HomeMy WebLinkAboutMINUTES - 10012002 - C.3 TO: BOARD OF SUPERVISORS
FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR
GATE: October 1, 2002
SUBJECT: EBMUDtWainut Creek-San Ramon Valley Improvement Project -- Temporary Right of Entry
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
. Rami _nri _d Action:
APPROVE and AUTHORIZE the Public Works Director to execute a Temporary Right of Entry
agreement between the County and the East Bay Municipal Utility District (EBMUD) effective upon
the issuance of an Encroachment Permit from the Contra Costa County Flood Control and Water
Conservation District to EBMUD related to EBMUD's installation of a 69" water pipeline in the
County's San Ramon Transportation Corridor (SRTC), Walnut Creek area.
El. Fi:nanciailIMpant:
The valuation for the Temporary Right of Entry is being determined as part of a formal appraisal of
the easements related to EBMUD's project. The compensation for the Temporary Right of Entry will
be deposited in the San Ramon Transportation Corridor Special Revenue Fund (138800) once the
appraisal has been completed.
Continued on Attachment: SIGNATURE
''RECOMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
—APPROVE
-4-,OTRER
SIGNATURE=S : _'` ✓ ^'� - ':
ACTION OF BOAR.QJ6N OCTOBER 01 , 200APPROVED AS RECOMMENDED OTHER
', z
VOTE OF SUPT RVfSORS
xx UNANOV16US(ABSENT )
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
G:\GrpData\RealProp\2002-Fi#es\BOs&RES\92602EBMUD ROE Brd.doc minutes of the Board of Supervisors on the
Orig. Div: Public Works(R/P) date shown.
Contact: Dick Awenius (313-2227)
cc: County Administrator ATTESTED:_ OCTOBER 01 , 2002
CDD, K. Piona JOHN SWEETEN, Clerk of the Board of
P.W.Accounting Supervisors and County Administrator
P. W. Environmental Svcs.,T.Torres
Board Orders Senior Clerk,Adm. By Deputy
Steve Boeri, EBMUD f
Subject: EBMUD/Walnut Creek-San Ramon Valley Improvement Project — Temporary Right of Entry
Agreement for South Broadway and Tunnel Portions, Walnut Creek area
Date: October 1, 2002
Page: 2
M. Rpasnns fnr Ro-nommandations and Rackgrmind:
EBMUD desires to install a 69" diameter water pipeline in an approximately 2.2 mile stretch of the
County-owned San Ramon Transportation Corridor (SRTC). The Pipeline will be installed in three
phases identified as the Southern Reach section running from Danville Boulevard to Stone Valley
Road in the Alamo area, and the South Broadway and the Civic Park to Newell Avenue sections in
the City of Walnut Creek.
The Board authorized the execution of the easements for the Southern Reach section on July 16,
2002. This action represents only the authorization for the execution of the Temporary Right of
Entry agreement that incorporates the terms of the South Broadway and Civic Park to Newell
Avenue easements attached as exhibits to the Temporary Right of Entry. The Board's
authorization to execute the South Broadway and Civic Park to Newell Avenue easements is not
being requested at this time because the compensation for those easements has not been
determined. The Board's authorization to execute a Common Use Agreement between the Contra
Costa Flood Control and Water Conservation District (Flood Control) and EBMUD, the South
Broadway and Civic Park to Newell Avenue easement agreements between County and EBMUD,
and a Purchase and Sale Agreement between 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 determined that EBMUD's project was not subject to the California
Environmental Quality Act (CEQA) pursuant to Article 5, Section 15061 (b)(3) of the CEQA
Guidelines.
IV. Cnn_-,P_qi1P_ncam of NeflatiMp Artfi=:
The Temporary Right of Entry agreement will not be executed.
PROJECT NAME: EBMUD San Ramon Valley Improvement Project
ADDRESS: San Ramon Transportation Corridor(SRTC)
GRANTOR: Contra Costa County
PERNHTTEE: East Bay Municipal Utility District(EBMUD)
TEMPORARY RIGHT OF ENTRY
THIS AGREEMENT 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 the EAST BAY MUNICIPAL UTILITY DISTRICT, a public corporation
organized and existing under the laws of the State of California(hereafter"EBMUD").
RECITALS
A. County is the owner of that certain 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. This strip of land is commonly known as the San Ramon Transportation Corridor
(`4SRTC").
B. EBMUD desires to acquire one (1) permanent thirty foot by thirty foot (30' x
30') square subsurface easement (the "Tunnel Easement"), in the form attached hereto as
Exhibit "A" and incorporated herein,below portions of the SRTC to bore a ten foot (10')
diameter 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 one (1) permanent surface easement and one (1)
permanent 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 one (1) temporary construction easement ("TCE")
also included in the form attached hereto as Exhibit "B,"over a portion of the SRTC for the
operation 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
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 a common use agreement with Flood Control,
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in the form attached hereto as Exhibit "C" and incorporated herein, as a condition'precedent to
the exercise by EBMUD of any right granted hereunder.
F. EBMUD and County have mutually selected and EBMUD has hired Burchard &
Rinehart for Roland Burchard, MAI, to appraise the value of the Permanent Easements and the
TCE. County and EBMUD have agreed that the results of Mr. Burchard's appraisal of the
Permanent Easements and the TCE will be binding on the parties. County is willing to grant this
Temporary Right of Entry to EBMUD with the understanding that the rights granted hereunder
are temporary and are conditioned upon the execution and recordation of the Permanent
Easements, which includes the TCE, upon completion of the appraisal described herein, and that
such rights are revocable by County in the event that EBMUD fails to enter into the Permanent
Easements and the TCE on the terms and conditions attached hereto and incorporated herein for
the appraised value as determined by Mr. Burchard.
AGREEMENT
1. PURPOSE: County and EBMUD intend to execute the Tunnel Easement and the South
Broadway Easements, including the TCE, no later than twenty-one (21) days after Roland
Burchard has delivered his appraisal of the easement interests to be conveyed thereunder to both
parties. In order to accommodate EBMUD's need for immediate access to the easement areas
described in Exhibit "A" to each of the Tunnel Easement, South Broadway Easements, and TCE
(hereinafter collectively referred to as the "Property"), County hereby grants EBMUD a non-
exclusive temporary right of entry (hereinafter "Permit") over, across and below the portions of
the Property described in the Tunnel Easement and South Broadway Easements for the purpose
of installing, maintaining and operating the Water Pipeline, and over and across the portion of
the Property described in the TCE for the purpose of operating equipment needed for
construction of the Water Pipeline. Pending completion of the appraisal of the Permanent
Easements and TCE, the parties agree that EBMUD's use of the Property shall be subject to and
in accordance with all of the terms and conditions set forth in the Permanent Easements and the
TCE, which terms and conditions are incorporated herein and expressly made applicable to
EBMUD's temporary use of the Property pursuant to this Permit.
2. EFFECTIVE DATE: This Permit shall not be effective until each of the following
conditions precedent have been satisfied: (i) the governing bodies of County and EBMUD have
approved this Permit; (ii) EBMUD has obtained an encroachment permit from Flood Control for
entry onto the Property; and (iii) EBMUD has executed, acknowledged and delivered to County
a common use agreement in the form attached hereto as Exhibit "C." The "Effective Date" of
this Permit shall be the date this Permit is executed by both parties; provided, however, EBMUD
shall have no right to exercise any of the rights hereunder until EBMUD has obtained an
encroachment permit from Flood Control and delivered to County a fully executed and
acknowledged common use agreement in the form attached hereto as Exhibit "C."
3. TEMPORARY USE: EBMUD hereby acknowledges that County's permission granted
hereunder may be reasonably suspended (i) under conditions reasonably determined by County
to be emergency conditions, (ii) in the event of a material breach by EBMUD of any of the terms
and conditions herein, (iii) in the event that EBMUD fails to execute, acknowledge, and deliver
to County the Permanent Easements and the TCE, and make payment to County in the full
amount of the appraised value of the easement interests at issue, within fifteen (15) days
following completion of the appraisal of the easement interests by Roland Burchard, (iv) in the
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event that EBMUD fails to obtain an encroachment permit from Flood Control prior to
EBMUD's entry onto the Property, or (v) in the event that EBMUD fails to enter into a common
use agreement with Flood Control in substantially the form attached hereto as Exhibit "C" prior
to EBMUD's entry onto the Property. An "emergency„ shall be defined as a situation, which
causes discontinuation of, or immediate threat to, the operation of the EBMUD's Water Pipeline,
or of the operation of Flood Control's Channel, or harm, danger, or inconvenience to the general
public.
4. CONSIDERATION: As consideration for the temporary right of entry granted hereunder,
EBMUD agrees to pay County the fair market rental rate for the Property for the period of time
commencing on the Effective Date of this Permit and ending on the date the Permanent
Easements are recorded. The fair market rental rate shall be determined by Roland Burchard as
part of his appraisal of the easement interests at issue. The parties agree that the fair market
rental rate determined by Mr. Burchard shall be binding on the parties. EBMUD shall deposit
into escrow ("Escrow"), within fifteen (15) days following completion of Mr. Burchard's
appraisal of the Permanent Easements and the TCE, that amount determined by Mr. Burchard to
be the full appraised value for both the Permanent Easements and the TCE. "Escrow" shall be
that escrow account number held by Placer Title Company, 1981 N. Broadway, Walnut
Creek, California. Said full appraisal value amount shall be immediately paid to County upon
the close of Escrow.
5. NO ASSIGNMENT OF PERMIT: EBMUD shall not transfer, apportion, or assign this
Permit without County's prior written consent, which may be withheld in County's sole
discretion, provided, however, that the rights and privileges granted to EBMUD herein may be
exercised by EBMUD's authorized agents and contractors.
6. NO SECONDARY RIGHTS: EBMUD shall not have the right to access portions of the
SRTC on which it does not have property rights. No secondary rights are created or conveyed by
this Permit over any of County's adjacent lands lying outside of the Property.
7. ENTIRE AGREEMENT: This Permit, 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.
8. CONSTRUCTION: This Permit 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 Permit and their
counsel have read and reviewed this Permit 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 Permit.
9. SUCCESSORS AND ASSIGNS: Subject to Section 5. No Assignment of Permit above,
this Permit 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.
10. WAIVER: A waiver of any breach of any covenant or provision in this Permit shall not be
deemed a waiver of any other covenant or provision in this Permit, and no waiver shall be valid
unless in writing and executed by the waiving party.
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11. SEVERABILITY: If any term or provision of this Permit shall, to any extent, be held
invalid or unenforceable, the remainder of this Permit shall not be affected.
12. GOVERNING LAW AND VENUE: This Permit shall be governed by and construed in
accordance with California lave. The venue of any litigation pertaining to this Permit shall be
Contra Costa County, California.
COUNTY: EBMUD:
CONTRA COSTA COUNTY EAST BAY MUNICIPAL UTILITY DISTRICT
By: By:
Maurice M. Shiu, Stephen J. Boeri,
Public Works Director Manager,Real Estate Services
APPROVED AS TO FORM:
By:
Lynelle M. Lewis,
By Secretary of the District
Silvan B. Marchesi,
County Counsel ( )
Date signed by EBMUD
APPROVED AS TO FORM:
By
District Counsel
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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 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 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 foot (10') wide tunnel ("Water Pipeline
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 at least 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 Creek, California, as
more particularly described in Exhibit"A" and shown on Exhibit"B," (Sheets 1-3 of 10123 —G),
and Exhibit "C" (profile and cross 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 11
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__
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 down, constructing, reconstructing,
removing, replacing, repairing, maintaining, operating, and using the Water Pipeline and the
Water Pipeline Tunnel 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 and County have mutually selected, and EBMUD has
hired, Burchard & Rinehart to have Roland Burchard, MAI, appraise the value of the Tunnel
Easement. County and EBMUD have agreed that the results of Mr. Burchard's appraisal of the
Tunnel Easement will be binding on both parties. EBMUD shall deposit into escrow
("Escrow"), within fifteen (15) days following completion of Mr. Burchard's appraisal of the
Tunnel Easement, that amount determined by Mr. Burchard to be the full appraised value for the
Tunnel Easement. "Escrow"shall be that escrow account number held by Placer Title
Company, 1981 N. Broadway, Walnut Creek, California. The full appraised value shall be
immediately paid to County upon County's deposit of the executed Tunnel Easement into
Escrow.
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, 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 other 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 PROPERTY: The primary use ("Primary Use") 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 all existing Primary Uses of the SRTC, and all future Primary Uses by County
and/or Flood Control, their successors or assigns. EBMUD shall not, at any time, obstruct the
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Exhibit "A" 'funnel Easement
SRTC 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.
5. 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 and the Water Pipeline Tunnel described herein, and for no other
purpose without County's prior written consent.
EBMIM shall, prior to any construction, reconstruction, remodeling, or installation
within the Property boundaries, submit specific plans and specifications ("flans 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. EBMUD 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 and the Water Pipeline Tunnel. 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 and the Water
Pipeline Tunnel 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, or the Water Pipeline Tunnel, EBMUD agrees to immediately notify
the County and Flood Control so that the County, Flood Control, 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 or the Water Pipeline Tunnel, County's use of the SRTC, Flood Control's use of the
Channel, or harm, danger, or inconvenience to the general public.
6. 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 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 area lie within the real property described in Exhibit
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Exhibit "A" Tunnel Easement
"A" to the Final Order attached hereto, that a common use agreement between EBMUD and
Flood Control is necessary, and that EBMUD shall be required, as a condition precedent to the
exercise by EBMUD 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.
2) Central Contra Costa Sanitary District. On 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 Tunnel
Easement. A recorded copy of said easement document is attached hereto and made a part
hereof as Exhibit "F." 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 County with 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 Property
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 Property.
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
and Water Pipeline Tunnel.
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_. .. _.
Exhibit ".A" Tunnel Easement
3) When EBMUI) determines to undertake a project which shall necessitate
the removal or relocation of the User's facility within the Property, 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. 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 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.
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
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.
7. FURTHER USE BY COUNTY:
A. EBMLJD understands and agrees that County intends to use portions of the SR.TC
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 any of the
Compatible Uses described below 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 and Water Pipeline Tunnel 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
Water Pipeline or of the Water Pipeline Tunnel: 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
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__
Exhibit "A" Tunnel Easement
canopies, removable noise or retaining walls, embankments, multi-level parking facilities,
buildings, or permanent structures with foundations which are built outside of the boundaries of
the Tunnel 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 "Non-Compatible Uses" for the
purposes of this easement: Multi-level parking facilities and buildings or other structures with
foundations that are built within the boundaries of the Property described herein, and which
would unreasonably interfere with EBMUD's use or protection of its Water Pipeline and/or
Water Pipeline Tunnel. Although it is not the intent of County to locate Non-Compatible Uses
within the boundaries of the Property 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 detailed construction plans and
specifications to EBMUI) 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 for Compatible Uses. If any of such excavations, drilling, pile
driving, blasting, or exploding is related to any of the Compatible Uses described above, then
EBMUD 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 EBMLJD is responsible shall be submitted to County
for an encroachment Permit as required in Section 5. 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 and/or the Water Pipeline Tunnel, but may include
alteration of sub-surface features of the Water Pipeline and/or Water Pipeline Tunnel. In the
event the County determines, in its sole discretion, to construct any of said Non-Compatible uses
within any portion of the Property, 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 and the Water Pipeline Tunnel as reasonably acceptable to EBMUD.
D. In the event that, after the installation of EBMUD's Water Pipeline, EBMUD
determines, in its sole discretion, that the Water Pipeline and/or the Water Pipeline Tunnel 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 and/or the Water Pipeline Tunnel,
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Exhibit "A" 'Tunnel Easement
EBMUD shall only have the right to relocate the Water Pipeline and the Water Pipeline Tunnel
within the boundaries of the Property, and shall have no right herein to relocate the Water
Pipeline and/or the Water Pipeline Tunnel outside of the Property 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)
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 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
perform or complete the work at the expense of EBML D, 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. DAMAGE TO GRANTEE'S FACILITIES: County shall have no responsibility for
the protection, maintenance, damage to, or removal of EBMUI)'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
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
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Exhibit "A" Tunnel Easement
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
EBIVIM'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 costs and expenses in repairing or replacing the
damaged or destroyed portion.
11. INDEMNIFICATION, A -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 EBMZTD'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 sole responsibility of EBMLTD, 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. EBMLTD 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
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
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Exhibit "A" Tunnel Easement
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 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 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
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Exhibit "A" Tunnel Easement
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
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 EBNIUD'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, EBMUD hereby
agrees to provide the 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 prior 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 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.
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 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.
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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
12002.
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 )
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
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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
trSRTC").
B. The Contra Costa County Flood Control and Water Conservation District ("Flood
Control") has condemned an easement 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 one (1) permanent surface easement and one (1) permanent
subsurface easement to install, maintain, and operate one (1) sixty-nine inch (69") wide water
transmission pipeline ("Water Pipeline") and all necessary appurtances. These easements 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
attached hereto 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 SRTC shown on Exhibit"C,"which Exhibit is attached hereto and made a part hereof.
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Exhibit "B" South Broadway Basement
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
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.
2. SUB-SURFACE EASEMENT: The County grants to EBMtJD 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 EBMLJD a
Temporary Construction Easement over and across that certain real property shown in Exhibit
"C" (the"TCE Area"). The TCE herein granted shall include EBMUD'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, and in the event that the TCE
has been recorded, EBMUD shall deliver a quitclaim deed to County for the TCE.
4, CONSIDERATION: EBMUD and County have mutually selected, and EBMUD has
hired, Burchard & Rinehart to have Roland Burchard, MAI, appraise the value of the South
Broadway Easements and the TCE. County and EBMUD have agreed that the results of Mr.
Burchard's appraisal of the South Broadway Easements and the TCE will be binding on both
parties. EBMUD shall deposit into escrow ("Escrow"), within fifteen (15) days following
completion of Mr. Burchard's appraisal of the South Broadway Easements and the TCE, that
amount determined by Mr. Burchard to be the full appraised value for the South Broadway
Easements and the TCE. "Escrow"shall be that escrow account number held by Placer
Title Company, 1981 N. Broadway, Walnut Creek, California. The full appraised value shall be
immediately paid to County upon County's deposit of the executed South Broadway Easement
and Temporary Construction Easement into Escrow.
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
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Exhibit "B" South Broadway Easement
CISRTC"). 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
EBMUD's sole cost 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 all existing Primary Uses of the SRTC, and all future Primary
Uses by County and/or Flood Control, their successors or assigns. 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. EBMUH'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.
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
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Exhibit "B" South Broadway Easement
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
"IST"). 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
Pipeline has been installed, for any maintenance activity, which involves the excavation of, or
interference with, the IHT.
In the event that EBMUD identifies an emergency situation involving EBMUD'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, County's
use of the SRTC, Flood Control's use of the Channel, EBRPD's use of the SRTC, or harm,
danger, or inconvenience 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 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 "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. On 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
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Exhibit "B" South Broadway Easement
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 parry 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) EBMUD's easements described
herein do overlay or overlap Flood Control's or CCCSD's easements, or both, and EBMUD has
entered into said common use agreements with CCCSD and/or Flood Control. In the event that
EBMUD 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 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 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
overlays the South Broadway Easements area 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.
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Exhibit "B" South Broadway Easement
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 mare 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 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 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 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"Non-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
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_.__
_.
Exhibit "B" South Broadway Easement
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. EBMUD
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 7. 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)
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 EBMUI),
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
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Exhibit "B" South Broadway Easement
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
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.
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 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 costs 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
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Exhibit «B» South Broadway Easement
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 EBMLTM'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. EBMLTD 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 TCE
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 WE 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. EBMLTD 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.
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,
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Exhibit "B" South Broadway Easement
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 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.
E. 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 EBMUD 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 Water 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 the 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 34 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.
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Exhibit "B" South Broadway Easement
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 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 EBMLTD to remove the Water
Pipeline, EBMUD 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.
17. 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.
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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
52002.
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 )
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
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Exhibit "C" Common Use Agreement
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
COMMON USE AGREEMENT
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 runs 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 Ramon Transportation Corridor(i`SRTC").
B. 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 acquire one (1) permanent subsurface easement (the "Tunnel
Easement"), in the form attached hereto as Exhibit "A" and incorporated herein,below portions
of the SRTC and Channel to bore an approximately ten foot (10') diameter tunnel("Water
Pipeline Tunnel") within a thirty foot by thirty foot(30' X 30') square easement for the purpose
of installing, maintaining, and operating a sixty-nine inch (69") wide water pipeline (the "Water
Pipeline"), and all necessary appurtenances.
D. EBMUD also desires to acquire one (1) permanent surface easement and one (1)
permanent 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, install, maintain, and operate the Water Pipeline and all necessary appurtenances. The
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Exhibit t(C" Common Use Agreement
Tunnel Easement and the South Broadway Easements are collectively referred to as the
"Permanent Easements."
E. EBMUD also desires to acquire one (1) 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.
F. 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 of Contra
Costa County, pursuant to which a perpetual, non-exclusive easement was condemned to 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 EBMUD 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
Nater Pipeline and/or the Water Pipeline Tunnel in a manner that will not create a public
disturbance, shall not require prior notice to Flood Control. Such written approval, together with
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Exhibit "C" Common Use Agreement
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 and the Water Pipeline Tunnel 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 and/or the Water:Pipeline Tunnel.
4. FLOOD CONTROL'S OPERATION OF CHANNEL: Flood Control shall have the
right to repair, replace, reconstruct, relocate, or perform any other work that Flood Control
deems, in its sole discretion, to be necessary for the operation of the Channel. In the event that
Flood Control 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
(3') 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 (BO) 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
thea determine what measures are reasonably necessary to protect EBMUD's Water Pipeline and
Water Pipeline Tunnel 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 and 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 and the Water
Pipeline Tunnel, but may include alteration of sub-surface features of the Water Pipeline and the
Water Pipeline Tunnel.
In the event that, after the installation of EBMUD's Water Pipeline and the Water
Pipeline Tunnel, EBMUD determines, in its sole discretion, that the Water Pipeline and the
Water Pipeline Tunnel roust 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.
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Exhibit "C" Common Use Agreement
5. DAMAGE TO FLOOD CONTROL'S FACILITIES: Any damage to Flood Control's
facilities caused by EBMUD, its employees, contractors, or agents during construction of the
Water Pipeline and/or the Water Pipeline Tunnel, or at any time thereafter, shall be repaired by
EBMUD under the direction, and to the specifications, 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. 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 EBMUD 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, extensometers placed under the Channel, shows settlement
in excess of three hundred seventy-five one thousandths of an inch (.375") for the conventional
boring (TBM) portion and twenty-six one hundredths of an inch (0.26") for the microtunnel
section, the Channel will be considered to have been damaged, and shall be replaced or repaired
by EBMUD, at its sole cost and expense, to the satisfaction of Flood Control and the United
States Army Corps of Engineers.
6. POST-CONSTRUCTION REPORT: Within forty-five (45) days following
completion of construction of EBMUD's facilities in the Tunnel Easement and South Broadway
area, EBMUD shall prepare a post-construction report describing the tunneling methods and
remedial measures, if any, that were used in the construction and installation of the EBMUD
facilities, and the locations in which the described tunneling methods and remedial measures
were used. The report shall also contain all inspection logs and all settlement data gathered
during the construction of EBMUD's facilities, noting whether any settlement in excess of the
limits set forth in Section 5. Damage to Flood Control's Property has occurred.
7. EMERGENCY SITUATIONS: In the event that EBMUD identifies an emergency
situation involving EBMUD's Water Pipeline and/or its Water Pipeline Tunnel, EBMUD agrees
to immediately notify 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 immediate threat to, the operation of the EBMUD's Water Pipeline and/or
the Water Pipeline Tunnel, or of the operation of Flood Control's Channel, or harm, danger, or
inconvenience to the general public.
8. 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 EBMUD 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
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Exhibit "C" Common Use Agreement
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.
9. 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.
10. 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.
11. CONS'T'RUCTION: 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.
12. SUCCESSORS AND ASSIGNS: Subject to Section 9. 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.
13. WADER: 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.
1.4. 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.
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Exhibit "C" Common Use Agreement
15. GOVERNING LAW AND VENUE: This Agreement shall be governed by and
construed in accordance with California lave. 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_ , 2001
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,
By Secretary of the District
Silvano B. Marchesi, APPROVED AS TO FORM:
County Counsel
By
District Counsel
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