HomeMy WebLinkAboutMINUTES - 10012002 - C.4 TO: BOARD OF SUPERVISORS, as the Governing Body of the Contra Costa Countyfood
Control and Water Conservation District
FROM: MAURICE M. SHIU, CHIEF ENGINEER
DATE: October 1, 2002
SUBJECT: EBMUDfWalnut Creek-San Ramon Valley Improvement Project — Common Use Agreement
for South Broadway and Tunnel Portions, Walnut Creek area. CP#02-46
Project No.: 0678-6X5146
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
APPROVE and AUTHORIZE the Chief Engineer of the Contra Costa County Flood Control and
Water Conservation District (Flood Control), to execute a Common Use Agreement between Flood
Control and the East Bay Municipal Utility District (EBMUD), effective upon the issuance of an
Encroachment Permit from Flood Control to EBMUD related to EBMUD's installation of a 69" water
pipeline in the County's San Ramon Transportation Corridor, Walnut Creek area.
if. Financial }rnna
There will be no financial impact from this action.
Continued can Attachment:_X_ SIGNATURE. S22 Aix
--RECOMMENDATION OF COUNTY ADMINISTRATOR
—RECOMMENDATION OF BOARD COMMITTEE
APPROVE
e--'� HER
• r'
SIGNATURE(S):
ACTION OF BOAi``01ON OCTOBER 01, 200,&PPROVED AS RECOMMENDEDxx OTHER
VOTE OF SUP > 6SORS
xx UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
I hereby certify that this is a true and correct
ORA:eh copy of an action taken and entered on the
C:NGrpOata\RealProp12002-Fiiesl02-9\92602EBMUD Common 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
Flood Control, Dean Eckerson
Steve Boeri, EBMUD
Subject: EBMUD/Walnut Creek-San Ramon Valley Improvement Project ® Common Use Agreement
for South Broadway and Tunnel Portions, Walnut Creek area
Date: October 1, 2002
Page: 2
III. Rsnsqnnc for Rpmammandatinns andBackground:
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. In some locations, the pipeline will be located underneath the concrete
box culvert installed by the Flood Control District resulting in the need for a common use
agreement between EBMUD and Flood Control.
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 Common Use
Agreement. The Board's authorization to execute a Temporary Right of Entry agreement,
easement agreements for the South Broadway and Civic Park to Newell Avenue sections of
EBMUD's project, and a Purchase and Sale Agreement between County and EBMUD, will be the
subject of future Board Orders.
Flood Control is concerned that construction activities performed by EBMUD may cause damage
to Flood Control's facilities in the future in a way that is not foreseeable at this time. Flood Control
and EBMUD both desire to have a clear understanding of each party's responsibility in having
facilities sharing the same right of way. Although EBMUD and Flood Control recognize that it is
difficult to plan in advance for unforeseeable problems, the attached Common Use Agreement
includes provisions for EBMUD to repair, at EBMUD's expense, damage to Flood Control's
facilities caused by EBMUD's activities.
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, nne , _n _ _c of N ;gam ive Ar-ficin:
The Common Use Agreement will not be executed, and Flood Control will not issue an
Encroachment Permit for EBMUD's project.
Common Use Agreement
RECORDING REQUESTED BY
East Bay Municipal Utility District
AND WHEN RECORDED MAIL TO
East Bay Municipal Utility District
P.O. Box 2.4055
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("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
KI-DRA:eh
G:\GrpData\Rea?Prop\EBMUD Pipeline\92602EBMUD CommonUse SoBroadTunnel.doc
Page I of 6
9/26/2002 8:10 AM
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 Carder") 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
Water 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
KI_:DRA:eh
G:\Grp Data\RealPi-op\EBMUD Pipeline\92602EBMUD Common Use SoBroadTunnel.doc
Page 2 of 6
9/26/2002 8:10 AM
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(180) days prior to awarding a contract for construction, submit
detailed construction plans and specifications to EBMUD for all proposed improvements for
EBMUD to review and determine whether such improvements will endanger, damage, and/or
interfere with EBMUD's tunnel located within the Permanent Easement area.
Within sixty (60) days after its receipt of said plans and specifications, EBMUD shall
then determine what measures are reasonably necessary to protect EBMUD's Water Pipeline 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 must be relocated or modified to withstand the effects of the Channel,
then EBMUD shall be solely responsible to perform said relocation or modifications, at
EBMUD's sole cost, expense, and liability.
KUDRA:eh
G:IGrpData\Rea1ProptEBM,UD Pipelinel92602EBMUD COmmonUse SOBroadTunnel.doc
Page 3 of 6
9./26%2002 8:10 AM
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.
b. 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
KL:DRA:ei,
G:\G-pData\Rea1Prop\EBMUD Pipe1ine\92602EBMUD CornmonUse SOBroadTunnel.doc
Page 4 of 6
9/26/2002 8:10 AM
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. CONSTRUCTION: This Agreement shall not be construed as if it had been prepared
by one of the parties, but rather as if both parties have prepared it. The parties to this Agreement
and their counsel have read and reviewed this Agreement and agree that any rule of construction
to the effect that ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement.
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. WAIVER: A waiver of any breach of any covenant or provision in this Agreement shall
not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver
shall be valid unless in writing and executed by the waiving party.
14. SEVERABILITY: If any term or provision of this Agreement shall, to any extent, be
held invalid or unenforceable, the remainder of this Agreement shall not be affected.
Kl-:DRA:eh
G:At,rr.Data\ReaiPi-op\EBIMUD Pipeline\92602BBMUD CommonUse SoBroadTunnei.doe
Page 5 of 6
9/2612002 8:10 AM
Common Use Agreement
15. GOVERNING LAW AND VENUE: This Agreement shall be governed by and
construed in accordance with California law. The venue of any litigation pertaining to this
Agreement shall be Contra Costa County, California.
IN WITNESS WHEREOF, this Common Use Agreement is signed and executed this
day of ) 2002.
FLOOD CONTROL: EBMUD:
CONTRA COSTA COUNTY FLOOD EAST BAY MUNICIPAL UTILITY DISTRICT
CONTROL AND WATER
CONSERVATION DISTRICT
By
Maurice M. Shiu, By:
Chief Engineer Stephen J. Boeri,
Manager, Real Estate Services
APPROVED AS TO FORM: By:
Lynelle M. Lewis,
Secretary of the District
By
Silvano B. Marchesi, APPROVED AS TO FORM:
County Counsel
By
District Counsel
KL:DRA:eh
G:\GrpData\Rea1Prop\EBMUD Pipe1ine\92602ESMUD CommonUse SoBroadTunnel.doe
Page b of b
9/26/2002 8:10 AM