 2002, 0mober 7, 2003, and November 18, 2003, as authorized by City Council Resolution Nos. 93 -95, 170.00, 23202, 200 -03, and 228 -03 respectively; and WHEREAS, the City proposes to fhnther amend the License Agreement to add to the channel sogmants governed by the agreement one segment of the Tassajam Creek Regional Trail from a point 1,300 feet north of Giaason Five to Somersat Drive, said sogrnesn being more precisely described as Parcels C, D, and E (Assessor's Parcel Nos. 986 - 030 -001, 986- 029 -006 and 986 -29 -007) of Tract 7075 recorded April 18, 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, including this trail segment, wmid be preferable to further modification of the existing agreement; and WHEREAS, Zone 7 has agreed to allow the City the use of said flood control channel properties for park and recreational purposes within said channel properties; and V REAS, Zone 7 is agreeable to such use on condition that the City improves, maintains, and operates such park and recreational facilities in a manner that vAll not interfere with basin flood control purposes of the charnel, and WHEREAS, Zone 7 is agreealle to such use on condition that the City holds Zone 7 free from all liability and claims for damage in accordance with said Recreational Use License Agre went as adopted, and WHEREAS, it is mutually agreed between Zone 7 and the City to add Wd Tunjara Creek sVnent to the Recreational Use License Agre nt for the privilege of using said parcels for park and recreational facilities use under the terms of said License Agreement. NOW, THEREFORE, BE IT R gOLVED that the City Council of the City of Dublin does hereby approve the Recreational Use License Agreement between Zone 7 of the Alameda County Flood Control and 'Water Conservation District and the City of Dublin, attached hereto as Exhibit "N' BE IT FURTHER RESOLVED that the City Clcrk of the City of Dublin is hereby directed to transmit a certified copy of this Resolution, along with duplicate executed copies of the Recreational 1_l'se License Agr=nent to Zone 7 for the District's Board approval and processing. BE IT FURTFIER RESOLVED that the Mayor is authorized to execute the agreement. PASSED, APPROVED AND ADOPTED this 1 5th day of February, 2005. AYES: Councilrnembers Hildenbrand, McCormick. Orate and Zika, and Mayor Lockhart. NOBS: None ABSENT- None ABSTAIN: done ""Mayor ATTEST: lulaot Deputy City Clerk [4:1L'L MTC}$1'E063 Ur11I'eb1Q^ .1 Srp3lr o 16-05V roc ww 1 ioem a agmRdoo (Ilan 4.3) PA RECREATIONAL USE LICENSE AGREEMENT THIS LICENSE AGREEMENT (hereinafter "LICENSE "), is made and entered into this 15th day of February, 2005, by and between Zone 7" of Alameda County Flood Control and Water Conservation District, a body corporate and politic (hereinafter "ZONE 7") and the City of Dublin, a Municipal Corporation (hereinafter 'CITY "). RECITAL A. Both parties are authorl;z-ad. by the acts governing them to plan, improve, maintain and operate facilities and parks for public recreation; B. ZONE 7 has acoapted and/or will be accepting certain rights of way (hereinafter 'LICENSED PLEAS' ), 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 of this LICENSE AGREEMENT Is to arnend and supersede the original License Agreement enti§red Into by the CITY and ZONE 7 on Mauch 18, 1997, and all modifications thereto; and E. ZONE 7 is agreeable tc such use by CITY on the LICENSED AREAS and hereby grarits a non- exclusive LICENSE for said use upon the following terms and conditions. NOW, THEREFORE, BE IT MUTUALLY AGREED as follows; 1. Perm1ttftd Use. Subject to the terms of this LICENSE, the CITY is permitted to construct, Improve. maintain and operate the LICENSED AREAS for park and recreation purposes. 2. Licensed ,Areas. The LICENSED AREAS are identified In Exhibit A (Location Map) and more particularly described and delineated in Exhibits 3-1 through 13-6, which are attached hereto and made a part hereof. 3. 601#lonal Licensed Areas. Additional LICENSED AREAS, as mutually agreed upon by CITY and ZONE 7, may be added by written arnendrnent tq this LICENSE. 4. Li ense Fee. This LICENSE shall not require payment of any rent or other charges to ZONE 7 by CITY for the use of the LICENSED AREAS for the purposes for which it is permitted. 5. TeM af_Lioensa. a. The 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 oovenants herein', elthar 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 use of the LICENSED AREAS. b. CITY's obligations under Section 1 i ("Indemnity ") and Section 13 ('Waiver of claims ") shall survive the termination of this LICENSE. Win(r)9; B. Limitations a. This LICENSE is granted solely for the purpose of authorizing CI"T"Y to provide park and recreational uses at the LICENSED AREAS for general public use without discrimination as to place of National origin, Ancestry, Ethnicity, race, color, gender, age, marltal status, pregnancy, sexual orientation (real or perceived), medical condition, physical or mental disability, or religion.. b. It is understood and agreed 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 furtherance of said purpose must take precedence over any and all athor uses of the 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 control and water management purposes. d. CITY shall obtain and comply with all required permits, agreernents and/or regulatory approvals relating to the improvement, maintenance or operation of the LICENSED AREAS for park and recreational purposes including all federal, state, or local government requirements. This requirement includes tompilance with CEQA aas well as any necessary construction, building or use permits, including any progress lrtspecticns that may be required by any regulatory body. e. prior to installation of any permanent facilities or landscape Improvements, CITY shall submit plans and specifications and any related 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 steal! not be unreasonably withheld and said approval shall be given unless ZONE 7, in its sole discretion, determines that such structures, facilities or Improvements would Interfere with the primary use of said areas for flood oontml and water management purposes. Zone 7 hereby acknowledges that all permanent facilities and landscape Improvements on 'the Licensed Areas as of February 18, 2405 have been approved by Zone 7 and do not require further approvals under this subsection 6.e. f. Should ZONE 7, in its sole discnBtiorn, reasonably determine that any of CITY's activities or Improvements interfere with any ZONE 7 activities or operations, ZONE 7 may require CITY to eliminate 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 such thirty day period, ZONE 7 may take such action as ZONE 7 deems reasonably necessary to remedy such interference, all at CITY's sole expense. g. CITY agrees to abide by any future LICENSED ARE=AS Rules and. Regulations which may be adopted by ZONE= 7's Board of Directors. '5 ►.i rw ► -nr, c 2 h. CITY agrees to accept th1s3 LICENSE to the LICENSED AREAS on an "as -is" basis, and ZONE 7 has no obligation for maintenance or repair of LICENSED AREAS during the term of this LICENSE. i, CITY shall be solely responsible for any darnege or lass to CITY's improvements resulting from theft or vandalism or resulting from any other cause. ZONE 7 shall not provide security for CITY's Improvement;' nor LICENSED AREA in general. ZONE 7 shall not be responsible for any lass or damage suffered by CITY (including direct or indirect loss or damage, or Incidental or consequential loss or damage) resulting from any damaga to CITY"s improvements or loss of use thereof suffered in connection with this LICENSE_ j, Suspension or Limitation crf Use: ZONE 7 shall have the right, without liability to CITY, to suspend any licensed uses temporarily or to lirnit this LICENSE and the use of the LICENSER AREAS by the CITY during such periods of time as ZONE 7 determines that such suspension or limitation is necessary In the Interest of public safety, national security, or the operation or maintenance orits flood or water facilities. Zone 7 will provide notice bf its determination to suspend or limit use to CITY pursuant to section 14 of this License Agreement. 7. Park Maintenance and Operation a,. CITY shall cause any park and recreational improvements to be constructed, maintained and operated in an orderly, safe, and sanitary manner 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 iICENSED AREA shall be the responsibility of1he CITY. C. The LICENSED AREA may be subject to slid @s, erosion, subsidence, flooding and other damages. In the event that CITY's use of the LICENSED AREA is impacted by such damages, ZONE 7 will make its mast efforts to repair ZONE 7's facllities to Zone 7 standards: however, such repairs will be subject to available funding and other maintananca priorities as determined by ZONE 7 in its sole discretion: Repair of darnage to recreational facilities 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 andfor emergency repair activities ZONE 7 will exercise roasonable care to avoid removal or damage to axisting CITY Installed structures and improvarnents and CITY, at its sole cost, shall be responsible for any reinstallation, repair or reconstruction work. e. CITY agrees to give Zone 7 reasonable notice of Its major maintenance activities that may conflict Mth ZONE 7's maintenance of Its flood control channel. Major maintenance activities include but are not limited to work on any permanent structure, facility and /or vegetation work that may conflict with ZONE 7's maintenance of Its flood control channel propertles. '3rinr�nn� f. CITY shall adopt such rules and regulations as It deems necessary to facilitate the orderly and safe Operation and control of the use of the LICENSED AREAS by the public for recreational purposes. If any such rule or regulation i5 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 regulation in conformance with ZONE 7's request. 8. Violations of Permitted Use. Should the CITY, its employees, contractors, subcontractors, agants, or the general public construct, install, operate or maintain any park improvements in violation of the terms of this LICENSE, yr in violation of any of the approvals granted hereunder, ZONE 7 may direct C! iY, at CITY's sole cost, to remove the improvements from the LICENSED AREAS or to take other remedial action, as ZONE 7 may, in its sale discretion, determine to be appropriate CITY shall be afforded a period of fifteen (15) days, within which to ours any such violations and comply with ZONE 7's directive. In the event CITY fails to cure within the above stated period, ZONE 7 shall have the right to take any and all actions to remedlate the LICENSED ARI=AS and CITY shall reimburse ZONE 7 for all costs assoclatad therewith. Zone 7, as It reasonably determines, may extend the period as may be necessary to cure the default, provided that the Chy has commenced the cure within the flft6en (15) day period. 9. Assignment. CITY may assign all of its rights, duties and liabilities 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 all of the rights, duties and liabilities imposed upon CITY under this LICENSE. 10_ Acknowledgment of Title. It is understood and agreed that CITY, by the acceptance of this LICENSE and by the use orocoupancy of said LICENSED AREAS, has not acquired and shall not acquire hereafter any property rights or interest in or to said LICENSED AREAS through this LICENSE, and that CITY may Use the LICENSED AREAS only as herein providod. ZONE 7 shall retain the right to sell or change areas, but In the event that CITY is damaged by such action, CITY shall be compensated for any damage to faci[Itias which It hoe installed. ZONE 7 may elect to compensate CITY for depreciated value of such facilliies In lieu of compensation of damages, 11. Indemnity, CITY shall indemnify, defend, reimburse and hold harmless Zcane7, its officers, agents, contractors and, employees (wIlactiveiy, "Indemnitees ") from and against any and all demands, claims, legal or administrative proceedings, 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 any person or damage to or destruction of arty property occurring in, on or about the SITE, or any part thereof, whether the person or property of CITY, its officers, agents, employees, oontrWom and subcontractors (collectively, "Agents "), its invitees, guests or business visitors or third persons (oollectively, "Invitees"), 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 cgnditions of this LICENSE or (c) the use of the SITE or any activities conducted thereon by CITY, Its Agents or Invitees. This provision applies except to the extent of Liabilities resulting directly from the sole negligence or willful miapanduct o'fZONE 7 orZONE 7's authorized representatives. The foregoing indemnity shalt include, without limitation, reasonable attorneys' and consultants' fees, investigation and rernediation costs and all other reasonable costs and expenses incurred by the Indemniteas, including, without limitation, damages for decrease in the value of the SITE IWI Mr )nng 4 and claims for damages or decreases in the value of adjoining property. CITY shall have an immediate and independent ohligatlon to defend zONE 7 from any claim which actually or potentially falls within thls Indemnliy provislon even if such allegation is or may bo groundless, fraudulent or false, which obligation arises at the time such claim Is- tendered to CITY by ZONE 7 and continues at all tiaras thereafter. CITY's obllgatlons under thlr, Condition shall survive the expiration or termination of the LICENSE and modifications thereto. 12. Insurance RequireMenjj CITY shall carry public liability and property damaga insurance or monetary coverage in an amount which will adequately protect ZONE 7 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 injurer or 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 less 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 Control and Water Conservation District, Alameda County Flood Control and Water Conservation District, the County of Alameda, their officers, agents and employees as additionally insured and copies thereof, cartificates of payment of premiums thereon, 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 monetary coverage as Is afforded by the policy to ZQNE 7 of Alameda County Florid Control and Water Conservation District, et al., shall apply as primary Insurance or monetary coverage. No other insurance or monetary coverage effected by ZONE 7 of Alameda County Flood Control and Water Conservation District, et al., shall be called upon to contrlbute to a loss covered by the policy. CITY has the right and option to self-insure the requirements under this Section 12 upon written notice to ZONE 7 that CITY assumes the obligations in the plans and stead of any insurance carrier, any reference to failure to coverage notwithstanding, In the event that CiTY elects to self-insure, CITY shall provide to ZONE 7 a certificate or other evidence of self - insurance acceptable to ZONE 7. 13_ Waiver of Gla1m3 CITY fully releases, waives, and discharges forever any and all claims, demands, rights and cause cf action against, and covenants not to sue, Indemnities, under any present or future laws, statutes, or regulations: (a) for any claim or event relating to the Condition of the SiTE or Q-TY's use thereof; or (b) in the event that ZONE 7 exercises its right to suspend, revoke or terminate the LICENSE. 14, i ZONE 7 agrees to give CITY reasonable notice of flood control and water rrianagament operations and maintenance which would affect recreational facilities or park operations of CITY and keep CITY informed of any conditions which might result in such operations and maintenance. ZONE 7 further agrees to furnish any plans for improvernOnts to the LICENSED AREAS to the CITY for revlew and comments. ZONE 7 will maintain the LICENSED AREAS to the extent necessary for flood control and water management purposes. Repairs to flood and water facilities /structures shaiI to the responsibility of ZONE 7 except when such repairs arise from damage caused to these facilitiesfstructures by CITY, its afficers, Ire n /I.Mr; 5 agents, employees, oontractors and subcontractors, its invitaas, guests or business visitors or third persona. Such ZONE 7 responsibilities shall not relieve the CITY from Its Liabilities as described In Section 11. 15. Prooedy Taxes. Pursuant to Callfornia Revenue and Taxation Code section 107.6, notice Is hereby given that CITY is responsible for any possessory interest taxes that may be Irnposed as a result of, or related to, this LICENSE. 16. Not , Any demand or notice which either party shall be required, or may desire to make upon or give to the other shall be in writing and shall be delivered personally upon the other or be sent by prepaid certified mail to the respective parties as follows: ZONE 7: General Manager 7-one T, 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 94565 Either party may, from time to time, designate any other address for this purpose by written noti ce to the other party, given with 10 business days' notice. 17. Misgill1aneous a. This LICENSE constitutes the entire LICENSE and understanding between the parties, and supersedes all offers, negotiations and other agreements concerriing the subject matter contalned herein. Any amendments to this LICENSE must be In writing and executed by both parties. b. If any provision of this LICENSE is invalid or unenforceable with respect to any party, the romairider of this LICE €VSE or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this LICENSE shall be valid arid enforosable to the fullest extents permitted by law. c. This LICENSE shall be governed by the laws cf the ;Mato of Caiffarnia. �► r.� n me � IN WITNESS WHEREOF, the parties hereto have executed this LICENSE on the dates appearing below their respective authorized signatures. ZONE 7: Zone 7 of Alameda County Flood Control and Water Conservation District By: President Zane 7 Board of Directors Date: Appmad as to Form Amy Naernani Deputy County Counsel BVL 111A )MR 7 CITY: City of Dublln . wo s ayor mall LooRhart Cate: t vj0 ATTEST: ,Aa. I OIL UA�,O,, K—ay Keck, City Clerk APPROVED AS TO FORM: EIIzabeth Sliver, City Attorney 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"),s the owner of certain real property within the limits of Alameda County which is used primarily as a conveyance channel for flood oontrol, drainage, and water conservation purposes (hereinafter "District "), and WHEREAS, on March 18, 1887, Zone 7 and City entered into a License Agreement (Hereinafter "1987 Agreement'). The 1957 Agreement was amended on August 8, 1995, by a modification to the 1987 Agreement (hereinafter "1995 Modification ,Agreement "). 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 tv plan, improve, maintain and operate facilities and parks for public recreation; and the Distract 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 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 7J8, described in Exhibit "A" attached, which may include, subject to istrict "s approval and inspection as provided in Section IX, are 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 certain real properties for a regional Frail 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 in Exhibit A. PASSED, APPROVED AND ADOPTED this 8th day of August, 1995. AYES: Councilmernbers Barnes, Burton, Howard, Moffatt and Mayor Houston NOES: bone ABSENT: None ayor q IN= , ff-'06n! a :jganVvSebrp&1 -I )e*8- 9W&saebrp.duc (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 Sublicensor, CITY OF DUBLIN, a Municipal Corporation, (hereinafter "City ") and Suhlicensee, EAST BAY REGIONAL PARK DISTRICT, a California special district, (hereinafter "District "). 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 f=lood 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 "1 995 Modification Agreement"). 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 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 WHEREAS, as used in this Sublicense Agreement, "Trail" shall refer to a 20 -foot -wide corridor located 6n the most easterly bench of the Property, Alamo Canal (Line 7F), South San Ramon Creek (Line 7J), and Line 7,18, 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 ". 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 tine J -5, 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: 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. 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 (SO) 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. 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. 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 park hereof. 2 SECTION V. MASTER 1-19FN5E 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 7J), and. Line 7J5 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 1895 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 9987 Agreement and 9995 Modification Agreement shall prevail. SECTICh_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, 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 riot, 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 'frail for emergency or maintenance vehicle access or other purpose. 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 Ole general public without discrimination as to place of origin, race, age, sex, or religion. 25EQIIQNVIIL TERMINATION AND ABAUDD-NMENI 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 3 nvnperfonnance 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 Tail, 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 revolted or terminated by ,Zone 7. District shall 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 worst 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 4 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 suoh 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. 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. 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. EMMA in] ► VAII The Alamo Canal ([nine 7F), South San Ramon dreek (Line 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. 61 Prior to the initial construction of Trail or any reconstruction thereof performed by City on the Alamo Canal (Line 717), 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 Districts sole cost, at the site of the Trail during the construction of Trail. 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 Itter 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 measuros. 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 1 995 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 0 operating the subject Trail as necessary for regional Trail connection purposes including, but not limited to, facilities and bikeway signs installed by District. 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 of'the 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. 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 Lublin, its beards, 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 et. al., 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 self- insure, District shall provide to City a certificate or other evidence of self-insurance acceptable to City. Notwithstanding 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. VA 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. 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. 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 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. 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. District agrees to maintain, at its expense, all fencing and barricades on the Property installed by City or District or at District's direction. Districtlshall not be responsible. for the maintenance of residential fencing installed by parties other than district. District shall, at its own expense, promptly repair all damage to Trail improvements, to the Property, and to existing anti future utilities, caused or contributed to by users of the Trail. 16 1 ��_�ti"� •rye � � f + � `� � � ~. *yY• .�� fit. �"-'�`�1:- ,�' '� ��..•: ,`,�` -� �_ � 'j�,�� �..* � �� f, ter... �; _- � Eli s •f � • t L�•„� .r ti , 1 �� � District shall, at its own expense, promptly clear`, repaint, or remove any graffiti placed by users of the Trail on Trail improvements. Zone 7 shall have the sale 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. 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. 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. 10 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 94558 To DISTRICT: East Bay Regional Park District 2950 Peralta Oaks Court P,O. Box 6881 +b 1I Oakland, CA 94605 IN WITNESS WHEREOF, City and District have caused their corporate names to he affixed hereto by their respective officers authorized to do so the day and year first above written. APPROVED AS TO FORM: District Counsel APPROVED AS TO FORM: City Attorney 6rxrmsuedWhW EAST BAY REGIONAL, PARK DISTRICT W General Manager CITY OF DUBLIN BY Guy Robston, Mayor of Dublin ATTEST: c 4 �� • 12 I A� A" El �,A L" L Al "I y f E f Ito, 7 Q —wI "I, L Sl� �A 71 OIL sr sit MOM p PO.Vbk . ... .... I. -v� -7- 1 wSo Dianna, 4 mp�M� Ad '9- 4-1 1Ay � 5 el k6;? �Jl L . . ......... a ISLATTOWSWITWGUNS I1 1 0 Vic ":;41 :77" k 52 i=�- A IM rY V", Ij As PST— VI A I"aA, I Ij L �-j salons; I�L m. j, qp . f,-", .,� X. xw� u,7 i e, 7 Fi 7,K 4: „rte 7 77, , ��. I I : k'�, qz . 1' 11, L r `14 ki7F °+ +�f 4. "�sv" `� � 4,� r �..u.,�- �,rr�� r �i, •'w� it l'. 1114 ,': i , Dublin Lots N 1177-1 Sublicensed Areas �Toass 1, Existing, Bicycle Trails !j� i,I .Maintaine• by EB ■ Z RP y-gy. Maintained boo COE) Ila S1, ................ I . . . . . . . . . . . . . . .......... 2 Imam 1 to fgk.: 21 II J,q �'i5:1 f ',, I rP' I `, "il �'f s p,S II,Fr I� ': 1517% Dublin Lots Sublicensed Areas V�x S Class 1, Existing, Bicycle Trails , . . .......... Maintained • EBRPD w i�, a. J 77.1, "Z ;I ...... .... Maintained by COD )4` ns � "I0 Tay, 4hL v -V 1 , j lx� R I J�- Pr wil -3 21 In: J.. 30 0% 61 -17 ''`4 Yi a' � RZ P T . j .. .. . .... . Ii9i ffn 4"� ,I! L � R 7� F:I n W� d Lf�h ViUAi F' V,l L�,W' NRIA l 77777`T7_..,.. . ..... .... w. 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