CITY COUNCIL AGENDA ITEM NO.

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CITY COUNCIL AGENDA ITEM NO. &

Meeting Date: October 14, 2014

Subject/Title: A Resolution Approving Amendment No. 1 to the Master License Agreement Between the City of Brentwood and the East Bay Regional Park District for the Marsh Creek Regional Trail to Authorize the City Manager and District General Manager to Administratively Approve Non-material Revisions Including, But Not Limited to, those Related to Bridge Locations

Prepared by: Aaron Wanden, Park/Maintenance Manager Tammy Homan, Management Analyst

Submitted by: Bruce Mulder, Director of Parks and Recreation

RECOMMENDATION

Adopt a Resolution Approving Amendment No. 1 to the Master License Agreement Between the City of Brentwood and the East Bay Regional Park District for the Marsh Creek Regional Trail to Authorize the City Manager and District General Manager to Administratively Approve Non- material Revisions Including, But Not Limited to, those Related to Bridge Locations

PREVIOUS ACTION

A formal License Agreement with East Bay Regional Park District and the City of Brentwood was executed February 6, 2001 after a number of verbal agreements since the mid-1980s.

On September 14, 2004, City Council approved an Amendment to the License Agreement with East Bay Regional Park District to Operate the Marsh Creek Trail.

On October 11, 2011, City Council approved Resolution 2011-136, approving a Master License Agreement for the Marsh Creek Regional Trail between the City of Brentwood and East Bay Regional Park District and authorizing the City Manager or designee to execute the Master License Agreement and make minor technical revisions to it in consultation with the City Attorney.

BACKGROUND

The Marsh Creek Regional Trail, in eastern Contra Costa County, winds along Marsh Creek through farmland and urban areas of Brentwood and Oakley. The Brentwood portion of the Marsh Creek trail is a paved, multi-use trail approximately 5.67 miles long and extends from Delta Road to Concord Avenue. This length of trail includes a future segment that will extend from Concord Avenue to Vineyards Parkway with the development of the area described in Exhibit G of the Agreement. Trail users are able to benefit from and enjoy several parks and greenbelts along the length of the trail.

With the February 2001 agreement, East Bay Regional Park District began maintenance of all aspects of the Creek trail within Brentwood city limits. The amendment, approved in September 14, 2004, addressed maintenance of the undercrossing tunnels at Sand Creek Road and O’Hara Avenue. With the road improvements in this area, a portion of the trail was moved to

Agenda Item C.3 - Page 1 of 27

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City property, rather than Contra Costa County Flood Control property as it had been on the original trail. The 2004 amendment corrected this information as how the trail and right-of-ways were described in the 2001 Agreement.

In 2011, Parks and Recreation staff and East Bay Regional Park District staff met to clarify responsibilities for the various segments of trail, including maintenance and litter, patrol, signs, permits, bridges, tunnels, underpasses, etc. and determined that the execution of a completely new Master License Agreement that supersedes any prior agreements and amendments was in the best interest of both parties.

The Marsh Creek Trail has been identified in the City’s Parks, Trails and Recreation Master Plan as the north to south trail under EBRPD maintenance that will ultimately connect to Los Vaqueros and Round Valley regional parks.

The East Bay Regional Park District Board approved the new Master Agreement at their Board meeting on October 18, 2011.

Since the execution of the Agreement in October 2011, an additional bridge was constructed over Marsh Creek as part of the Carmel Estates project. It became apparent that this bridge would need to be included with the others in the Master License Agreement. In order to simplify the addition of this bridge and other future bridges, City staff and EBRPD staff recommend amending Section 16 “Modification” of the Agreement to allow the City Manager and EBRPD District General Manager, in consultation with their legal counsels, to agree to non-material amendments to this License including revisions and/or additions to Exhibit B (Bridge Locations).

FISCAL IMPACT

The City of Brentwood is not responsible for the maintenance of the trail, as this is the responsibility of East Bay Regional Park District as described in the Master License Agreement.

There is no fiscal impact with the approval of Amendment No. 1 this Agreement.

ATTACHMENTS Resolution

Amendment No. 1

License Agreement – Marsh Creek Regional Trail

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RESOLUTION NO.

A RESOLUTION APPROVING AMENDMENT NO. 1 TO THE MASTER LICENSE AGREEMENT BETWEEN THE CITY OF BRENTWOOD AND THE EAST BAY REGIONAL PARK DISTRICT FOR THE MARSH CREEK REGIONAL TRAIL TO AUTHORIZE THE CITY MANAGER AND DISTRICT GENERAL MANAGER TO ADMINISTRATIVELY APPROVE NON-MATERIAL REVISIONS INCLUDING, BUT NOT LIMITED TO, THOSE RELATED TO BRIDGE LOCATIONS

WHEREAS, an original License Agreement with East Bay Regional Park District and the City of Brentwood was executed February 6, 2001; and

WHEREAS, on September 14, 2004, City Council approved an Amendment to the License Agreement with East Bay Regional Park District to Operate the Marsh Creek Trail; and

WHEREAS, City and East Bay Regional Park District determined that the execution of a new Master License Agreement clarifying responsibilities of both parties and superseding prior agreements and amendments for the Marsh Creek Trail would be in the best interest of both parties; and

WHEREAS, on October 11, 2011, City Council approved Resolution 2011-136, approving a Master License Agreement for the Marsh Creek Regional Trail between the City of Brentwood and East Bay Regional Park District and authorizing the City Manager or designee to execute the Master License Agreement and make minor technical revisions to it in consultation with the City Attorney; and

WHEREAS, a new bridge over Marsh Creek has been constructed as part of the Carmel Estates project; and

WHEREAS, the new bridge over Marsh Creek needs to be identified and inventoried along with the others in the existing Master License Agreement;

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve a Resolution approving Amendment No. 1 to the Master License Agreement Between the City of Brentwood and the East Bay Regional Park District for the Marsh Creek Regional Trail to authorize the City Manager and District General Manager to administratively approve non-material revisions including, but not limited to, those related to bridge locations.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 14th day of October 2014 by the following vote:

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City Attorney Approved Version 041811

AMENDMENT NO. 1 BETWEEN

EAST BAY REGIONAL PARK DISTRICT AND THE CITY OF BRENTWOOD REGARDING THE MARSH CREEK REGIONAL TRAIL MASTER LICENSE AGREEMENT

This Amendment No. 1 is entered into and effective as of the ___ day of ___________, 2014, amending the Master License Agreement dated October 18, 2011 (the “License”) by and between the City of Brentwood, a municipal corporation of the State of California ("City"), and East Bay Regional Park District, a California special district (“District") (Each a “Party” and collectively, the “Parties”) for the Marsh Creek Trail.

RECITALS

A. The License has been in place since 2011 and the Parties believe that it has been effective and of benefit to the general public.

B. The Parties recognize and acknowledge that additional bridges will be constructed over Marsh Creek in the future; and

C. The Parties now desire to alter Section 16 (Modification) of the License to account for those future bridges that will be constructed over Marsh Creek.

NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows:

1. Section 16 (Modification) of the License is hereby deleted and replaced with a new Section 16 (Modification) as follows:

“16. Modification. This License shall be subject to modification or amendment, including the expansion of the Trail to additional areas, only by the written, mutual consent of the parties. The City Manager and District General Manager are authorized, in consultation with their respective legal counsels, to agree to non-material amendments to this License including, but not limited to, revisions and/or additions to Exhibit B (Bridge Locations). Pursuant to the terms of this License, for current and future bridges, the City will remain responsible to inspect and perform major repairs;

and the District will remain responsible for litter and graffiti removal.”

2. Except as amended herein, all provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect.

3. All requisite insurance policies to be maintained by Parties pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment.

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City Attorney Approved Version 041811

4. The individuals executing this Amendment on behalf of the Parties each represent and warrant that they have the legal power, right and actual authority to bind their respective Party to the terms and conditions of this Amendment.

EAST BAY REGIONAL PARK DISTRICT:

By:

Printed Name:

General Manager

By: ______

Printed Name:

District Counsel

CITY:

By:

Steven M. Salomon, Interim City Manager

ATTEST:

By:

Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By:

Damien Brower, City Attorney

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