HomeMy WebLinkAboutReso 16-05 Recre Use License
RESOLUTION NO. 16 - 05
A RESOLUTION OF THE CITY COUNCIL
OF TIlE CITY OF DUBLIN
. . * . * . * * *
APPROVING RECREA TONAL USE LICENSE AGREEMENT BETWEEN THE CITY OF
DUBLIN (OTY) AND ZONE 7 OF THE ALAMEDA COUNTY FLOOD CONTROL AND
WATER CONSERVATION DISTRICT (ZONE 7) REGARDING THE REPLACEMENT OF THE
EXISTING 1987 LICENSE AGREEMENT AND MODIFICATION NOS. 1,2,3,4 AND 5,
AND THE ADDITION OF A CHANNEL PROPERTY TO THE LICENSE
WHEREAS, Zone 7 and the City previously entered into a License Agreement on March 18,
1987, as authorized by City Council Resolution No. 15-87; and
WHEREAS, said License Agreement has been subsequently modified by Modification Nos. 1, 2,
3, 4, and 5 dated August 8, 1995, September 19, 2000, December 17, 2002, October 7, 2003, and
November 18, 2003, as authorized by City Council Resolution Nos. 93-95, 170-00, 232-02, 200-03, and
228-03 respectively; and
WHEREAS, the City proposes to further amend the License Agreement to add to the channel
segments governed by the agreement one segment of the Tassajara Creek Regional Trail fi-om a point
1,300 feet north of Gleason Drive to Somerset Drive, said segment 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, would 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
WHEREAS, 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 will not interfere with basic flood control
purposes of the channel; and
WHEREAS, Zone 7 is agreeable to such use on condition that the City holds Zone 7 fi-ee fi-om all
liability and claims for damage in accordance with said Recreational Use License Agreement as adopted;
and
WHEREAS, it is mutually agreed between Zone 7 and the City to add said Tassajara Creek
segment to the Recreational Use License Agreement for the privilege of using said parcels for park and
recreational facilities use under the terms of said License Agreement.
NOW, THEREFORE, BE IT RESOLVED 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 ofDubJin, attached hereto as Exhibit "A".
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BE IT FURTHER RESOLVED that the City Clerk of the City of Dublin is hereby directed to
transmit a certified copy of this Resolution, along with duplicate executed copies of the Recreational Use
License Agreement to Zone 7 for the District's Board approval and processing.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 15th day of February, 2005.
AYES: Councilmembers Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart.
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
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Deputy CIty Clerk
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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 authorized by the acts governing them to plan, improve, maintain and
operate facilities and parks for public recreation;
B. ZONE 7 has acoepted and/or will be accepting certain rights of way (hereinafter
"LICENSED AREAS"), which can be used for park and recreation uses in accordance
with this LICENSE AGREEMENT and amendments thereto;
C. CITY has indicated its desire that these rights of way be developed so that a park-like
atmosphere can be created within and about the LICENSED AREAS;
D. The purpose of this LICENSE AGREEMENT is to amend and supersede the original
License Agreement entered Into by the CITY and ZONE 7 on March 18, 1987, and all
modifications thereto; and
E. ZONE 7 is agreeable to such use by CITY on the LICENSED AREAS and hereby grants
a non·exclusive LICENSE for said use upon the following terms and conditions.
NOW, THEREFORE, BE IT MUTUALLY AGREED as follows:
1. Permitted Use. Subject to the terms of this LICENSE, the CITY is permitted to construct,
improve, maintain and operate the LICENSED AREAS for park and recreation purposes.
2. Lioensed Areas. The LICENSED AREAS are identified in Exhibit A (Location Map) and more
particularly described and delineated in Exhibits B-1 through B-6, which are attached hereto and
made a part hereof.
3. Additional Licensed Areas. Additional LICENSED AREAS, as mutually agreed upon by CITY
and ZONE 7, may be added by written amendment to this LICENSE.
4. License 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 pennitted.
5. Term of License.
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 covenants herein; either this original LICENSE or any
renewal thereof to be subject to termination under the covenants provided herein to
govern such termination. Renewals shall be subject to updating the conditions on use
of the LICENSED AREAS.
b. CITY's obligations under Section 11 ("Indemnity") and Section 13 ('Waiver of Claims")
shall survive the termination of this LICENSE.
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6. Limitations
a. This LICENSE is granted solely for the purpose of authorizing CITY to provide 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, marital 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 other 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, agreements 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 compliance with CEQA as well as
any necessary construction, building or use permits, including any progress inspections
that may be required by any regulatory body.
e. Prior to installation of any permanent facilities or 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 Ts General Manager. Written approval shall 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 control and water management purposes.
Zone 7 hereby acknowledges that all permanent facilities and landscape improvements
on the Licensed Areas as of February 16, 2005 have been approved by Zone 7 and do
not require further approvals under this subsection 6.e.
f. Should ZONE 7, in its sole discretion, 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 Ts 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 fails 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 AREAS Rules and Regulations which
may be adopted by ZONE Ts Board of Directors.
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h. CITY agrees to accept this 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 damage or loss to CITY's improvements
resulting from theft or vandalism or resulting from any other cause. ZONE 7 shall not
provide security for CITY's improvements nor LICENSED AREA in general. ZONE 7
shall not be responsible for any loss or damage suffered by CITY (including direct or
indirect loss or damage, or incidental or consequential loss or damage) resulting from
any damage to CITY's improvements or loss of use thereof suffered in connection with
this LICENSE.
j. Suspension or Limitation of Use: ZONE 7 shall have the right, without liability to CITY,
to suspend any licensed uses temporarily or to limit this LICENSE and the use of the
LICENSED AREAS by the CITY during such periods of time as ZONE 7 determines
that such suspension or limitation is necessary in the interest of public safety, national
security, or the operation or maintenance of its flood or water facilities. Zone 7 will
provide notice of 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 LICENSED AREA shall be the
responsibility of the CITY.
c. The LICENSED AREA may be subject to slides, 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 best efforts to repair ZONE Ts facilities to Zone
7 standards; however, such repairs will be subject to available funding and other
maintenance priorities as determined by ZONE 7 in its sole discretion. Repair of
damage to recreational facilities shall be the responsibility of CITY and at CITY's sole
cost. CITY shall peñorm such repair, as CITY may deem necessary for proper and safe
operation of the LICENSED AREA.
d. In the peñormance of routine and/or emergency repair activities ZONE 7 will exercise
reasonable care to avoid removal or damage to existing CITY installed structures and
improvements and CITY. at its sole cost, shall be responsible for any reinstallation,
repair or reconstruction work.
e. CITY agrees to give Zone 7 reasonable notice of its major maintenance activities
that may conflict with ZONE Ts 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 Ts maintenance of its flood
control channel properties.
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f. CITY shall adopt such rules and regulations as it deems necessary to facilitate the
orderly and safe operation and control of the use of the LICENSED AREAS by the
public for recreational purposes. If any such rule or regulation is contrary to the primary
interest of flood control and water management, or is deemed by ZONE 7 to be adverse
to its interest, ZONE 7 may give 60 days notice of such fact to CITY and CITY shall
change such rule or regulation in conformance with ZONE Ts request.
8. Violations of Permitted Use. Should the CITY, its employees, contractors, subcontractors,
agents, or the general public construct, install, operate or maintain any park improvements in
violation of the terms of this LICENSE, or in violation of any of the approvals granted hereunder,
ZONE 7 may direct CITY, 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 sole discretion, determine to be
appropriate CITY shall be afforded a period of fifteen (15) days, within which to cure any such
violations and comply with ZONE Ts 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 remediate the
LICENSED AREAS and CITY shall reimburse ZONE 7 for all costs associated therewith. Zone
7, as it reasonably determines, may extend the period as may be necessary to cure the default,
provided that the City has commenced the cure within the fifteen (15) day period.
9. Assiqnment. CITY may assign all of its rights, duties and 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. Acknowledqment of Title. It is understood and agreed that CITY, by the acceptance of this
LICENSE and by the use or occupancy of said LICENSED AREAS, has not acquired and shall
not acquire hereafter 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 provided. 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 facilities which it has installed. ZONE 7
may elect to compensate CITY for depreciated value of such facilities in lieu of compensation of
damages.
11. Indemnity
CITY shall indemnify, defend, reimburse and hold harmless Zone7, its officers, agents,
contractors and, employees (collectively, "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 any property
occurring in, on or about the SITE, or any part thereof, whether the person or property of CITY,
its officers, agents, employees, contractors and subcontractors (collectively, "Agents"), its
invitees, guests or business visitors or third persons (collectively, "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 conditions 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 misconduct of ZONE 7 or ZONE Ts authorized representatives.
The foregoing indemnity shall include, without limitation, reasonable attorneys' and consultants'
fees, investigation and remediation costs and all other reasonable costs and expenses incurred
by the Indemnitees, including, without limitation, damages for decrease in the value of the SITE
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and claims for damages or decreases in the value of adjoining property. CITY shall have an
immediate and independent obligation to defend ZONE 7 from any claim which actually or
potentially falls within this indemnity provision even if such allegation is or may be groundless,
fraudulent or false, which obligation arises at the time such claim is tendered to CITY by ZONE
7 and continues at all times thereafter. CITY's obligations under this Condition shall survive the
expiration or termination of the LICENSE and modifications thereto.
12. Insurance Requirements
CITY shall carry public liability and property damage 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 injury
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,
certificates 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 ZONE 7 of Alameda County Flood Control
and Water Conservation District, et aI., 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 aI., shall be called upon to contribute 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 place 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 Claims
CITY fully releases, waives, and discharges forever any and all claims, demands, rights and
cause of action against, and covenants not to sue, Indemnities, under any present or future
laws, statutes, or regulations: (a) for any claim or event relating to the condition of the SITE
or CITY's use thereof; or (b) in the event that ZONE 7 exercises its right to suspend, revoke
or terminate the LICENSE.
14. Duties of ZONE 7. ZONE 7 agrees to give CITY reasonable notice of flood control and water
management operations and maintenance which would affect recreational facilities or park
operations of CITY and keep CITY informed of any conditions which might result in such
operations and maintenance. ZONE 7 further agrees to furnish any plans for improvements
to the. LICENSED AREAS to the CITY for review and comments. ZONE 7 will maintain the
LICENSED AREAS to the extent necessary for flood control and water management purposes.
Repairs to flood and water facilities/structures shall be the responsibility of ZONE 7 except when
such repairs arise from damage caused to these facilities/structures by CITY, Its officers,
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agents, employees, contractors and subcontractors, its invitees, guests or business visitors or
third persons. Such ZONE 7 responsibilities shall not relieve the CITY from its Liabilities as
described in Section 11.
15. Property Taxes. Pursuant to California Revenue and Taxation Code section 107.6, notice is
hereby given that CITY is responsible for any possessory interest taxes that may be imposed as
a result of, or related to, this LICENSE.
16. Notice. 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
Zone 7, Alameda County Flood Control
And Water Conservation District
100 North Canyons Parkway
Livermore, CA 94551
CITY:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Either party may, from time to time. designate any other address for this purpose by written
notice to the other party, given with 10 business days' notice.
17. Miscellaneous
a. This LICENSE constitutes the entire LICENSE and understanding between the parties,
and supersedes all offers, negotiations and other agreements concerning the subject
matter contained 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 remainder of this LICENSE 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 and enforceable to the fullest extents permitted
bylaw.
c. This LICENSE shall be governed by the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this LICENSE on the dates
appearing below their respective authorized signatures.
ZONE 7:
Zone 7 of Alameda County Flood Control
and Water Conservation District
CITY:
City of Dublin
By:
President
Zone 7 Board of Directors
Date:
Date:
d--\ lS- CS'"
Approved as to Form
Amy Naameni
Deputy County Counsel
By:
ATTEST:
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(áy Keck, City Clerk . '
APPROVED AS TO FORM:
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Elizabeth Sliver, City Attorney
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