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Home My WebLink AboutMINUTES - 10262004 - C7 TO: BOARD OF SUPERVISORS FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR DATE: OCTOBER 26, 2004 SUBJECT: Second Amendment to Grant of Easement to Extend a Temporary Construction Easement to the East Bay Municipal Utility District (EBMUD) for the South Broadway Portion of EBMUD's Walnut Creek/San Ramon Valley Improvement Project. San Ramon Transportation Corridor. [CP#02-46]. District Ill. Walnut Creek Area. Project No 0678-6G5146 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION 1. RcxcnmM _ndPr1 Actino- APPROVE and AUTHORIZE the extension of the temporary construction easement (TCE) described on the Second Amendment to Grant of Easement (Second Amendment), attached hereto, pursuant to Government Code Section 25526.6, from November 1, 2004 to January 31, 2005, and AUTHORIZE the Public Works Director, or his designee, to execute the Second Amendment, or any monthly holdover thereof, for the above property, on behalf of the County. FIND that the extension of the TCE is in the public interest, and will not substantially conflict or interfere with the County's use of the property. The Real Property Division is DIRECTED to cause said Second Amendment document to be delivered to EBMUD. 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. General Plan Conformance for the entire project has been received from the City of Walnut Creek. Continued on Attachment:"— SIGNATURE: ECOMMI NDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE - PPROVE THER SIGNATURE ACTIONOFBOARbbN OCTOBER 26, 2004 APPROVED AS RECOMMENDED xx OTHER VOTE OF SUPEs /ISORS xx UNANIMOUS(ABSENT NONE 3 AYES; NOES: 1 hereby certify that this is a true and correct ABSENT:—ABSTAIN: copy of an action taken and entered on the minutes of the Board of Supervisors on the DRA:e" G:1GrpData\Rea#F'rop�2004-Fiies\BOS&RES192404EBMUD TCE2ndAmnd brd.doc date shown. Ong.Div: Pubic Works(RIP) OCTOBEt2 26 2004 Contact: Dick R.Awenius(3-2227) ATTESTED:_ 9 cc: County Administrator JOHN SWEETEN, Clerk of the Board of Auditor-Controller(via R./P) Supervisors and County Administrator P.W.Accounting Recorder(via RIP) BY----- ,� Deputy P.W.Board Girders Senior Clerk,Adm, SUBJECT: Second Amendment to Grant of Easement to Extend a Temporary Construction Easement to the East Bay Municipal Utility District (EBMUD) for the South Broadway Portion of EBMUD's Walnut Creek/San Ramon Valley Improvement Project. San Ramon Transportation Corridor. DATE: October 26, 2004 PAGE: 2 11. Firmal 1MpaC EBMUD will pay the County the sum of $58,880.00 for the extension of the TCE from November 1, 2004 to January 31, 2005, and will pay the County the sum of $20,000 per month for any month held over after January 31, 2005. All of the above payments will be deposited into the Southern Pacific Right of Way Special Revenue Fund (138800). 111. Reasons for Racari3inandafiaLIS and Rackgrntind: On January 28, 2003, the Contra Costa County Board of Supervisors approved a Grant of Easement, which included the granting of a surface easement, a sub-surface easement, and a temporary construction easement (TCE) to EBMUD for EBMUD's construction and installation of a 69" water pipeline in the South Broadway area of Walnut Creek. The TCE was amended on April 6, 2004 to extend the term of the TCE to October 31, 2004. EBMUD now desires to extend the term of the TCE from November 1, 2004 to January 31, 2005, with the right to thereafter extend the term on a monthly basis until November 30, 2005. IV. Consequences of Nggative A, _tinct; The Second Amendment to the TCE will not be executed, and County will not receive the above funds. SECOND AMENDMENT TO GRANT OF EASEMENT Effective October 26, 2004, this second amendment ("Second Amendment") amends that certain Grant of Easement ("Easement") entered into 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"), that became effective on January 28, 2003, and was amended previously on April 6,2004. RECITALS A. County and EBMUD entered into the Easement pursuant to which County agreed to grant and EBMUD agreed to acquire: i) a permanent, non-exclusive surface easement, ii) a permanent, non-exclusive sub-surface easement, and iii) a temporary construction easement ("TCE") until January 31, 2004, necessary for the construction and installation of EBMUD's sixty-nine inch (69") waterline in land owned in fee by County, and more particularly described in the Easement. The TCE was previously extended through October 31, 2004. B. At the time County and EBMUD entered in the Easement, County, EBMUD and Contra Costa County Flood Control and Water Conservation District ("Flood Control") entered into a Common Use Agreement that became effective on January 8, 2003, for the protection of Flood Control to the extent that the easements granted to EBMUD under the Easement would overlap or overlay the prior easement condemned to Flood Control, as described in the Common Use Agreement. C. County and EBMUD desire to enter into this Second Amendment to: i) extend the term of the TCE and ii) confirm that the obligations of EBMUD under the Common Use Agreement with respect to the TCE remaining in full force and effect during the extended term of the TCE, as more particularly described in this Second Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the Easement as follows: I. Definitions. Except as otherwise defined herein, capitalized terms used but not otherwise defined herein are used as defined in the Easement. From and after the effective date of this Second Amendment, all references in the Easement to "this Grant of Easement" (or words or phrases of a similar meaning) shall be deemed references to the Easement as amended hereby, unless the context otherwise specifically requires. 2. Specific Amendment to the Easement. Section 3. Temporary_Construction Easement, is hereby deleted in its entirety, and replaced with the following Section 3: 1 C:\Documents and Settings\rawenius\Local Settings\Temporary lntemet Files\0LK1B\101104EBMUD TCEExtension.doc 10/04104 3. TEMPORARY CONSTRUCTION EASEMENT: County hereby grants to EBMUD a Temporary Construction Easement over and across that certain real property shown in Exhibit "C" (the "TCE Area"). The TCE herein granted shall include 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 automatically terminate in its entirety and become null and void on January 31, 2005, however, beginning February 1, 2005, and only upon the mutual written consent of the parties hereto, and EBMU`7's prior payment to County of the monthly Holdover Fee described in Section 4. Consideration for the Second Amendment of the Second amendment to Grant of Easement, the TCE shall be held over on a month-to-month basis, but in no event shall the TCE be extended beyond November 30, 2005. Each month during the holdover period shall be referred to as a"Holdover Month." In order to hold the TCE over to a Holdover Month, EBMUD must submit a written request to County to so holdover the TCE no fewer than five (5) business days prior to either February 1, 2005, or to the end of any Holdover 'Month. In the event that such a written request is not submitted by EBMUD to County within the five- business-day period just described, the TCE shall be deemed to be terminated and shall become null and void and of no further force or effect. In the event the TCE is so held over to a Holdover Month, the TCE may be terminated upon the mutual written consent of the parties hereto. Upon receipt of the notice terminating the TCE during the Holdover Month, or on November 30, 2005, whichever comes first, the TCE shall automatically terminate in its entirety and become null and void and of no further force or effect. 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. 3. Continuation of EBMUD's Obligations under the Common Use Agreement EBMUD hereby acknowledges and agrees that it will be bound by all of the terms and conditions of the Common Use Agreement with respect to the TCE during the entire term of the TCE, as extended by this Second Amendment, and the Common Use Agreement is hereby ratified and confirmed in all respects. 4. Consideration for the Second Amendment of the Easement. As consideration for this Second Amendment extending the term of the TCE, EBMUD shall, and hereby agrees to, pay to County the sum of Fifty Eight Thousand Eight Hundred Eighty and No/100 Dollars ($58,880.00) on or before October 26, 2004. In the event the TCE is held over to a Holdover Month, as described in the Second Amendment to Grant of Easement, EBMUD shall pay to County the sum of Twenty Thousand and No/100 Dollars 2 CADocuments and Settings\sboeri\Local Settings\Temporary Internet Files\OLKA36\101104EBMUD TCEExtension.doc 10/04/04 __. ----._ ................................................................................................................................................ ............................................................................................................................................................................................................................................................................................................................ .............................................................................................................. .......... .......................... .......... .. ................. _ _ _. __ ($20,000.00), without proration per day, prior to the beginning of each Holdover Month, until the TCE is terminated by mutual written consent of the parties hereto, or November 30, 2005,whichever comes first. 5. No Other Amendments or Modifications. Except as expressly amended pursuant to this Agreement, all other provisions of the Easement are unaffected, remain in full force and effect with no other amendments or modifications, and are ratified and confirmed in all respects. 6. Representations. The parties hereto have entered into this Second Amendment based solely upon the representations, covenants, and warranties contained and referred to herein. No party has placed any reliance on any representation not expressed or referred to in this Second Amendment. 7. Voluntary Execution of Amendment. The parties hereto have freely and voluntarily executed this Second Amendment and are not acting under coercion, duress, menace, economic compulsion, or because of any supposed disparity of bargaining power, rather, the parties hereto are freely and voluntarily signing this Second Amendment for their own benefit. 8. Representation by Counsel. The parties hereto each acknowledge that they have been represented in the negotiations for, and in the preparation of, this Second Amendment by counsel of their choosing; that they have read this Second Amendment or have had it read to them by their counsel; and that they are fully aware of and understand its contents and its legal effect. Accordingly, this Second Amendment will not be construed against any party, and the usual rule of construction that an agreement is construed against the party that drafted it will not apply. 9. Aprrroval and Effective Date. This Second Amendment is subject to approval by the County Board of Supervisors, and will be effective on the date approved by the County Board of Supervisors. 3 CADocuments and Settings\sboeflTocal Settings\Temporary Intemet Files\OLKA36\1 01 104EBMUD TCEExtension.doc 10104/04 10. Governing Law and Venue. This Second Amendment will be governed and construed in accordance with California law. The venue of any litigation pertaining to this Second Amendment will be Contra Costa County, California. CONTRA COSTA COUNTY �- - EBMUD EAST BAY MUNICIPAL UTILITY DISTRICT By Maurice l4. Shiu, Public Works Director Z) zB s Y Date: / f Stephe J. Boeri, (Date of County Board approval) Manager, Real Estate Services RECOMMENTDED FOR AP OVAL: Byc -F t Lynelle M. Lewis, Secretary of the District Dick R. Awenius, Senior Real Property Agent Date: / zv^ (Date of EBMUD Board approval) By wren A. Las APPROVED AS TO FORM: Principal Real Property Agent R BY 76 , 1 Veronica Fauntleroy, Office of General Counspf APPROVED AS TO FORM: Silvan B. Marchesi, County Counsel f � BY / Pamela J. Za' Deputy County Counsel 4 CADocuments and Sett;ngs\shoeri\Local Settings\Temporary Internet Files\OLKA36\101 104EBMUD TCEExtension.doc i 0/04/04 ............................................................................................................................................................................................................................................................................................................................ ;003616 *AIRF IT m6Bl .SAVE '�4E., WALNUT CREEK AVE WA?� DR UR*0 MURWpOD UDCR R R p RC Y14�CrrCF1 AL��E j � Ay INE i/ 1_YfA 21 ^P ('40 SCALE) Irc', Y` B bW9 OR 93 ``•.`COfr 49'7'M 19 ;ruxci.n` ff 1 SPA 1. THIS DRAWING IS NOT BASED ON AN E.B.M.U,D. a`:ti r� ,�hr l;•: SURVEY, xm so REFERENCE: 1. RECORD OF SURVEY RS 2090 1106 LSM 4 1. 17 AL At.ALA E$:. M GH SOHOOL DIR— F Z /4° a i ZANDVAX41 m '5J7-0 b,R_art.' Ls 200 0!F;,r.5 ,�, -." "•T .". ......... 200 400 600 FT SCALE r' • 200' w w EAST BAY MUNICIPAL UTILITY DISTRICT w OAKLAND,CALIFORNIA RIGHT OF WAY z a WALNUT CREEK-SAN RAMON VA LE'Y Ni :, cHou TRANSMISSION IMPROVEMENT PROJECT �.I .. MAKADEGA14A EMIR` A �i Yp. �? 5MUC[WE.M➢J.CaaE. I Yqh Ot= 200 SK-5 r y 5 O SCKE 1"= 20G• 9h$�b6•Ac x airs &-flEi--z�gBt 6-2$-02 SHEET F OF 1 10036t6 1551 B 504