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HomeMy WebLinkAboutMINUTES - 09242002 - C.2 C. 2 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on September 24 , 2002 , by the fallowing vote: AYES: Supervisors Uilkema, Gerber , DeSaulnier, Glover, and. Gioia ABSENT: None ABSTAIN: None SUBJECT: EBMUD/Walnut Creek/San Ramon Valley Improvement Project Common Use Agreement for South Broadway and. Tunnel Portions , Walnut Creek Area. RELISTED: Continue (1) week, October 1 . 1 hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the state shown. Attested: September 24, 2002 John sweeten, Clerk of the Board Of Supervisors and County Administrator By: a� c �` / ;eputy Clerk n r � TO: BOARD OF SUPERVISORS, as the Governing Body of the Contra Costa County Flood Control and Water Conservation District FROM: MAURICE M. SHIU, CHIEF ENGINEER DATE: September 24, 2002 SUBJECT: EBMUD/Walnut Creek/San Ramon Valley Improvement Project — Common Use Agreement for South Broadway and Tunnel Portions,Walnut Creek area. CP#02-46 Project No.: 0678-6X5146 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION 1. Recommended Ac0on: APPROVE and AUTHORIZE the Chief Engineer, Contra Costa County Flood Control and Water Conservation District (Flood Control), to execute a Common Use Agreement between Flood Control and the East Bay Municipal Utility District (EBMUD), effective upon the issuance of an Encroachment Kermit from Flood Control to EBMUD related to EBMUD's installation of a 69"water pipeline in the County's San Ramon Transportation Corridor, Walnut Creek area. 11. Financial impact: There will be no financial impact from this action. r , Continued on Attachment: X SIGNATURE: ECOMMENDATION OF COUNTY ADMINISTRATOR �_RECOMMENDATION OF BOARD COMMITTEE APPROVE —OTHER SIGNATURE'S): ACTION OF BOA N APPROVED AS RECOMMENDED OTHER VOTE OF SUP SORS UNANIMOUS(ASSENT ) AYES: NOES: ABSENT: ABSTAIN: I hereby certify that this is a true and correct DRA:eh copy of an action taken and entered on the c:tRealProp e-FttesNeos&REMtoo2EBMUD Sol3md Funnel Commonuse and minutes of the Board of Supervisors on the Orig. Div: Public Works(es) date shown. Contact Click Awenius (313-2227) cc: County Adrninistrator ATTESTED: CDD,K.Piona JOHN SWEETEN,Clerk of the Board of P.W.Accounting Supervisors and County Administrator P.W.Environmental Svcs.,T.Torres Beard Orders Senior Clerk,Adm. By , Deputy Flood Control, Dean Eckerson Steve Boed,EBMUD Subject: EBMUD/Walnut Creek/San Ramon Valley Improvement Project — Common Use Agreement for South Broadway and Tunnel Portions, Walnut Creep area. Date: September 24, 2002 Page: 2 Ill. Reasons for Recommendations and Background: EBMUD desires to install a 69" diameter water pipeline in an approximately 2.2 mile stretch of the County-owned San Ramon Transportation Corridor. The Pipeline will be installed in three phases identified as the Southern Reach section in the Alamo area, the South Broadway section and the Civic Park to Newell Avenue "Tunnel" section in the City of Walnut Creek. The Board authorized the execution of the easements for the Southern Reach section that runs from Danville Boulevard to Stone Valley Road on July 16, 2002. This action represents only the authorization for the execution of the Common Use Agreement. The Board's authorization to execute easement agreements for the South Broadway and Tunnel sections of EBMUD's project, and a Purchase and Sale Agreement between County and EBMUD, and a Right of Entry agreement between the Contra Costa County and EBMUD will be the subject of future Board Orders. General Plan Conformance for the entire project has been received from the City of Walnut Creek. On July 16, 2002, the Board of Supervisors determined that the EBMUD/Walnut Creek/San Ramon Valley Improvement Project was not subject to the California Environmental Quality Act (CEQA) pursuant to Article 5, Section 15061 (b) (3) of the CEQA Guidelines. IV. Consequences of Negative Action: The Common Use Agreement will not be executed, and Flood Control will not issue an Encroachment Permit for EBMUD's project. Common Use Agreement RECORDING REQUESTED BY East Bay Municipal Utility District AND WHEN RECORDED MAIL TO East Bay Municipal Utility District P.O. Bax 24055 Oakland, CA 94623 Attn: Real Estate Services Stephen J. Boeri SPACE ABOVE THIS LINE FOR RECORDER'S USE COMMON USE AG"EMEN T' Effective , the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, a subdivision of the State of California (hereafter "Flood Control"), and the EAST :BAY MUNICIPAL UTILITY DISTRICT, a public corporation organized and existing under the laws of the State of California (hereafter "EBMUD"), enter into this common use agreement ("Agreement") on the terms and conditions contained herein: RECITALS A. County is the owner of that certain strip of land of varying width that nuns from north Concord through the City of Walnut Creek to the City of San Ramon in Contra Costa County. This strip of land is commonly known as the San Ran-ion Transportation Corridor {4GSRTC"). B. EBMUD desires to acquire a permanent subsurface easement (the "'funnel Easement"), in the form attached hereto as Exhibit "A" and incorporated herein, below portions of the SRTC to bore a thirty foot by thirty foot (30' x 30') square tunnel for the purpose of installing, maintaining and operating a sixty-nine inch (69") wide water pipeline ("Water Pipeline"). C. EBMUD also desires to acquire a surface easement and a subsurface easement (the "South Broadway Easements"), in the form attached hereto as Exhibit "B" and incorporated herein, over, across and below portions of the SRTC to access and maintain the Water Pipeline. The Tunnel Easement and the South Broadway Easements are collectively referred to as the "Permanent Easements." D. EBMUD also desires to acquire a temporary construction easement ("TCE") also included in the form attached hereto as Exhibit "B,"over a portion of the SRTC for the storage of material and the operation and storage of equipment during the initial construction of the Water Pipeline. E. On December 22, 1986, a Final Order of Condemnation ("Final Order") in Superior Court Case No. 262946 was recorded at Book 13339, Page 328 in the Official Records KL:DRA:eh GAGapData1,Rea1Prop\EBMUD Pipeline\91802EBMUD ComnxrnUse SoBroadTullnei.doc Page 1 of 5 9/1912002 12:17 PM Common Use Agreement of Contra Costa County, pursuant to which a perpetual, non-exclusive easement was condemned to the Contra Costa County Flood Control and Water Conservation District ("Flood Control") across a portion of the SRTC. Flood Control has constructed a permanent concrete flood control channel (the "Channel") within the real property condemned to Flood Control. The Judgment in Condemnation ("Judgment") entered in Superior Court Case No. 262946 provides that in the event County grants any subsequent easements or licenses within the real property condemned to Flood Control, as described in Exhibit "A" to the Judgment, County shall require each subsequent grantee to enter into a common use agreement with Flood Control, which agreement shall contain, at a minimum, the terms and conditions set forth in Section 13. of the Judgment. Since portions of the Permanent Easements will overlay or overlap the area condemned to Flood Control, County requires that EBMUD enter into this Agreement. AGREEMENT 1. PURPOSE: Flood Control and EBMUD hereby acknowledge and agree that portions of the.Permanent Easements and the TCE described herein will overlap or overlay the real property described in Exhibit "A" to the Judgment described above, necessitating the execution of this Common Use Agreement between Flood Control and EBMUD. Flood Control specifically acknowledges and agrees that the execution of this Agreement by EBMUl) satisfies all of County's obligations under the Judgment with respect to the Permanent Easements and the TCE being conveyed to EBMUD. 2. EBMUD's PRIOR NOTICE TO FLOOD CONTROL: EBMUD acknowledges the presence of Flood Control's Channel and agrees not to, at any time, use, or permit others to use, the Permanent Easement areas in any manner that will interfere with, damage, or impair the Channel. EBMUD shall, prior to any construction, reconstruction, remodeling, excavation, installation, or plantings within the Property boundaries, submit specific plans and specifications ("Plans and Specifications") to Flood Control for Flood Control's review and written approval; provided, however, normal maintenance and repair by EBMUD of its facilities within the Permanent Easement areas that does not include excavation or any activity that may potentially result in disturbance of the Channel, but consisting of routine inspection and servicing of the Water Pipeline in a manner that will not create a public disturbance, shall not require prior notice to Flood Control. Such written approval, together with any additional requirements, shall be in the form of an Encroachment Permit issued by Flood Control. 3. CONSTRUCTION OF WATER PIPELINE: EBMUD hereby accepts all liability, and shall be solely responsible, at its sole cost and expense, to design, engineer, construct, reconstruct, modify, and maintain its Water Pipeline in a manner that will withstand the significant weight, vibration, or other conditions that are conducive to Flood Control's Channel. EBMUD hereby acknowledges and accepts Flood Control's right to maintain, operate, repair, reconstruct, and remodel the Channel, including any excavation, in a manner not intended to damage the Water Pipeline. 4. FLOOD CONTROL'S OPERATION OF CHANNEL. Flood Control shall have the right to repair, replace, reconstruct, relocate, or perforin any other work that Flood Control deems, in its sole discretion, to be necessary for the operation of the Channel. In the event that KL:DRA:eh G:1GrpData\Rea1Prop\EBMUD Pipeline\91902EBMUD CommonUse SoBroadTunnel.doc Page 2 of 5 911912402 12:17 PM Gammen Use Agreement FloodControl determines to undertake a project that will require construction, excavation, drilling, and/or the driving of any type of piling(s) into the earth below an elevation of three feet (Y) under the filter blanket or foundation of the Flood Control Channel, or any activity that will require blasting and/or exploding (together known as "Penetrating Improvements"), or that, in Flood Control's sole discretion, may otherwise affect the Water Pipeline, Flood Control shall, not less than one hundred-eighty(180) days prior to awarding a contract for construction, submit detailed construction plans and specifications to EBMUD for all proposed improvements for EBMUD to review and determine whether such improvements will endanger, damage, and/or interfere with EBMUD's tunnel located within the Permanent Easement area. Within sixty (60) days after its receipt of said plans and specifications, EBMUD shall then determine what measures are reasonably necessary to protect EBMUD's Water Pipeline from the construction of the improvements, and shall notify Flood Control in writing of said measures. EBMUD shall be responsible for designing, constructing, installing, and maintaining, at its sole cost and expense, those protective measures made necessary by the Penetrating Improvements, or other construction activities, and EBMUD shall be solely responsible to provide install said measures at its sole cost and expense in a manner that will not inhibit, delay, reduce, or negatively affect Flood Control's construction. The protective measures for which EBMUD is responsible shall be submitted to Flood Control for an Encroachment Permit as required herein. Flood Control reserves the right to require EBMUD to reasonably modify its facilities to accommodate Flood Control's construction. Said modifications shall not include relocating the Water Pipeline, but may include alteration of sub-surface features of the Water Pipeline. In the event that, after the installation of EBMUD's Water Pipeline, EBMUD determines, in its sole discretion, that the Water Pipeline must be relocated or modified to withstand the effects of the Channel, then EBMUD shall be solely responsible to perform said relocation or modifications, at EBMUD's sole cost, expense, and liability. S. DAMAGE TO FLOOD CONTROL'S PROPERTY: Any damage to Flood Control's facilities caused by EBMUD, its employees, contractors, or agents during construction of the Water Pipeline, or at any time thereafter, shall be repaired by EBMUD under the direction of Flood Control, and all costs, including, but not limited to design, construction, review, inspection, and administration for said repairs shall be paid in full by EBMUD to Flood Control. In the event that EBMUD fails to repair or replace, as determined solely by Flood Control, any portion of the Channel as required by Flood Control, or by this agreement, Flood Control can perform the work, and EBTMUD shall reimburse Flood Control for all expenses that Flood Control incurs in completing said work, including, but not limited to all costs of engineering and administration. In the event that any survey monitoring points, including, but not limited to, the extensometers placed under the Channel, shows settlement in excess of , the Channel'will be considered to have been damaged, and shall be replaced or repaired by EBMUD to the satisfaction of Flood Control and the United States Army Corps of Engineers. 6. EMERGENCY SITUATIONS. In the event that EBMUD identifies an emergency situation involving EBMUD's Water Pipeline or appurtenances, EBMUD agrees to immediately notify the Flood Control so that Flood Control can take appropriate emergency actions, as necessary. An "emergency" shall be defined as a situation, which causes discontinuation of, or KL:D A:eh G:\GrpData\Rea1PropT9MUD Pipeline\91802EBMUD CommonUse SoBroadTUnnel.doc Page 3 of 5 9./19/2002 12:17 PM Comm©n Use .Agreement immediate threat to, the operation of the EBMUD's Water Pipeline, or of the operation of Flood Control's Channel, or harm or danger to the general public. 7. INDEMNIFICATION: EBMUD shall defend, indemnify, save and hold. harmless Flood Control and its officers, agents, employees, and contractors from any and all claims, costs and liabilities for any damages, injury or death arising from or connected with the performance hereof, due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of EBNIUD or any other person under the EBMUD's control, including but not limited to liability arising from injury or death to members of the public using the property described in the Permanent Easements or the TCE, save and except claims or litigation arising through the sole negligence or willful misconduct of Flood Control, and EBMUD shall make good to and reimburse .Flood Control for any expenditures, including reasonable attorney's fees, Flood Control may make by reason of such matters. EBMUD further agrees that EBMUD shall save and hold Flood Control harmless from any and all damages arising out of inverse condemnation concerning such matters, except that Flood Control shall be responsible for a share of liability corresponding solely to the actual percentage of the cause in fact of Flood Control's facilities as deliberately designed and constructed. EBMUD further agrees to assume all joint and several liability for tort actions to the extent such liability exceeds the actual percentage of fault attributable to the actions of Flood Control and its officers and employees. 8. NO ASSIGNMENT: EBMUD shall not transfer, apportion, or assign this Agreement without Flood Control's prior written consent, which may be withheld in Flood Control's sole discretion. 9. ENTIRE AGREEMENT: This Agreement, including the Recitals and the terms and conditions of the exhibits attached hereto, contains the entire agreement between the parties hereto and shall not be modified in any manner except by an instrument in writing executed by the parties hereto or their permitted successors or assigns. 10. CONSTRUCTION: This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. The parties to this Agreement and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. 11. SUCCESSORS AND ASSIGNS: Subject to Section 8. No Assignment above, this Agreement and all of the covenants contained herein shall inure to the benefit of and be binding upon the heirs, successors, and assigns of the respective parties hereto. 12. WAIVER: A waiver of any breach of any covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. 13. SEVERABILITY: If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected. KL:DRA:eh G:\GrpData\Rea1Prep\EBMUD Pipeline\91802EBMUD CotnmonUse SoBroadTunnel.doc Page 4 of 5 9/19/2002 12:17 PM Common Use A ueernent 14. GOVERNING LAW AND VENUE: This Agreement shall be governed by and construed in accordance with California law. The venue of any litigation pertaining to this Agreement shall be Contra Costa County, California. IN WITNESS WHEREOF, this Common Use Agreement is signed and executed this day of , 2002. FLOOD CONTROL: EBMUD: CONTRA COSTA COUNTY FLOOD EAST BAY MUNICIPAL UTILITY DISTRICT CONTROL AND WATER CONSERVATION DISTRICT By__ Maurice M. Shiu, By: Chief Engineer Stephen J. Boeri, Manager, Real Estate Services APPROVED AS TO FORM: By: Lynelle M. Lewis, Secretary of the District By Silvano B. Marchesi, County Counsel C 1GrpData\Rea1Prop\EBMUD Pipeline\91802EBMUD CommonUse SoBroadTunnel.dac Page 5 of 5 9/19/2002 12:17 PM Exhibit "A" Tunnel Easement RECORDING REQUESTED BY East Bay Municipal Utility District AND WHEN RECORDED MAIL TO East Bay Municipal Utility District P.O. Box 24055 Oakland, CA 94623 Attn. Real Estate Services Stephen J. Boeri. SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT OF EASEMENT THIS RAl'**1T OF EASEMENT is made and entered into this _ clay of , 2002, by and between CONTRA COSTA COUNTY, a political subdivision of the State of California ("County") and EAST BAY MUNICIPAL UTILITY DISTRICT, a public corporation organized and existing under the laws of the State of California ("EBMUU"). RECITALS A. County owns fee title absolute to a strip of land of varying width that runs from north Concord through the City of Walnut Creek to the City of San Raman in Contra Costa County. Said strip of land is more commonly known as the San Ramon Transportation Corridor (the "SRTC"). B. The Contra Costa County Flood Control and Water Conservation District ("Flood Control")has condemned an easement over a portion of that strip of land wherein Flood Control has placed a concrete box culvert flood control channel (the"Channel"). C. EBMUD desires to bore an approximately ten font (10') wide tunnel underneath Flood Control's Channel in order to install one (1) sixty-nine inch (69") wide water pipeline ("Water Pipeline"), and desires to acquire an easement from County for the placement of the Water Pipeline. The easement area will be a thirty foot by thirty foot (30' X 30') square the top of which will be located approximately ten feet (10')below the bottom of Flood Control's Channel and running the length of the Channel for a distance beginning generally parallel to Civic Park and ending at Newell Avenue in the City of Walnut Creep, California, as more particularly described in Exhibit "A" and shown on Exhibit "B," (Sheets 1-3 of 10123 --G), and Exhibit "C" (profile and crass section views) each of which Exhibits are attached hereto and made a part hereof, in the location shown in the Plans and Specifications described herein, and on file with the Contra Costa County Real Property Division. The real property described and shown in Exhibits"A," "B,"and"C"shall hereinafter together be referred to as the"Property." Page 1 of 10 KL.DRA:eh GAGrpData\Rea1Prop\EBMUD Pipeline\91802EBMUD Ease Tusnnet.doc 911 912002 12:10 PM Exhibit "A" Tunnel Easement AGREEMENT 1. TUNNEL EASEMENT: County hereby grants to EBMUD a perpetual, non-exclusive sub-surface tunnel easement ("Tunnel Easement") more particularly described and shown in Exhibits "A," "B," and "C" hereto, for the purpose of laying dawn, constructing, reconstructing, removing, replacing, repairing, maintaining, operating, and using the 'grater Pipeline described herein, and all necessary braces, connections, fastenings, and other appliances and fixtures, including underground telemetry and electrical cables for use in connection therewith and appurtenant thereto. 2. CONSIDERATION. EBMUD has hired Roland Burchard, MAI, to appraise the value of the Tunnel Easement. County and EBMUD have agreed that the results of Mr. Burchard`s appraisal will be binding on the parties. In consideration for the conveyance of the Tunnel Easement to EBMUD, EBMUD shall pay in full the appraised value of the Tunnel Easement, as determined by Mr. Burchard, within ten (10) days following completion of Mr. Burchard's appraisal of the 'funnel Easement. 3. COUNTY's 'TITLE: NON-EXCLUSIVE USE: This Grant of Easement is for EBMUD's non.-exclusive use of the Property. The Property lies within the boundaries of the SRTC, which SRTC is owned in fee title by County. EBMUD hereby acknowledges County's title to the Property and agrees never to assail or resist said title. This Grant of Easement is subject and subordinate to all existing rights, rights of way, licenses, reservations, franchises and easements of record, that would be evident from a physical inspection or accurate survey of the Property, in and to the Property. It shall be EBMUD's sole responsibility, obligation, and liability to determine if any other facilities have been so located within or near the Property boundaries. EBMUD agrees to take all precautions required to avoid damage to the facilities of the existing users. If EBMUD damages the facilities or improvements of any existing user, EBMUD shall repair or replace such facilities at EBMUD's sole cost and expense. Nothing contained herein shall be construed to prevent County from granting ether easements, franchises, licenses or rights of way over the Property, provided however, that said subsequent uses do not unreasonably prevent or obstruct EBMUD's easement rights hereunder. 4. PRIMARY USE OF THE PROPER'T'Y: The primary use ("Primary arse") of the SRTC (of which the Property is a part) is for transportation uses, including but not limited to, a transit system ("Transit System"), recreational uses, including but not limited to, a walking/jogging/biking trail, and other public uses, including, but not limited to, the installation of pipelines and utility services, including, but not limited to, use as the Channel. EBMUD acknowledges and agrees that the uses just described constitute the Primary Use of the SRTC and that any and all rights granted or implied by this Grant of Easement are secondary and subordinate to the Primary Use of the SRTC. EBMUD shall not, at any time, obstruct the Property or use or permit the public to use the Property in any manner that will interfere with or impair the Primary Use of the SRTC. S. EBMUDIS USE;_PERMITS BY COUNTY: EBMUD's use of the Property, and appurtenances thereto, is non-exclusive and shall be limited to the installation, construction, reconstruction, removal, replacement, repair, upgrading, maintenance, operation, servicing, and Page 2 of 10 KL:DRA:eh GAGrppata\Rea1Prop\EBMUD PipelineW1902EBMUD Ease Tunnel.doc 9/19/2002 12:10 PM Exhibit "A" 'Funnel Easement use of the Water Pipeline described herein, and for no other purpose without County's prior written consent. EBMUD shall, prior to any construction, reconstruction, remodeling, or installation within the Property boundaries, submit specific plans and. specifications ("Pians and Specifications") to the County for review and written approval. Such written approval, together with any additional requirements, shall be in the form of both. this Agreement and an Encroachment Permit issued by County's Application and Permit Center. Normal maintenance and repair by EBMUD of its facilities within the Property, consisting of inspection and routine servicing of existing pipelines in a manner that will not create a public disturbance, shall not require prior notice to the County. EBMUD shall perform maintenance and repair of its facilities so as to prevent damage to the SRTC, and all improvements thereon, including the Channel. EBMLTD shall, however, be required to obtain said Encroachment Permit prior to commencing any construction work related to the construction and installation of the Water Pipeline. EBMUD shall also be required to obtain an Encroachment Permit from County for any entry onto the SRTC for anything other than inspection and servicing of the Water Pipeline once said installation has been completed. Such Encroachment Permit shall not be unreasonably withheld. In the event that EBMUD identifies an emergency situation involving EBMUD's Water Pipeline or appurtenances, EBMUD agrees to immediately notify the County so that the County and/or EBMUD can tape appropriate emergency actions, as necessary. An emergency shall be defined as a situation, which causes discontinuation of, or immediate threat to, the operation of EBMUD's Water Pipeline, County's use of the SRTC, Flood Control's use of the Channel, or Kann or danger to the general public. 6. COMMON USE AGREEMENTS: A. Existing Common Use Requirements. D Contra Costa County Flood Control & Water Conservation District. On December 22, 1986, a Final Order of Condemnation in Superior Court Case No. 262946 ("Final Order") was recorded in the Official Records of Contra Costa County pursuant to which a perpetual non-exclusive easement was condemned to Flood Control across a portion of the SRTC. The Judgment In Condemnation entered in Superior Court Case No. 262946 provides that in the event County grants any subsequent easements or licenses within the real property described in Exhibit "A" thereto, County shall require each subsequent grantee to enter into a common use agreement with Flood Control, which agreement shall contain, at a minimum, certain terms and conditions contained therein. A recorded copy of that Final Order is attached hereto and made a part hereof as Exhibit `°D." County and EBMUD hereby acknowledge and agree that portions of the Tunnel Easement lie within the real property described in Exhibit "A" to the Final Order attached hereto, that a common use agreement between EBMLTD and Flood Control is necessary, and that EBMUD shall be required, as a condition precedent to the exercise by EBNIUD of any right granted hereunder, to enter into a common use agreement with Flood Control in the form attached hereto as Exhibit "E" and incorporated herein. Q Central Contra. Costa Sanitary District. On December 1.6, 1986, the Central Contra Costa Sanitary District ("CMD") acquired surface easements and sub-surface facility easements ("CCCSD Easements") from County in the general vicinity of the Tunnel Easement. A recorded copy of said easement document is attached hereto and made a part hereof as Exhibit "C." Section 3. of that document states that in the event that County conveys an easement to any third party(a"user") which easement area "overlap or overlays"the areas of Page 3 of 10 KL:DRA:eh GAGrpData\RealProp\EBMUD Pipeline\91902EBMLID Ease`runnel.doc 9/1 9/2002 12:10 PM Exhibit "A" Tunnel Easement CCCSD's sub-surface facility easements, then that third party shall enter into a common use agreement with CCCSD, and that common use agreement shall include specific language shown in that document attached hereto. B. Written Evidence. As a condition precedent to the exercise of EBMUD's rights hereunder, EBMUD shall provide written evidence, signed by CCCSD, that 1) EBMUD's easements described herein do not overlay or overlap CCCSD's easements, or, in the alternative, 2) EBMUD's easements described herein do overlay or overlap CCCSD's easements, and EBMUD has entered into said common use agreement with CCCSD. In the event that EBMUD does enter a common use agreement with CCCSD, then EBMUD shall provide written evidence to County, signed by CCCSD, whereby CCCSD states that County's obligations described in the CCCSD Easements document referred to above, have been satisfied in full. EBMUD shall be responsible for satisfying any other common use requirements contained in any other documents of record. C. /Future Common Use Requirements. The Tunnel Easement is perpetual and.non- exclusive. However, any sub-surface easement granted by the County to any user("User")other than EBMUD subsequent to this Grant of Easement which overlaps or overlays the Tunnel Easement shall require the User of the subsequent easement to enter into a common use agreement with the County and EBMUD prior to the User commencing construction of the User's facility, which shall contain, at a minimum,the following provisions: 1) User is required to submit detailed construction plans for all proposed improvements within the Property requiring excavations, drilling, boring, and/or the driving of any type of piling(s) into the earth below an elevation of three feet (3') under Flood Control's Channel and any activity that will require blasting and/or exploding, for review and determination by EBMUD that such improvements shall not endanger, damage, and/or interfere with.EBMUD's facilities located within the Tunnel Easement area. 2) The User shall remove or relocate its facility in a timely manner and at no cost to the County or EBMUD as reasonably necessary to accommodate EBMUD's right to install, construct, alter, replace, enlarge,repair, maintain, and operate EBMUD's Water Pipeline. 3) When EBMUD determines to undertake a project which shall necessitate the removal or relocation of the User's facility within EBMU`D's Tunnel Easement, EBMUD shall provide County and the User with a minimum of ninety(90)calendar days written notice of the need for User to remove or relocate its facility. The User shall submit a removal or relocation plan to EBWD and County within thirty(30) calendar days of receipt of notice to do so. The EBMUD shall, and County may, review and comment on the plan within thirty (30) calendar days of its receipt. The User shall modify the plan to incorporate EBMUD's and County's comments, if any, and resubmit the plan for EBMUD's and County's written approval. The written approval by EBMUD shall not be unreasonably withheld. 4) Any damage done to EBMUD's facilities by the User shall be repaired by EBMUD and the User shall pay for all costs. The User shall provide a bond or other surety acceptable to EBNTUD on or before the execution of the common use agreement by EBMUD, in a sufficient amount to EBMUD which amount shall be determined by EBMUD as a guarantee that the Laser shall remove or relocate its facilities upon notification to do so by EBMUD. 5) The User shall defend, indemnify, save and hold harmless the County and EBMUD and its officers and employees from any and all claims, costs and liabilities for any damages, injury or death arising from or connected with the performance hereof, due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of the User or any other person under its control, including but not limited to liability arising from injury or death to Page 4 of 14 KU DRA xh GAGrpData\Rea1Prop\EBrMUD PipelineW1802EBMUD Ease Tunnel,doc 9/19/2002 1110 PM Exhibit "A." Tunnel Easement members of the public using the property described in the subsequent easement, save and except claims or litigation arising through the sole negligence or willful misconduct of EBMUD, and shall snake good to and reimburse EBMUD or County, as the case may be, for any expenditures, including reasonable attorney's fees, EBMUD or County may make by reason of such matters. The User further agrees to assume all joint and several liability for tort actions to the extent such liability exceeds the actual percentage of fault attributable to the actions of EBMUD and its officers and employees. 7. FURTHER USE BY COUNTY- A. EBMUD understands and agrees that County may use portions of the SRTC for the construction, installation, and operation of a Transit System, or other uses, and that such uses may require the County's use of portions of the Property. County agrees that it will attempt not to use portions of the Property that will limit or impede EBMUD's use of the Property described herein, however County shall specifically have the right to construct a Transit System over any portion of the Property. EBMUD hereby acknowledges that EBMUD shall be solely responsible, at its sole cost and expense to design, engineer, construct, reconstruct and maintain its Water Pipeline in a manner that will withstand the significant weight and vibration conducive to a Transit System, and Compatible Uses described herein. The following uses shall be considered to be"Compatible Uses,"may be constructed either within or over all or any portion of the Property, and shall specifically not be considered as limitations or impediments to EBMUD's use of the hater Pipeline: fences, surface parking, trails, roads, streets, other utility facilities, paved surfaces, railways, rail beds, all features of a Transit System, including, but not limited to, switches and station facilities such as loading platforms and canopies, and any other improvements, including, but not limited to, removable noise or retaining walls Built no closer than ten feet (10') from the centerline of the Surface Easement described herein. EBMUD agrees never to assail County's right to construct or install the Compatible Uses described above. B. Not less than 180 days prior to awarding a contract for construction, County shall submit detailed construction plans and specifications to EBMUD for all proposed improvements that will require excavations, drilling, and/or the driving of any type of piling(s) into the earth below an elevation of three feet (3') under the Flood Control Channel, and any activity that will require blasting and/or exploding(together known as"Penetrating Improvements"), for review and determination by EBMUD that such improvements will not endanger, damage, and/or interfere with EBMUD's facilities located within the Property. Within sixty (60) days after its receipt of said plans and specifications, EBMUD shall then determine what measures are reasonably necessary to protect EBMUD's facilities from the construction of the improvements, and shall notify County in writing of said measures. EBMUD shall be responsible for designing, constructing, installing, and maintaining, at its sole cost and expense, those protective measures made necessary by the Penetrating Improvements. If any of such excavations, drilling, pile driving, blasting, or exploding is related to either a Transit System or the Compatible Uses described above, then EBMUI) shall be solely responsible to reinforce and protect its facilities in a manner that will not inhibit, delay, reduce, or negatively affect the construction of the Transit System. The protective measures for which EBMUD is responsible shall be submitted to County for an Encroachment Permit as required in Section S. EBMUD's Use; Permits By County, above. County reserves the right to require EBMUD to reasonably modify its facilities to accommodate County's construction of the Compatible Uses described above. Said modifications shall not Page S of 10 KL:DR_A:eh GAGrpData\RealProp\EBMUD Pipeline191802EBMUD Ease Tunnel.doc 9/19/2002 i2:10 PM Exhibit "A" Tunnel Easement include relocating the Nater Pipeline, but may include alteration of sub-surface features of the Water Pipeline. C. In the event that, after the installation of EBMUD's Water Pipeline, EBMUD determines, in its sole discretion, that the Water Pipeline must be relocated or modified to withstand the effects of the Compatible Uses described herein, including, but not limited to, a Transit System, then EBMUD shall be solely responsible to perform said relocation or modifications, at EBMUD's sole cost, expense, and liability. In the event that EBMUD determines to relocate the Water Pipeline, EBMUD shall only have the right to relocate the Water Pipeline within the boundaries of the Property, and shall have no right herein to relocate the Water Pipeline outside of the Property boundaries. D. EBMUD shall construct any improvements for which it is deemed responsible as described in this Section in a manner that will not unreasonably delay County's construction of the Compatible Uses. In the event that EBMUD fails to commence said work within thirty (30) days after being directed to do so by County, or such reasonable extension as County may agree to in writing, or fails to complete the required work within a time period mutually agreed to by County and EBMUD, County may perform or complete the work at the expense of EBMUD, which expense EBMUD agrees to pay to County promptly upon demand, including but not limited to, engineering costs and any legal expenses incurred to collect such costs. 8. RESTORATION OF PROPERTY: EBMUD agrees that upon the completion of any of its works described in the Plans and Specifications referred to herein, it will restore the Property as provided in said.Plans and Specifications. 9. DAMAGE TO COUNTY PROPERTY: Any and. all County property, facilities, landscaping, or other improvements, removed or damaged as a result of the use of, or access to, the Property by EBMU`D, or any ether person or entity acting under EBMUD's direction or control, shall, at County's sole discretion and direction, be repaired or replaced by County, with all costs and expenses incurred by County to be paid by EBMUD within forty-five (45) days after receiving an invoice from County (including but not limited to engineering costs and legal costs of collecting any unpaid expenses), or, in the alternative, and only with County's prior written consent, said property, facilities, landscaping, or other improvements so damaged or removed, shall be repaired or replaced by EBMUD, at the sole cost and expense of EBML.'D, to a condition that is equivalent to or better than their condition existing just prior to its damage or removal. In the event that EBMUD fails to commence the required work within thirty (30) days after being directed to do so by County, or such reasonable extension as County may agree to in writing, or fails to complete the required work within a reasonable time thereafter, County may perforin or complete the work at the expense of EBMUD, which expense EBMUD agrees to pay to County promptly upon demand, including but not limited to engineering costs and any legal expenses incurred to collect such costs. 1.0. DAMAGE TO GRANTEE'S FACILITIES: County shall have no responsibility for the protection, maintenance, damage to, or removal of EBMUD's facilities, appurtenances or improvements, caused by or resulting from County's use of the Property or of the SRTC or work or operation thereon. It shall be the sole responsibility of EBMUD to provide and maintain adequate protection and surface markings for its own facilities. Subject to the foregoing, if EBMUD's properly marked., protected, and maintained facilities are damaged by the sole, active negligence, or willful misconduct of County, County shall repair the damage at its sole cost and Page 6 of 10 KL:DRA:eh Cs:\CrpData\Rea1Prop\EBMUD Pipeline\91802ESMUD Ease Tunnel.doc 9/19/2002 12:10 PM Exhibit "A" Tunnel Easement expense or, at the discretion of and upon written notice from County, the damage shall be repaired by EBMUD and the pre-approved reasonable cost of such repair shall be paid for by County. EBMUD acknowledges and agrees that, under no circumstance shall County have any liability to EBMUD, or to any other person or entity, for consequential or special damages, or for any damages based on loss of use, revenue, profits, or business opportunities arising from or in any way relating to, any damage or destruction of any portion of EBMUD's facilities. EBMUD hereby acknowledges that its sole remedy for any damage to or destruction of any portion of EBMUD's facilities, to the extent County is otherwise so liable under this Grant of Easement, shall be to require County to repair or replace the damaged or destroyed portion or to reimburse EBMUD for EBMUD's pre-approved reasonable casts and expenses in repairing or replacing the damaged or destroyed portion. 11. INDEMNIFICATION, AS-IS CONDITION OF PROPERTY: A. In the exercise of all rights under this Grant of Easement, EBMUD shall be responsible for any and all injury to the public, to persons and to property arising out of or connected with EBMUD's use of the Property. EBMUD shall indemnify, defend, save, protect and hold harmless, County, its officers, agents, employees and contractors from and against any and all threatened or actual loss, damage (including foreseeable and unforeseeable consequential damages), liability, claims, suits, demands,judgments, orders, costs, fines, penalties or expense, of whatever character, including, but not limited to, those relating to inverse condemnation, and including attorneys' fees, (hereinafter collectively referred to as "Liabilities") to persons or property, direct or consequential, directly or indirectly contributed to or caused by EBMUD's operations, acts or omissions pursuant to this Grant of Easement, or EBMUD's use of the easements, save and except Liabilities arising through the sole negligence or sole willful misconduct of the County, its officers or employees. B. EBMUD further agrees to defend, indemnify, save, protect and hold harmless, County from any and all actual or threatened claims, costs, actions or proceedings to attack, set aside, void, abrogate or annul this Grant of Easement or any act or approval of County related thereto. C. EBMUD accepts the Property in an "as is" physical condition, with no warranty, guarantee, representation or liability, express or implied on the part of the County as to any matter, including, but not limited to the physical condition of the Property and/or the condition and/or possible uses of the land or any improvements thereon, the condition of the soil or the geology of the soil, the condition of the air, surface water or groundwater, the presence of known and unknown faults, the presence of any hazardous substance, materials, or other kinds of contamination or pollutants of any kind in the air, soil, groundwater or surface water, or the suitability of the Property for the construction and use of the improvements thereon. It shall be the sale responsibility of EBMUD, at its sole cost and expense, to investigate and determine the suitability of the soil, water, geologic, environmental and seismic conditions of the Property for the intended use contemplated herein, and to determine and comply with all building, planning and zoning regulations relative to the Property and the uses to which it can be put. EBMUD relies solely on EBMUD's own judgment, experience and investigations as to the present and future condition of the Property or its suitability for EBMUD's intended use and is not relying in any manner on any representation or warranty by County. EBMUD agrees that neither EBMUD, its, successors or assigns shall ever claim, have or assert any right or action against County for any loss, damage or other matter arising out of or resulting from: the presence of any hazardous substance or any other condition of the Property at the commencement of this Grant of Easement Page 7 of 10 KL:DRA:eh G:IGrpData\Rea1Prop1EBMUD Pipeline191802EBMUD Ease TunneLdoc 9/19/2002 12:10 PM Exhibit ".A." Funnel Easement or from the release of any hazardous substance in, on or around any Part of the Property or in the soil, water, subsurface strata or ambient air by any person or entity other than the County following the commencement of this Grant of Easement. As used herein, "hazardous substance" means any substance, material or waste which is or may become designated, classified or regulated as being "toxic," "hazardous" or a "pollutant" under any federal, state or local law, regulation or ordinance. D. To the extent permitted by law, EBMUD shall indemnify, defend, save, protect and hold the County harmless from and against any and all claims, demands, Liabilities, expenses (including without limitation attorneys fees and consultants fees), penalties, damages, consequential damages and losses, and costs (including but not limited to the costs of any required or necessary testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties and from and against the preparation of any cleanup, remediation, closure or other required plans whether such action is required or necessary prior to or following the termination of the easements), of any kind or nature, to the extent caused or contributed to by EBMUD's operation or performance under this Grant of Easement, or EBMUD's use, release or disposal of any hazardous substance, including all costs, claims, damages (including property and personal injury) caused by the uncovering, release or excavation of hazardous materials (including petroleum) as a result of EBMUD's construction, reconstruction, maintenance, use, replacement, or removal of its facilities, to the extent that such activities increase the costs attributable to the cleanup or remediation of such hazardous materials. E. The obligations contained in this Section shall survive the expiration or other termination of this Grant of Easement. 12. NO WARRANTIES: EBMUD understands and acknowledges that County makes no representations, warranties or guarantees of any kind or character, express or implied, with respect to the Property, and EBMUD is entering into this transaction without relying in any manner on any such representation or warranty by County. 13. ABANDONMENT: In the event that EBMUD does not install the Water Pipeline within five (5)years after the execution of this Grant of Easement, County shall have the right, at its sale discretion, to notify EBMUD in writing that EBMUD has abandoned the easement (hereafter referred to as "Non-installation Abandonment"). Upon such notice by County, 1) EBMUD shall deliver a Quitclaim Deed to County quitclaiming EBMUD's interest in and to the Property described herein, and 2)County shall pay to EBMI iD an amount not to exceed ($ ) as compensation for EBMUD's quitclaiming said Property. In the event that EBMUD installs the Water Pipeline described herein within five (5) years after the execution of this Agreement,but fails or ceases to use all or a portion of the Water Pipeline continuously for any two-year period, County shall have the right, at its discretion, to notify EBMUD in writing that EBMUD has abandoned that portion of the easement not used (hereafter referred to as "Installation Abandonment"). EBMUD shall respond to-said notice within thirty (30) days after its delivery, confirming that EBMUD has neither used nor will continue to use all or a portion of the Property, or that EBMUD intends to continue to use the Property for the purpose for which it was granted. EBMUD's failure to respond to County's notice within 30 days following delivery shall be construed as confirmation of Installation Abandonment. Upon confirmation of Installation Abandonment by EBMUD, EBMUD shall deliver a quitclaim deed ("Quitclaim Deed") to County for that portion of the easement so Page 8 of 143 Kt.:DRA:eh GAGrpDatalRea1PrapTBMUD Pipetine\91802ESMUD Ease Tunnet.doc 9/19/2002 12:40 PM Exhibit ".A" Funnel Easement abandoned. Upon delivery of said Quitclaim Deed, all rights of EBMUD in and to said Property shall thereupon cease and terminate, and shall revert to and vest in County, or its successors. In the event of Installation Abandonment, County shall have the right, in its sole discretion, to require EBMUD, at EBMUD's sole cost and expense, to remove the Water Pipeline from the Property, and to return the Property to a neat and clean condition. In the event that County requires EBMUD to remove the Water Pipeline, and upon County's receipt of the Quitclaim Deed, County shall pay EBMUD an amount to be mutually agreed to by the parties hereto,but said amount shall not exceed ($ ). In the event that County does not require EBMUD to remove the Water Pipeline, EBNIUD hereby agrees to provide said Quitclaim Deed to County without compensation from County, and agrees not to claim or seek said compensation. from County. 14. NO ASSIGNMENT OF EASEMENT. No rights granted hereunder shall be transferred, apportioned or assigned without the prier written consent of County, which may be withheld by County in its sole discretion. 15. NO SECONDARY RIGHTS: Nothing herein contained shall be deemed to construe that access or other secondary rights are conveyed by this document over any of County's adjacent lands lying outside of the Property. 16. ENTIRE AGREEMENT; This Grant of Easement, including the Recitals and Exhibits attached hereto, contains the entire agreement between the parties hereto and shall not be modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest. 17. CONSTRUCTION: This Grant of Easement shall not be construed, as if it had been prepared by one of the parties, but rather as if bath parties have prepared it. The parties to this Grant of Easement and their counsel have read and reviewed this Grant of Easement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Grant of Easement. 18. SUCCESSORS AND ASSIGNS. This indenture and all of the covenants herein contained shall inure to the benefit of and be binding upon the permitted successors and assigns of the respective parties hereto. 19. WAIVER: A waiver of any breach of any covenant or provision in this Grant of Easement shall not be deemed a waiver of any other covenant or provision in this Grant of Easement, and no waiver shall be valid unless in writing and executed by the waiving party. 20. SEVERABILITY. If any terra or provision of this Grant of Easement shall, to any extent, be held invalid or unenforceable, the remainder of this Grant of Easement shall not be affected. Page 9 of 10 KL:DRA:eh G:�GrpDatalRea1Prop\EBMUD Pipelinel91802EBMUD Ease Tunnel.doc 9/19/2002 12:10 PM Exhibit "A" Tunnel Easement 21. GOVERNING LAW AND VENUE: This Grant of Easement shall be governed by and construed in accordance with California law. The venue of any litigation pertaining to this Grant of Easement shall be Contra Costa County, California. IN WITNESS WHEREOF, this Grant of Easement is signed and executed this day of ,2002. COUNTY: EBMUD: CONTRA COSTA COUNTY EAST BAY MUNICIPAL UTILITY DISTRICT By By: Chair, Board of Supervisors Stephen J. Boeri, Manager,Real Estate Services STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA ) Can before me,John Sweeten, By: Clerk of the Board of Supervisors and County Administrator,Contra Costa County,personally appeared Lynelle M. Lewis, , who is personally known to me(or proved to me on the basis of satisfactory evidence)to Secretary of the District be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized eapacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,executed the instrument. By: Deputy Clerk Form Approved(07/99) Silvano B.Marchesi,County Counsel Page 10 of 10 KUDl2A:eh G.1GrpData\RealProp\EBMUD Pipe]ine\9I802EBMUD.Ease Tunnel.doc 9/19/2002 12:10 P Exhibit "B" South :Broadway Easement RECORDING REQUESTED BY East Bay Municipal Utility District AND WHEN RECORDED MAIL TO East Bay Municipal Utility District P.O. Box 24055 Oakland, CA 94623 Attn: Real Estate Services Stephen J. Boeri SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT OF EASEMENT THIS Grant of Easement is made and entered into this day of , 2002, by and between CONTRA COSTA COUNTY, a political subdivision of the State of California ("County") and EAST BAY MUNICIPAL UTILITY DISTRICT, a public corporation organized and existing under the laws of the State of California ("EBMUD"). RECITALS A. County owns fee title absolute to a strip of land of varying width that runs from north Concord through the City of Walnut Creek to the City of San Ramon in Contra Costa County. Said strip of land is more commonly known as the San Ramon Transportation Corridor (the "SRTC"). B. The Contra Costa County Flood Control and Water Conservation District ("Flood Control") has condemned an agreement for a portion of that strip of land wherein Flood Control has placed a concrete box culvert flood control channel (the"Channel"). C. EBMUD desires to acquire permanent surface and subsurface easements, which will extend from the east side of South Broadway, then under the Channel to the west side of South Broadway, all in the City of Walnut Creek, (the "South Broadway Easements"), as more particularly described in Exhibit "A" and shown on Exhibit "B," each of which Exhibits are attachedhereto and made a part hereof. The real property described and shown in Exhibits "A," and"B" shall hereinafter together be referred to as the"Property." D. EBMUD also desires to acquire a Temporary Construction Easement ("TCE") for the operation of equipment during the initial construction of the Water Pipeline, over that portion of the SR.TC more particularly described in Exhibit "C" and shown on Exhibit "D," each of which Exhibits is attached hereto and made a part hereof. AGREEMENT 1. SURFACE ACCESS EASEMENT: The County grants to EBMUD a non-exclusive "Surface Access .Easement" providing EBMUD the right to use the ground surface of the real Page I of I I KL:DRA:eh G:\GrpData\RealProp\EBMUD Pipeline\91802EBMUD Ease SoBroad.doc 9119,'2442 12:04 PM Exhibit "B" ,South Broadway Easement property described in Exhibit "A" for all purposes necessary and ancillary to constructing, altering, replacing, repairing,maintaining, and operating the Water Pipeline and related facilities, including, but not limited to, access for pedestrians, vehicles, and equipment of all varieties for the above-described purposes. The EBMUD's use of the Surface Access Easement shall be subject to the limitations of this Grant of Easement. 1 SUB-SURFACE EASEMENT: The County grants to EBMUD a non-exclusive "Sub- Surface Easement," as particularly described in Exhibit "B," which provides EBMUD the right to construct. alter, replace, repair, maintain, and operate the Water Pipeline and related facilities in such configurations and in such sizes as described in the Plans and Specifications referred to herein. The EBMUD shall enjoy full use of the Sub-Surface Easement, subject to the limitations of this Grant of Easement. 3. TEMPORARY CONSTRUCTION EASEMENT: County hereby grants to EBMUD a Temporary Construction Easement over and across that certain real property shown in Exhibit "C" (the "TCE Area."). The TCE herein granted shall include EBMLTD's right to enter upon the TCE Area with personnel, vehicles, and equipment for the installation of EBMUD's Water Pipeline, under conditions specifically provided in the Special Road Encroachment Permit #15974 ("Encroachment Permit") previously issued by County to EBMUD, and the Encroachment Permit to be issued by the Contra Costa County Flood Control and Water Conservation District ("Flood Control's Encroachment Permit"). The TCE shall commence on -- , and shall automatically terminate in its entirety and become null and void on— At County's request following termination of the TCE, EBMUD shall deliver a quitclaim deed to County for the TCE. 4, CONSIDERATION: EBMUD has hired Roland Burchard, MAI, to appraise the value. of the South Broadway Easements and the TCE. County and EBMUD have agreed that the results of Mr. Burchard's appraisal will be binding on the parties. In consideration for the conveyance of the South Broadway Easement and the TCE to EBMUD, EBMUD shall pay in full the appraised value of the South. Broadway Easement and the TCE, as determined by Mr. Burchard, within ten (10) days following completion of Mr. Burchard's appraisal of the South Broadway Easement and the TCE. 5. COUNTY'S TITLE; NON-EXCLUSIVE USE: This Grant of Easement is for EBMUD's non-exclusive use of the Property and the TCE Area. The Property and TCE Area lie within the boundaries of land more commonly known as the San Ramon'Transportation Corridor (t`SRTC"). Said SRTC land is owned in fee title by County. EBMUD hereby acknowledges County's title to the Property and TCE Area and agrees never to assail or resist said title. This Grant of Easement is subject and subordinate to all existing rights, rights of way, licenses, reservations, franchises and easements of record, that would be evident from a physical inspection or accurate survey of the Property and TCE Area, except that License Agreement, including all amendments, between Contra Costa County and the East Bay Regional Parks District to which EBMUD shall not be subject or subordinate. It shall be EBMUD's sole responsibility, obligation, and liability to determine if any other facilities have been so located within or near the Property and TCE Area boundaries. EBMUD agrees to take all precautions required to avoid damage to the facilities of the existing users. If EBMUD damages the facilities or improvements of any existing user, EBMUD shall repair or replace such facilities at Page 2 of 11 KUDRA:eh G:\G:pl)ata1RealProp\EBMUD Pipeline\91802EBMUD Ease SoBroad.doc 9/19/2002 1104 PM Exhibit "B" ,South Broadway Easement EBMUD's sole cast and expense. Nothing contained herein shall be construed to prevent County from granting other easements, franchises, licenses or rights of way over the Property and TCE Area, provided however, that said subsequent uses do not unreasonably prevent or obstruct EBMUD's easement rights hereunder. 6. PRIMARY USE OF THE PROPERTY: The primary use ("Primary Use") of the SRTC" (of which the Property and TCE Area are a part) is for transportation uses, including but not limited to, a transit system ("Transit System"), recreational uses, including but not limited to, a walking/jogging/biking trail, and other public uses, including, but not limited to, the installation of pipelines and utility services including, but not limited to, use as the Channel. EBMUD acknowledges and agrees that the use just described constitutes the Primary Use of the Property and TCE Area and that any and all rights granted or implied by this Grant of Easement are secondary and subordinate to the Primary Use of the SRTC. :EBMUD shall not, at any time, use or permit the public to use, the Property or the TCE Area in any manner that will interfere with or impair the County's Primary Use of the SRTC. EBMUD shall not fence said Property or TCE Area without the prior written approval of the County, and shall remove any fencing when requested by County to do so. 7. EBMUD'S USE: PERMITS BY COUNTY: EBMUD's use of the Property, and appurtenances thereto, is non-exclusive and shall be limited to the installation, construction, reconstruction, removal, replacement, repair, upgrading, maintenance, operation, servicing, and use of the Water Pipeline described herein, and for no other purpose without County's prior written consent. EBMUD's use of the TCE Area is also non-exclusive and is limited to the use of equipment for the installation of the Water Pipeline. EBMUD shall, prior to any construction, reconstruction, remodeling, excavation not related to repair of the Water Pipeline, installation, or plantings within the Property and TCE Area boundaries, submit specific plans and specifications ("Plans and Specifications") to the County for review and written approval. Such written approval, together with any additional requirements, shall be in the form of both this Agreement and Encroachment Permits issued by both the County's Application and Permit Center and by Flood Control. Formal maintenance and repair by EBMUD of its facilities within the Property, consisting of inspection and routine servicing of existing pipelines in a manner that will not create a public disturbance, shall not require prior notice to the County. EBMUD shall perform maintenance and repair of its facilities so as to prevent damage to either the SRTC, or to improvements thereon, excluding the IHT described below. EBMUD shall, however, be required to obtain said .Encroachment Permits prior to commencing any construction work related to the construction and installation of the Water Pipeline. EBMUD shall also be required to obtain Encroachment Permits from County and Flood Control for any entry onto the SRTC for anything other than inspection and servicing of the Water Pipeline once said installation has been completed. Such Encroachment Permits shall not be unreasonably withheld. EBMUD further understands that County has licensed a portion of the SRTC to the East Bay Regional Parks District ("EBRPD"), and that the EBRPD has installed a paved walking and jogging trail on the Property and TCE Area, commonly known as the Iron Horse Trail (the "11IT"). EBMUD agrees to notify and coordinate its activities with EBRPD prior to entering the SRTC for either EBMUD's construction and installation of the Water Pipeline or, after the Water Pipelinehas been installed, for any maintenance activity, which involves the excavation of, or interference with, the IHT. Page 3 of 11 KL:DRA:eh G:\GrpData\RealProp\EBMUD Pipeline\93802EBMUD Ease SaDroad.doc 9/19/2002 12:04 PM Exhibit "B" South Broadway Easement In the event that EBMUD identifies an emergency situation. involving EBTMUD's Water Pipeline or appurtenances, EBMUD agrees to immediately notify the County,Flood Control, and EBRPD so that the County, Flood Control, EBRPD, and/or EBMUD can take appropriate emergency actions, as necessary. An emergency shall be defined as a situation, which causes discontinuation of, or immediate threat to, the operation of EBMUD's Water Pipeline, the operation of County's, Flood Control's use of the Channel, EBRPD's use of the SRTC, or harm or danger to the general public. 8. COMMON USE AGREEMENTS: A. Existing;Common Use Requirements. 1) Contra Costa County Flood Control & Water Conservation District. On December 22, 1986, a Final Order of Condemnation in Superior Court Case No. 262946 ("Final Order") was recorded in the Official Records of Centra Costa County pursuant to which a perpetual nor!-exclusive easement was condemned to Flood Control across a portion of the SRTC. The Judgment In Condemnation entered in Superior Court Case No. 262946 provides that in the event County grants any subsequent easements or licenses within the real property described in Exhibit "A" thereto, County shall require each subsequent grantee to enter into a common use agreement with Flood Control, which agreement shall contain, at a minimum, certain terms and conditions contained therein. A recorded copy of that Final Order is attached hereto and made a part hereof as Exhibit "E." County and EBMUD hereby acknowledge and agree that in the event that portions of the South Broadway Easements lie within the real property described in Exhibit"A"to the Final Order attached hereto, that EBMUD will enter into a common use agreement with Flood Control in the form attached hereto as Exhibit "F" and incorporated herein. 2) Central Contra Costa Sanitary District. Can December 16, 1986, the Central Contra Costa Sanitary District ("CCCSD") acquired surface easements and sub-surface facility easements ("CCCSD Easements") from County in the general vicinity of the South Broadway Easements. A recorded copy of said easement document is attached hereto and made a part hereof as Exhibit "G." Section 3. of that document states that in the event that County conveys an easement to any third.party(a"user") which easement area"overlap or overlays" the areas of CCCSD's sub-surface facility easements, then that third party shall enter into a common use agreement with CCCSD, and that common use agreement shall include specific language shown in that document attached hereto. B. Written Evidence. As a condition precedent to the exercise of EBMUD's rights hereunder, EBMUD shall provide written evidence, signed by CCCSD or by Flood Control, as appropriate, that 1) EBMUD's easements described herein do not overlay or overlap either CCCSD's or Flood Control's easements, or, in the alternative,2)EBML.°$D's easements described herein do overlay or overlap Flood Control's or CCCSD's easements, or both, and EBNILJD has entered into said common use agreements with CCCSD and/or Flood Control. In the event that EBMUTD does enter a common use agreement with CCCSD or Flood Control, then EBMUD shall provide written evidence to County, signed by CCCSD or Flood Control as appropriate, whereby CCCSD states that County's obligations described in the CCCSD Easements or Final Order documents referred to above,have been satisfied in M. EBMUD shall be responsible for satisfying any other common use requirements contained in any other documents of record. C. Future Common Use Requirements. The South Broadway Easements are both perpetual and non-exclusive. However, any sub-surface easement granted by the County to any user ("User") other than EBMUD subsequent to this Grant of Easement which overlaps or .Page 4 of 11 KL:DRA:eh G:\GrpData\RealProp\EBMUD Pipeline\91$42EBMUD Ease SoBroad.doc 9/19/2002 12:04 PM Exhibit "B" South Broadway Easement overlays the South Broadway Easements shall require the User of the subsequent easement to enter into a common use agreement with the County and EBMUD Prior to the User commencing construction of the User's facility, which shall contain, at a minimum, the following Provisions: a) The User shall remove or relocate its facility in a timely manner and at no cost to the County or EBMUD as reasonably necessary to accommodate EBMUD's right to install; construct, alter, replace, enlarge, repair,maintain, and operate EBMUD's Water Pipeline. b) When EBMUD determines to undertake a project which shall necessitate the removal or relocation of the User's facility within EBMUD's Sub-Surface Easement, EBMUD shall provide County and the User with a minimum of ninety(90)calendar days written notice of the need for User to remove or relocate its facility. The User shall submit a removal or relocation plan to EBMUD and County within thirty (30) calendar days of receipt of notice to do so. The EBMUD shall, and County may, review and comment on the plan within thirty (30) calendar days of its receipt. The User shall modify the plan to incorporate EBMUD's and County's comments, if any, and resubmit the plan for EBMUD's and County's written approval. The written approval by EBMUD shall not be unreasonably withheld. C) Any damage done to EBMUD's facilities by the User shall be repaired by EBMUD and the User shall pay for all costs. The User shall provide a bond or other surety acceptable to EBMUD on or before the execution of the common use agreement by EBMUD, in a sufficient amount to EBMUD which amount shall be determined by EBMUD as a guarantee that the User shall remove or relocate its facilities upon notification to do so by EBMUD. d) The User shall defend, indemnify, save and hold harmless the County and EBMUD and its officers and employees from any and all claims, costs and liabilities for any damages, injury or death arising from or connected with the performance hereof, due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of the User or any other person under its control, including but not limited to liability arising from injury or death to members of the public using the property described in the subsequent easement, save and except claims or litigation arising through the sole negligence or willful misconduct of EBMUD, and shall make good to and reimburse EBMUD or County, as the case may be, for any expenditures, including reasonable attorney's fees, EBMUD or County may make by reason of such matters. The User further agrees to assume all joint and several liability for tort actions to the extent such liability exceeds the actual percentage of fault attributable to the actions of EBMUD and its officers and employees. 9. FURTHER USE BY COUNTY: A. EBMUD understands and agrees that County intends to use portions of the SRTC for the construction, installation, and operation of a Transit System, or other uses, and that such uses may require the County's use of portions of the Property and TCE Area. County agrees that it will attempt not to use portions of the Property and TCE Area that will limit or impede EBMUD's access to the Water Pipeline, however, County shall specifically have the right to construct a Transit System or any of the Compatible Uses described below over any portion of the Property and TCE Area. EBMUD hereby acknowledges that EBMUD shall be solely responsible, at its sole cost and expense to design, engineer, construct, reconstruct, and maintain its Water Pipeline in a manner that will withstand the significant weight and vibration conducive to a Transit System, and. the Compatible Uses described herein. The following uses shall be considered to be `Compatible Uses," may be constructed over all or any portion of the Property and TCE Area, and shall specifically not be considered as limitations or impediments to EBMUD's access to the Water Pipeline: landscaping, not including trees, fences, surface Page 5 of 1 i KL DRA:eh G:iGrpData\Rea]Prop\EBMUD Pipeline\91902E$MUD Ease SoBroad.doc 9/19/2002 12:04 PM Exhibit "B" South Broadway Easement parking, trails, reads, streets, other utility facilities, paved surfaces, railways, rail beds, all features of a Transit System, including, but not limited to, switches and station facilities such as loading platforms and canopies, and any other improvements, including, but not limited to, removable noise or retaining walls built no closer than ten feet (10') from the centerline of the Surface Access Easement described herein. EBMUD agrees never to assail County's right to construct or install the Compatible Uses described above. B. The following uses shall be considered "Nan-Compatible Uses" for the purposes of this easement: Buildings with foundations, multi-level parking facilities, embankments (which shall be defined as a change in the existing surface elevation (grade) of the Surface Access Easement area by more than one foot (1') without first having the written consent of EBMUD, which consent shall not be unreasonably withheld), and other permanent structures with foundations that are built within the boundaries of the Surface Access Easement described in Exhibit "A" herein, and which would reasonably interfere with EBMUD's use of its Water Pipeline and/or prevent EBMUD's reasonable access to the Water Pipeline for maintenance and repair purposes. Although it is not the intent of County to locate Non-Compatible Uses within ten feet (10') from the centerline of the Surface Access Easement described herein, County shall not be prevented from doing so. C. Not less than 180 days prior to awarding a contract for the construction of either Compatible Uses or Non-Compatible Uses, County shall submit to EBMUD design plans and specifications for said improvements for EBMUD's review. Within sixty (60) days after its receipt of said plans and specifications, EBMUD shall then determine what measures are reasonably necessary to protect EBMUD's Water Pipeline from additional load and/or vibration resulting from the improvements, and shall notify County in writing of said measures. EBMUl) shall be responsible for designing, constructing, installing, and maintaining at its sole cost and expense, those protective measures made necessary by the Compatible Uses described above. In the event that County determines, in its sole discretion, to construct any of said Non-Compatible Uses over any portion of the Property and TCE Area, then County shall be responsible, at its sole cost and expense, to design, construct, install, and maintain reinforcements to protect, and modifications to access, the Water Pipeline, as reasonably acceptable to EBMUD. The protective measures for which EBMUD is responsible shall be submitted to County for an Encroachment Permit as required in Section 6. EBMUD's Use,Permits By County, above. County reserves the right to require EBMUD to reasonably modify its facilities to accommodate County's construction of the Compatible Uses described above. Said modifications shall not include relocating the Water Pipeline, but may include alteration of surface and sub-surface features of the Water Pipeline. D. In the event that, after the installation of EBMUD's Water Pipeline, EBMUD determines, in its sole discretion, that the Water Pipeline must be relocated or modified to withstand the effects of the Compatible Uses described herein, including, but not limited to, a Transit System, then EBMUD shall be solely responsible to perform said relocation or modifications, at EBMUD's sole cost, expense, and liability. In the event that EBMUD determines to relocate the Water Pipeline, EBMUD shall only have the right to relocate the Water Pipeline within the boundaries of the Sub-Surface Easement described in Exhibit "B" hereto, and shall have no right herein to relocate the Water Pipeline outside of the Sub-Surface Easement boundaries. E. EBMUD shall construct any improvements for which it is deemed responsible as described in this Section in a manner that will not unreasonably delay County's construction of the Compatible Uses. In the event that EBMUD fails to commence said work within thirty (30) Page 6 of I I GAGrp€7ata1Rea1PropIEBMUD Pipeline191802EBMUB Ease soBroad.doc I119/2002 12:04 PM Exhibit "B" South Broadway Easement days after being directed to do so by County, or such reasonable extension as County may agree to in writing, or fails to complete the required work within a time period mutually agreed to by County and EBMUD, County may perforin or complete the work at the expense of EBMUD, which 'expense EBMUD agrees to pay to County promptly upon demand, including but not limited to, engineering costs and any legal expenses incurred to collect such costs. 10. RESTORATION OF PROPERTY: The EBMUD agrees that upon the completion of any of its works described in the Plans and Specifications referred to herein, it will restore the Property and TCE Area as provided in said Plans and Specifications. Upon the completion of any of EBMUD's work after the installation of the Water Pipeline has been completed, EBMUD will restore as near as possible the surface of the ground to the condition it was in just prior to the commencement of said work including, but not limited to, the replacement of all paving, landscaping, fixtures, and improvements, all at EBMUD's sole cost and expense. 11. DAMAGE TO COUNTY PROPERTY: Any and all County property, facilities, landscaping, or other improvements, removed or damaged as a result of the use of, or access to, the Property and TCE. Area by EBMUD, or any other person or entity acting under EBMUD's direction or control, shall, at County's sole discretion and direction, be repaired or replaced by County, with all costs and expenses incurred by County to be paid by EBMUD within forty-five (45) days after receiving an invoice from County (including but not limited to engineering costs and legal costs of collecting any unpaid expenses), or, in the alternative, and only with County's prior written consent, said property, facilities, landscaping,or other improvements so damaged or removed, shall be repaired or replaced by EBMUD, at the sole cost and expense of EBMUD, to a condition that is equivalent to or better than their condition existing just prior to its damage or removal. In the event that EBMUD fails to commence the required work within thirty (30) days after being directed to do so by County, or such reasonable extension as County may agree to in writing,or fails to complete the required work within a reasonable time thereafter, County may perforin or complete the work at the expense of EBMUD, which expense EBMUD agrees to pay to County promptly upon demand, including but not limited to engineering costs and any legal expenses incurred to collect such costs. 12. DAMAGE TO GRANTEE'S FACILITIES: County shall have no responsibility for the protection, maintenance, damage to, or removal of EBMUD's facilities, appurtenances or improvements, caused by or resulting from. County's use of the Property and TCE Area or of the SRTC or work or operation thereon. It shall be the sole responsibility of EBMUD to provide and maintain adequate protection and surface markings for its own facilities. Subject to the foregoing, if EBMUD's properly marked, protected, and maintained facilities are damaged by the sole, active negligence, or willful misconduct of County, County shall repair the damage at its sole cost and expense or, at the discretion of and upon written notice from County, the damage shall be repaired by EBMUD and the pre-approved reasonable cost of such repair shall be paid for by County. EBMUD acknowledges and agrees that, under no circumstance shall County have army liability to EBMUD, or to any other person or entity, for consequential or special damages, or for any damages based on loss of use, revenue, profits, or business opportunities arising from or in any way relating to, any damage or destruction of any portion of EBMUD's facilities. EBMUD hereby acknowledges that its sole remedy for any damage to or destruction of any portion of EBMft.TD's facilities, to the extent County is otherwise so liable under this Grant of Easement, shall be to require County to repair or replace the damaged or Page 7 of I 1 KL:DRA-'ch G:\GrpData\Rea1Prop\P.BMUD Pipetine\91802EBMUD tease SoBroad.doc 9/19/2002 12:04 PM Exhibit "B" South Broadway Easement destroyed portion or to reimburse EBMUD for EBMUD's pre-approved reasonable casts and expenses in repairing or replacing the damaged or destroyed portion. 13. INDEMNIFICATION,AS-IS CONDITION OF PROPERTY: A. In the exercise of all rights under this Grant of Easement, EBMUD shall be responsible for any and all injury to the public, to persons and to property arising out of or connected with EBMUD's use of the Property and TCE Area. EBMUD shall indemnify, defend, save, protect and hold harmless, County, its officers, agents, employees and contractors from and against any and all threatened or actual loss, damage (including foreseeable and unforeseeable consequential damages), liability, claims, suits, demands, judgments, orders, costs, fines, penalties or expense, of whatever character, including, but not limited to, those relating to inverse condemnation, and including attorneys' fees, (hereinafter collectively referred to as "Liabilities") to persons or property, direct or consequential, directly or indirectly contributed to or caused by EBMUD's operations, acts or omissions pursuant to this Grant of Easement, or EBMUD's use of the easements, save and except Liabilities arising through the sole negligence or sole willful misconduct of the County, its officers or employees. B. EBMUD further agrees to defend, indemnify, save, protect and hold harmless, County from any and all actual or threatened claims, costs, actions or proceedings to attack, set aside, void, abrogate or annul this Grant of Easement or any act or approval of County related thereto. C. EBMUD accepts the Property and TCE Area in an "as is"physical condition, with no warranty, guarantee, representation or liability, express or implied on the part of the County as to any matter, including, but not limited to the physical condition of the Property and WE Area and/or the condition and/or possible uses of the land or any improvements thereon, the condition of the soil or the geology of the soil, the condition of the air, surface water or groundwater, the presence of known and unknown faults, the presence of any hazardous substance, materials, or other kinds of contamination or pollutants of any kind in the air, soil, groundwater or surface water, or 'the suitability of the Property and TCE Area for the construction and use of the improvements thereon. It shall be the sole responsibility of EBMUD, at its sole cost and expense, to investigate and determine the suitability of the soil, water, geologic, environmental and seismic conditions of the Property and TCE Area for the intended use contemplated herein, and to determine and comply with all building, planning and zoning regulations relative to the Property and TCE Area and the uses to which it can be put. EBMUD relies solely on EBMUD's own judgment, experience and investigations as to the present and future condition of the Property and TCE Area or its suitability for EBMUD's intended use and is not relying in any manner on any representation or warranty by County. EBMUD agrees that neither EBMUD, its, successors or assigns shall ever claim, have or assert any right or action against County for any loss, damage or other matter arising out of or resulting from the presence of any hazardous substance or any other condition of the Property and TCE Area at the commencement of this Grant of Easement or from the release of any hazardous substance in, on or around any part of the Property and TCE Area or in the soil, water, subsurface strata or ambient air by any person or entity other than the County following the commencement of this Grant of Easement. As used herein, "hazardous substance" means any substance, material or waste which is or may become designated, classified or regulated as being "toxic... "hazardous" or a "pollutant" under any federal, state or local law, regulation or ordinance. To the extent permitted by law, EBMUD shall indemnify, defend, save, protect and hold the County harmless from and against any and all claims, demands, Liabilities, expenses (including without limitation Page 8 of 11 KL DRA:eh G:\GrpData\ReaIPmp\EBMUD Pipeiine\9I802EBMUD Ease SoSroad,doc 9/19/2002 12::04 PM Exhibit "B" South Broadway Easement attorneys fees and consultants fees), penalties, damages, consequential damages and losses, and costs (including but not limited to the costs of any required or necessary testing, remediation, repair, removal, cleanup or detoxification of the Property and TCE Area and surrounding properties and from and against the preparation of any cleanup, remediation, closure or other required plans whether such action is required or necessary prior to or following the termination of the easements), of any kind or nature, to the extent caused or contributed to by EBMUD's operation or performance under this Grant of Easement, or EBMUD's use, release or disposal of any hazardous substance, including all costs, claims, damages (including property and personal injury) caused by the uncovering, release or excavation of hazardous materials (including petroleum) as a result of EBMUD's construction, reconstruction, maintenance, use, replacement, or removal of its facilities, to the extent that such activities increase the costs attributable to the cleanup or remediation of such hazardous materials. D. The obligations contained in this Section shall survive the expiration or other termination of this Grant of Easement. 14, NO WARRANTIES: EBMUD understands and acknowledges that County makes no representations, warranties or guarantees of any kind or character, express or implied, with respect to the Property and TCE Area, and. E13MTJD is entering into this transaction without relying in any manner on any such representation or warranty by County. 15. ABANDONMENT: In the event that EBMUD does not install the Nater Pipeline within five (5) years after the execution of this Grant of Easement, County shall have the right, at its sole discretion, to notify EBMUD in writing that EBMUD has abandoned the easement (hereafter referred to as "Non-Installation Abandonment"). Upon such notice by County, 1) EBMUD shall deliver a Quitclaim Deed to County quitclaiming EBMUD's interest in and to the Property and TCE Area described herein, and 2) County shall pay to EBMUD an amount not to exceed_ {$ ) as compensation for EBMUD's quitclaiming said Property. In the event that EBMUD installs the Water Pipeline described herein within five (5) years after the execution of this Agreement, but fails or ceases to use all or a portion of the Water Pipeline continuously for any two-year period, County shall have the right, at its discretion, to notify EBMUD in writing that EBMUD has abandoned that portion of the easement not used (hereafter referred to as "Installation Abandonment"). EBMUD shall respond to said notice within thirty (30) days after its delivery, confirming that EBMUD has neither used nor will continue to use all or a portion of the Property, or that EBMUD intends to continue to use the Property for the purpose for which it was granted. EBMUD's failure to respond to County's notice within 30 days following delivery shall be construed as confirmation of Installation Abandonment. Upon confirmation of Installation Abandonment by EBMUD, EBMUD shall deliver a quitclaim deed ("Quitclaim Deed") to County for that portion of the easement so abandoned. Upon delivery of said Quitclaim Deed, all rights of EBMUD in and to said Property and TCE Area shall thereupon cease and terminate, and shall revert to and vest in County, or its successors. In the event of Installation Abandonment, County shall have the right, in its sole discretion, to require EBMUD, at EBMUD's sole cost and expense, to remove the Water Pipeline from the Property, and to return the Property and TCE Area to a neat and clean condition. In the event that County requires EB.MUD to remove the Water Pipeline, and upon County's receipt of the Quitclaim Deed, County shall pay EBMUD an amount to be mutually Page 9 of 1 i KL:DRA:eh G:\GrpData\Rea1Prop\EBMUD Pipeline\91802EBMUD Ease soBroad.doc 9/19/2002 12:04 PM Exhibit "B" South Broadway Easement agreed to by the parties hereto, but said amount shall not exceed ($ -- ). In the event that County does not require EBlv1UD to remove the Water Pipeline, EBN4UD hereby agrees to provide said Quitclaim Deed to County without compensation from County, and agrees not to claim or seek said compensation from County. 16. NO ASSIGNMENT OF EASEMENT: No rights granted hereunder shall be transferred, apportioned or assigned without the prior written consent of County, which may be withheld by County in its sole discretion- 1T NO SECONDARY RIGHTS: Nothing herein contained shall be deemed to construe that access or other secondary rights are conveyed by this document over any of County's adjacent lands lying outside of the Property and TCE Area. 18, ENTIRE AGREEMENT: This Grant of Easement, including the Recitals and Exhibits attached hereto, contains the entire agreement between the parties hereto and shall not be modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest. 19. CONSTRUCTION: This Grant of Easement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared. it. The parties to this Grant of Easement and their counsel have read and reviewed this Grant of Easement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Grant of Easement. 20. SUCCESSORS AND ASSIGNS: This indenture and all of the covenants herein contained shall inure to the benefit of and be binding upon the permitted successors and assigns of the respective parties hereto. 21. WAIVER: A waiver of any breach of any covenant or provision in this Grant of Easement shall not be deemed a waiver of any other covenant or provision in this Grant of Easement, and no waiver shall be valid unless in writing and executed by the waiving party. 22. SEVERABILITY: If any term or provision of this Grant of Easement shall, to any extent, be held invalid or unenforceable, the remainder of this Grant of Easement shall not be affected. Page 10 of 11 KL:DRA:eh GAG-pData\Rea1Prop\EBMUD Pipeline\91902EBMUD Ease SoRroad.doc 9!1912002 12:04 PM Exhibit "B" South Broadway Easement 23. GOVERNING LAW AND VENUE: This Grant of Easement shall be governed by and construed in accordance with California law. The venue of any litigation pertaining to this Grant of Easement shall be Contra Costa County, California. IN WITNESS WHEREOF, this Grant of Easement is signed and executed this day of , 2402. COUNTY: EBMUDi: CONTRA COSTA COUNTY EAST BAY MUNICIPAL UTILITY DISTRICT By By: Chair, Board of Supervisors Stephen J. Boeri, Manager, Real Estate Services STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA ) On before me,John Sweeten, By: Clerk of the Board of Supervisors and County Administrator,Contra Costa County,personally appeared Lynelle M. Lewis, , who is personally known to me(or proved to me on the basis of satisfactory evidence)to Secretary of the District be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,executed the instrument. By: Deputy Clerk Form Approved(07/99) Silvano B.Marchesi,County Counsel KL:DRA:eh Page I I of I I G:\GrpData1Rea1Prop\EBMUD Pipeline\91802EBMUD Ease SoBroad.doc 9/19/2002 12:04 PM