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HomeMy WebLinkAboutRESOLUTIONS - 01012003 - 2003-046 THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY, CALIFORNIA Adopted this Resolution on January 28, 2003, by the following vote: AYES: SUPERVISORS GIOIA, UII,KEMA, GERBER, GLOVER AND DESAULNIER NOES: NONE ABSENT: NONE RESOLUTION NO. 2003! 46 (Gov. Code § 25528.8) SUBJECT: ADOPT Resolution No. 2003! 46 approving the conveyance of easements and the execution of a Real Property Sales Agreement to the East Bay Municipal Utility District (EBMUD) for EBMUD's Walnut Creek/San Ramon Valley Improvement Project. San Ramon Transportation Corridor. [CP#02-46] Project No 0878-6G5146 Walnut Creek Area The Board of Supervisors of Contra Costa County RESOLVES THAT: Contra Costa County acquired certain real property by deed recorded on December 3, 1985, Book 12652 at page 570, in Walnut Creek for transportation purposes. EBMUD has requested surface and subsurface easements over a portion of said property, described in Exhibits "A" and "B," and a temporary construction easement described on Exhibit "C," all of which exhibits are attached hereto for the installation of a 69"water pipeline. This Board FINDS that the conveyance of such easements is in the public interest and will not substantially conflict or interfere with the County's use of the property. This Board hereby APPROVES and AUTHORIZES the conveyance of permanent surface and subsurface easements to EBMUD over the property described in Exhibits"A"and"B,"and a temporary construction easement described on Exhibit "C," all of which exhibits are attached hereto, pursuant to Government Code Section 25526.6, and the Board Chair is hereby AUTHORIZED to execute easement documents and the Public Works Director,or his designee, is AUTHORIZED to execute a Real Property Sales Agreement for the above property, each on behalf of the County in consideration for the payment by EBMUD in the amount of $1,088,000.00, received in full by County, plus the sum of$4,532.00, plus the sum of$622.00 per day for the period beginning January 9, 2003 and ending on either January 31,2003,or the day that the escrow accounts for all of the above easements have been closed, inclusive, whichever occurs first. KL:DRA:eh G:\RealProp12003-Files\BOs&RES110903EBMUD EaseRPSales res. i hereby certify that this is a true and correct Ortg.Dept.: Public Warks(RIP) copy of an action taken and entered on the Contact: Dick R.Awenlus(313-2227) minutes of the Board of Supervisors on the cc: Public works Accounting date shown. Public Works Records T.Torres,PW Env.Svcs. A17ESTED: JANUARY 28, 2003 Recorder(via RIP) JOHN SWEETEN,Clerk of the Board of K.Plana,CDD Supervisors and County Administrator Board Orders Senior clerk,Adm. E.Hartrnan,RIP Steve Boeri,EBMUD,Grantee By ,Deputy RESOLUTION NO. 20031 46 Subject: ADOPT Resolution No. 2003/ 46 approving the conveyance of easements and the execution of a Real Property Sales Agreement to the East Bay Municipal Utility District (EBMUD) for EBMUD's Walnut Creek/San Ramon Valley Improvement Project. Date: January 28, 2003 Page: 2 The County's Auditor-Controller is hereby AUTHORIZED to pay the sum of$9,750.00 to EBMUD as payment for County's share of appraisal services provided by Burchard&Rinehart to determine compensation for the above easements. The Real Property Division is DIRECTED to cause said easement documents and Real Property Sales Agreement 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. RESOLUTION NO. 20031 46 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 28th day of January , 2003, 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 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." Page 1 of 13 KL:DRA:eh G:1GrpData\Rea1Prop\EBMUD Pipeline\10603EBMUD SoBroadEase.doc 1/712003 10:11 AM EBMUD County South Broadway Basement 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. AGREEMENT i. 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" and shown on Exhibit "B," 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 EBMLTD'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 EBMUD a non-exclusive "Sub- Surface Easement," as particularly described in Exhibit "A" and shown on Exhibit `B"hereto, 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 EBMLTD shall enjoy full use of the Sub-Surface Easement, subject to the limitations of this Grant of Easement. 3. TEMPORARY CONSTRUCTION EASEMENT. County hereby grants to EBMUD a Temporary Construction Easement over and across that certain real property described and 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 ControI's Encroachment Permit"). The TCE shall commence on February 1, 2003, and shall automatically terminate in its entirety and become null and void on January 31, 2004. 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: EBMLJD 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 thirty (30) 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 615-5311 held by Placer Title Company, 1981 N. Broadway, Walnut Creek, California. The full appraised value Page 2 of 13 KL:DRA:eh G:\GtpData\RealProp\EBMUD Pipeline\10603E3MUD 5oBroadEase.doc InI2003 10:11 AM EBN" County South Broadway Easement 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 he within the boundaries of land more commonly known as the San Ramon Transportation Corridor ("SRTC'). Said SRTC land is owned in fee title by County. EBMUD hereby acknowledges County's title to the Property and TCE Area and agrees never to assail or resist said title. This Grant of Easement is subject and subordinate to all existing rights, rights of way, licenses, reservations, franchises and easements of record, that would be evident from a physical inspection or accurate survey of the Property and TCE Area, except that License Agreement, including all amendments, between Contra Costa County and the East Bay Regional Parks District to which EBMUD shall not be subject or subordinate. It shall be EBMUD's sole responsibility, obligation, and liability to determine if any other facilities have been so located within or near the Property and TCE Area boundaries. EBMUD agrees to take all precautions required to avoid damage to the facilities of the existing users. If EBMUD damages the facilities or improvements of any existing user, EBNIUD 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. EDNIUD'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. Page 3 of 13 KL:DRA:eh G;\GrpData\ReaIProp\EBMUD P*Iine\l 0603EBMUD SoBroaffase.doc 1/7/2003 10:11 AM EBMUD County_�% South Broadway Easement 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 (IPlans 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 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 "IM"). 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 EBMLTD'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 EBMLJD'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 extreme 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 "N' 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 Page 4 of 13 KL:DRA:eb GAGrpData\Rea1PropTBMUD Pipeline\10603EBMUD SoBmadEasc.doc 1/7/2003 10:11 AM EBMUD CountyW South Broadway Easement 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 "E" and incorporated herein, 2) Central Contra Costa Sanitary District. On December 16, 1986, the Central Contra Costa Sanitary District (11CCCSDII) 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 'T." Section 3. of that document states that in the event that County conveys an easement to any third party(a"user") which easement area "overlap or overlays"the areas of CCCSD's sub-surface facility easements, then that third party shall enter into a common use agreement with CCCSD, and that common use agreement shall include specific language shown in that document attached hereto. B. Written Evidence. As a condition precedent to the exercise of EBMUD's rights hereunder, EBMUD shall provide written evidence, signed by CCCSD or by Flood Control, as appropriate, that 1) EBMUD's easements described herein do not overlay or overlap either CCCSD's or Flood Control's easements, or, in the alternative, 2) 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 Page 5 of 13 KL:DRA:eh G:\GrpData\ReaIProp\EBMUD Pipeline\10603EBMUD SoBroadEasc.doc 1/7/2003 10:11 AM EBMUD6 County South Broadway Easement so. The EBMUD shall, and County may, review and comment on the plan within thirty (30) calendar days of its receipt. The User shall modify the plan to incorporate EBMUD's and County's comments, if any, and resubmit the plan for EBMUD's and County's written approval. The written approval by EBMUD shall not be unreasonably withheld. C) Any damage done to EBMUD's facilities by the User shall be repaired by EBMUD and the User shall pay for all costs. The User shall provide a bond or other surety acceptable to EBMUD on or before the execution of the common use agreement by EBMUD, in a sufficient amount to EBMUD which amount shall be determined by EBMUD as a guarantee that the User shall remove or relocate its facilities upon notification to do so by EBMUD. d) The User shall defend, indemnify, save and hold harmless the County and EBMUD and its officers and employees from any and all claims, costs and liabilities for any damages, injury or death arising from or connected with the performance hereof, due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of the User or any other person under its control, including but not limited to liability arising from injury or death to members of the public using the property described in the subsequent easement, save and except claims or litigation arising through the sole negligence or willful misconduct of EBMUD, and shall make good to and reimburse EBMUD or County, as the case may be, for any expenditures, including reasonable attorney's fees, EBMUD or County may make by reason of such matters. The User further agrees to assume all joint and several liability for tort actions to the extent such liability exceeds the actual percentage of fault attributable to the actions of EBMUD and its officers and employees. 9. FURTHER USE BY COUNTY: A. EBMUD understands and agrees that County intends to use portions of the SRTC for the construction, installation, and operation of a Transit System, or other uses, and that such uses may require the County's use of portions of the Property and TCE Area, County agrees that it will attempt not to use portions of the Property and TCE Area that will limit or impede EBMUD's access to the Water Pipeline, however, County shall specifically have the right to construct 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 Page 6'of 13 KL:DRA:eh GAGrpData\ReaIProp\EBMUD Pipelinc110603EBMUD SoBroadEase.doc 11712003 10:11 AM EBMUD. CountyD?4 South Broadway Easement 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 (F) without first having the written consent of EBMLTD, which consent shall not be unreasonably withheld), and other permanent structures with foundations that are built within the boundaries of the Surface Access Easement described in Exhibit "A" herein, and which would reasonably interfere with EBMUD's use of its Water Pipeline and/or prevent EBMUD's reasonable access to the Water Pipeline for maintenance and repair purposes. Although it is not the intent of County to locate Non-Compatible Uses within ten feet (10') from the centerline of the Surface Access Easement described herein, County shall not be prevented from doing so. C. Not less than one hundred eighty (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 "A" Page 7 of 13 KL:DRA:eh G:\GtpDatiaeaIProp\EBMUD Pipelinc\10603EBMUD SoBroadFwe.doc InI2003 10:11 AM EBMUD Countilm South Broadway Easement 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 EBMUD, which expense EBMUD agrees to pay to County promptly upon demand, including but not limited to, engineering costs and any legal expenses incurred to collect such costs. 10. RESTORATION OF PROPERTY: The EBMUD agrees that upon the completion of any of its works described in the Plans and Specifications referred to herein, it will restore the Property and TCE Area as provided in said Plans and Specifications. Upon the completion of any of EBMUD's work after the installation of the Water Pipeline has been completed, EBMUD will restore as near as possible the surface of the ground to the condition it was in just prior to the commencement of said work including, but not limited to, the replacement of all paving, landscaping, fixtures, and improvements, all at EBMUD's sole cost and expense. 11. DAMAGE TO COUNTY PROPERTY: Any and all County property, facilities, landscaping, or other improvements, removed or damaged as a result of the use of, or access to, the Property and TCE Area by EBMUD, or any other person or entity acting under EBMUD's direction or control, shall, at County's sole discretion and direction, be repaired or replaced by County, with all costs and expenses incurred by County to be paid by EBMUD within forty-five (45) days after receiving an invoice from County (including but not limited to engineering costs and legal costs of collecting any unpaid expenses), or, in the alternative, and only with County's prior written consent, said property, facilities,landscaping, or other improvements so damaged or removed, shall be repaired or replaced by EBMUD, at the sole cost and expense of EBMUD, to a condition that is equivalent to or better than their condition existing just prior to its damage or removal. In the event that EBMUD fails to commence the required work within thirty(30) days after being directed to do so by County, or such reasonable extension as County may agree to in writing, or fails to complete the required work within a reasonable time thereafter, County may perform or complete the work at the expense of EBNIUD, 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 Page 8 of 13 KL:DRA:eh GAGrpData\ReaIProp\EBMUD Pipeline\l 0603EBMUD SoBroadEase.doc IM2003 10:11 AM EBMUD County]2A South Broadway Easement 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 EBMLTD'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 EBNRM 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, EBMLJD shall be responsible for any and all injury to the public, to persons and to property arising out of or connected with EBMUD's use of the Property and TCE Area. EBMLTD shall indemnify, defend, save, protect and hold harmless, County, its officers, agents, employees and contractors from and against any and all threatened or actual loss, damage (including foreseeable and unforeseeable consequential damages), liability, claims, suits, demands, judgments, orders, costs, fines, penalties or expense, of whatever character, including, but not limited to, those relating to inverse condemnation, and including attorneys' fees, (hereinafter collectively referred to as "Liabilities") to persons or property, direct or consequential, directly or indirectly contributed to or caused by EBMUD's operations, acts or omissions pursuant to this Grant of Easement, or EBMUD's use of the easements, save and except Liabilities arising through the sole negligence or sole willful misconduct of the County, its officers or employees. B. EBMUD further agrees to defend, indemnify, save, protect and hold harmless, County from any and all actual or threatened claims, costs, actions or proceedings to attack, set aside, void, abrogate or annul this Grant of Easement or any act or approval of County related thereto. C. EBMUD accepts the Property and TCE Area in an "as is"physical condition,with no warranty, guarantee, representation or liability, express or implied on the part of the County as to any matter, including, but not limited to the physical condition of the Property and 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, Page 9 of 13 KL:DRA:eh GAGrpData\Rea1Prop\EBMUD Pipeline\10603EBMUD SoBroadEase.doc M12003 10:11 AM EBMUD O County'IV r"— South Broadway Easement geologic, environmental and seismic conditions of the Property and TCE Area for the intended use contemplated herein, and to determine and comply with all building, planning and zoning regulations relative to the Property and TCE Area and the uses to which it can be put. EBMUD relies solely on EBMUD's own judgment, experience and investigations as to the present and future condition of the Property and TCE Area or its suitability for EBMUD's intended use and is not relying in any manner on any representation or warranty by County. EBN4LJD 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, 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) Page 10 of 13 KL:DRA:eh GAGrpDsta\Rea]Prop\EBMUD Pipeline\10603EBMUD SolltoadEase.doc 1/7/200310:11 AM EBMUD County-P&4 South Broadway Easement 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 Five Hundred Sixteen Thousand and No/100 Dollars ($516,000.00) as compensation for EBMUD's quitclaiming the Property. In the event that EBMLJD 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 thirty (30) days following delivery shall be construed as confirmation of Installation Abandonment. Upon confirmation of Installation Abandonment by EBMUD, EBMLJD shall deliver a quitclaim deed ("Quitclaim Deed") to County for that portion of the easement so abandoned. Upon delivery of said Quitclaim Deed, all rights of EBMUD in and to said Property and TCE Area shall thereupon cease and terminate, and shall revert to and vest in County, or its successors. In the event of Installation Abandonment, County shall have the right, in its sole discretion, to require EBMUD, at EBMUD's sole cost and expense, to remove the Water Pipeline from the Property, and to return the Property and TCE Area to a neat and clean condition. In the event that County requires 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 Five Hundred Sixteen Thousand and No/100 Dollars ($516,000.00). In the event that County does not require EBMUD to remove the Water Pipeline, EBNfLJD 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. Page 11 of 13 KL:DRA:eb GAGrpData\Rft1Prop\EBMUD Piptfine\10603EBMUD SoBroadEase.doc 1/7/2003 10:11 AM EBMUD County ,& South Broadway Easement 19. CONSTRUCTION: This Grant of Easement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. The parties to this Grant of Easement and their counsel have read and reviewed this Grant of Easement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Grant of Easement. 20. SUCCESSORS AND ASSIGNS: This indenture and all of the covenants herein contained shall inure to the benefit of and be binding upon the permitted successors and assigns of the respective parties hereto. 21. WAIVER: A waiver of any breach of any covenant or provision in this Grant of Easement shall not be deemed a waiver of any other covenant or provision in this Grant of Easement, and no waiver shall be valid unless in writing and executed by the waiving party. 22. 'SEVERABILITY: If any term or provision of this Grant of Easement shall, to any extent, be held invalid or unenforceable, the remainder of this Grant of Easement shall not be affected. Page 12 of 13 KL:DRA:eh GAGrPData\Rea1Prop\EBMUD Pipelinc\10603EBMUD SoBroad&se.doc 1/7/2003 10:11 AM EBNWD County—L& 7—r— .i ggj _ _ liipraurFdr.wra.0ry MR, tN f N. PARCFL FIFTY-NINE A • :5A Portion of the 100 feet in width strip of land described in the deed from William Lynch to Southern Pacific Railroad Company# a California `,} Corporation. recorded Juno 10# 1891, in Book 60 of Deeds, page 149# • Gxi described as followss f�6 `• ti •r. 1 ti A strip of land 3.00 feet in width# the centerline of which is parallel and concentric with and 1.50 feet westerly measured at right angles and ,+ radially from the centerline of said Southern Pacific Railroad Company :t 100 feet in width strip of land (60 Deeds 149). Thu northwestern and southeastern terminus of said 3.00 foot in width strip of land shall coincide with the northwestern and southeastern termtinus# respectively# of said Southern Pacific Railroad Company 100 feet in width strip of land {60 Deeds 149). , S Wn,{T,tit r3':#wry 'f}1 �i p . • r' y� / .g�� A '7 r• y ��%k ?� '�: }..�;:�ti:`c4��rr,,i, '�. •,�.,,t•,.,� �}p.,y�„�...; t r } #`+�,q�Y,�r .{ •R •�y� � .�g"�z��., 5j�„� '��d q f,�1 y'i1.,rY}if�ay�rfy:Y+('iyR!-d/SC'i}''' �S{,i�,�f`.��w�+++VVV 12 rfsn p VIA” r a 'S� .Y�.��+o✓' � N��,S��ti'.% ,''ytA'`',;Y'�''ri.�`,��y',?,,, •v�;7,�+�, 5�' .1 ; 7 r�,.,!J„d;.,�t•c' r��i.,` ; �}"',+car .....�.� .. ,.. .•j � Rr V �.a �r#. 4,.,.,:4.w.,w^bi,>'•�MSt�rtlM..;w.i. "•"�w •� 1 j r .•t i ^ it PARCEL SIXTY-ONE ,. Portion of the 100 feet in width strip of land described in the deed from Family Investment Ccmpanyi a corporation to Southern Pacific Railroads Company, a California Corporation, recorded July 11, 1907# in Book 126 of Deeds, page 424, described as followsx ' tQ0 a. A strip of land 12.00 feet in width, the centerline of which is E• described as follorss +t r� ' Beginning at a point on the northwestern terminus of said Southern : • Pacific Railroad Ccmpany 100 feet in width strip of land (126 Deeds 424), where said northwestern terminus of said Southern Pacific t yE ' Railroad Company 100 feet in width strip of land (126 Deeds 424) TO A intersects a line which is parallel with and 45.50 feet southwest of � lJ, t,t the northeastern line of said Southern Pacific Railroad Company 100 p Y ". ..+ `p F. feet In width strip of land (126 Deeds 424); thence from said point of beginning southeasterly 35 .00 feet, more or less# to a point on } a line which is parallel with and 60.00 feet southwest of the 2,A• northeastern line of said Southern Pacific Railroad Company 100 feet C; in width strip of land (125 Deeds 424). ; ' The southeastern terminus of said 12.00 feet in width strip of land Mall coincide with a line which is parallel with and 335.00 feet . southeast of the northwestern terminus of said Southern Pacific , . Railroad Company 100 feet in width strip'of land (126 Deeds 424). b. A strip of land 12.00 feet in width# the centerline of which is described as follows ,r r fir '"^ "'� 97 ryv, f`o'il,t yt P a �:;?a' Yi .„i'a•'"t:tfiS1^� yy t,” a "a a ;q:`�i^ .`Jr a 7t�.1`" +�" ,�' # ��y lTlj�w w • �5 '.���>t:'y I�fi ^ ,g�'dip1'IW`LX�� 1Z'! r #�r �r�� Lir+i'�^ ��1 ,"�" 'a; .'s:� 3�{ .r l ',��f ��r��"2�'�°'�^y}1'�''"�'i�¢'w'i+F���}f+ v i ����• 1 v �� d �' •e��tra t �;'+�• ^M h rF+�+. ^it''�'. a,;/� t �w,. ��i ^ 'tr F S C;."N {i , r t f f 4 7�t•��•l�it1 �dJ r���fi�N• � � � i� 1 +f' ,+ I S � � ^ref Jt, :r tar`�� �'1 ^« �' .��' �}�,nf�r ...,.•,'�r �' t.'!+', �. �+�JJ ; 'rt`•. r/: l�'r° JJ'R.f 4� '���, Y.�+',t, E a�_(�J+�r.P}���~ 1 J �� ,{d � ,;�?a' '�wa:,� #�"ra ' 9 , +i3Y'r�7}(°t•6::^4��rrif ''�r'v.,"w''`9'µri 9�p� i `r t„,�.•�/ 6,E �;� /x, Vis^ r!'�, t7 •`'�`�S }�r,�»J X.�IsY�!";�.�}) �V,r'+ttt !' "� t ;. fi^ '1. i}",%c,:��r"*�/ •.ra�1 r' .� r},}�, ;yy.r .rK°...�i'it J9ja,+• '�• r.lfJ)�; yyy i p•oil +f 1; ✓ � ��j.1{''yjlti;th�" y• ".�,'�'��"nl l^�i t,",. •+{•�.h?Y?EJ^;tA,'fE,'''^.:�sw'. ..,�'..,'. ., .J'+i'�1>;:}G; J= r,.^F�,.dt;'r'� ,d�.l.t E�A;"'b;`+'.w;f#.:!" „Y;r1+', J�r*1 ,Y�f. i + . .. ^ + 'n .E. r r PARCEL SIXTY-CNE (Continued) Beginning at a point on a line which is pa.allel with and 335.00 fest southeast of the northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424), at its Intersection with a line which -is .parallel with and 60.00 feet LAI southwest of the northeastern line of said Southern Pacific Railroad Compahy 100 feet i'n width strip of land {126 deeds 4201 thence from :4. said point of beginning southeasterly 381.00 feet, more or less, to AL3 the point of intersection with a line which is parallel with and 78.00 feet southwest of the northeastern line of said Southern Pacific Railroad Company 100 feet, in width strip of land (126 Deeds ?7 • :r 424) with a line which Is.:parallel with and 715.00 feet southeast of the northwest terminus of said Southern Pacific Railroad strip (126 Deeds 424). • f The southeastern terminus of said 12.00 feet in width strip of land shall coincide with a line which is parallel with and 715.00 feet southeast of the northwestern terminus of said Southern Pacific Railroad Company 100 feet 1n width strip of land (126 Deeds 424). C& A strip of land 12.00 feet in width, the centerline of which is parallel with and 28.00 feet southwesterly measured at right angles a from the centerline of said Southern Pacific Railroad Company 100 Y feet in width strip of land (126 Deeds 424). The northwestern terminus of said 12.00 feet in width strip of land shall coincide with a line parallel with and 715.00 feet 3 • 1ryM V •} i••.•+ 1 •r r..(`r !+v v t:.." 4'v xi •r+'ar�rt 1.7t;..y7 .rt.',='l„',%.t.v.rsiX�yJ{ r r y, a };„ r .Y'•. ,•y ,1r,�,'iJ' 1{ ! � li;'�{,'''f7i t � i �J a n`+} W t'..Jy';"• y; � trµcl,}d.' +�r f iG !. }'y•�Y+;. rr r '�v, 1 �j „h ..��+•�„{+” 4:�;�;4b.,T.'�7..i'af5”iJ���t �b?n }'+•a��)} x,••.a.f,{L,.,tt1,a,N•i:. ! .+a j• circ '}'{r{,p��4K ,,yyam�`' ! tit rr. + �, 4!� +;i,/Ll��t t9 �� • pp s a .c ,. %�� dj1+(: }i'$•+I� y v��"y•rr fs�' %tt�,�;tt y�'XL,. 6,,Y{'' Yt�:ti Sit.�1 .�� �'rS'rM .ti p rj La�tr. 1.tiy!!y T'��} ti•. 'f•'f!r't���;�r, �� ,4'`"rX`..�.'Y'yY+'r ��'. 3 f �;l�ry'• '4� r '.� � 4 �.,•."V{amu r ++3 '. y ' +''it''�/•f '!•'r ++t a w ,+ '4r. iY l a � •''� 1 i � ix j!t• s('b}j ,�r`V'r;".y.al.i;/' J:�,Y ''i a i, �t 'ft�t; ri,yC�PtY'i ' xa {1t .� �� � •�r'{Z'f �7 J�y,'y'�}� L.X^i;44"�� �a'�� !{ OY� nl Xf�l ll 4,. . .a "!l Yl.�d �Y V }"�'e�,// 7 S !l ,1 1 1'}� '� �� �1tir .y"'•y1X: t; �,�'•" ,t fl.+a •'.r..'�.'�`"Y.9' r ` � r�.% ./i r,y:r t•��'�' L.#i •'N•{,' '+ •i'",'4+ ,}�y�/'i w•�•,1"rltigt7.,j 1s•4{•`t'�`�,.yk,.'.`,tk` r t� r }• t ry ,.,f}jy�,y'.�-' 'fY"�"�'�F !• •1l i'N17i�/ v,..:a'} ( '•4r^T` t)! ° ,Y. # }i,� J4 +• � '�� it �� +'` � •£K�' •�'4Sw`'*4•'r' %ti;���a'.1•;,yi °4 i'ti�J �.ej��yr�j�� rA�"js 8{� r�Y.• �� "� I ,�p','.�.,r#r��{{I:A-ia'yt t�;j""gA��i#N���� �•, r r t.'N`!1. �Li !w a 1 '�, r. r.X(' tr I�'r,�}�. '1: +.J+�} •! r•`' +�*' 'i r S F �.. ,t�!••,.�;* !. `, {. ,,r^�i.r s �� ^`•�*%4�i ',tC�.t"+ri7wr.`.. ,i,}y'�, ' A�+J r ' •4,i .!•����!Xj�Y�><i(!y+';t'`.t:��^� i'qn •�F'�,j ,. , a,a• t. Y4. PARCEL SlXrY-CNE (Continued) ?V southeasterlyofnorthwesternofsaiw Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424)v and thi southern terminus of said 12.00 foot in width strip of shall be on Oo southeast terminus of said Southern Pacific Railroad • t Company f width M f ♦f Deeds Ar V tv A 4 i r R s L i f '4 A t• r �k p 7 t 4 A :j 3 t i } a w7 j �i r t r A� �,• ft tt;..A�ey(Sf f� � � �#S' r�f �t,�s j •• � •" �+ �`� +t"�'n/�+t#j[t���,hp�� E�+ �x '",�j�.J4,F"y� �r,��D'i aA�y+ V�?r `' .,,�+ '�� +4 'k1! #•'jt '�� '� �dCl,i` � r t� Td� �.. t. %iii 'ij��7"'�+ fr � ��1 I r!.i,'�!, t�1`i.. h jA =t#t t'� {� �r-• 2 Y R U � �' �'Ys t,�A.f.4� . �� F r,"tr 'q�°rJ��''� _A' ^1' L yv .f. t •k, �". x,41 � i�<s �f` ,r. ��" ��`4 � 1F i�y�s �� �}yr,rf � 1 �t � �' ',, ���. ���� t �j'�� ��' � ;k'd��h �wi,{�t��f5't:9'"�sap �}.�t1•�i+"' + �,>°�4-a t'Jlo'v ,j•.;t�#/ t n;�i"tyy r lT` 'f' � *+ 2e,•�..{,,,Rrir '� * :y.. dr,.f,c�+ 'S tJ-,«�.""'� ..�.1+. .t*f,1 a`!} tt a` tr tf 1«� ' 1 ,ju'f"s�,. r �rs{� �t1 ' ' ,� ,A.t.,��= ,i,_��� T � t',;� p� � � r •,{.t./,,j „t, xa�;'j �M a `^}{4'�, �C"����� .R�",�t,�(`##��a�#,/'�1�v���$t�s. 1�,a f,.K. �•�# f l'a.4 4,� M' !`}jY«} 1. �`' < �� t�'l#""t�.«w�J}'�M. �` ;'rT y'A `�i K�,��t "�f�`.,Pt= �'' ,�'�+�� F r v t a "� }t! .+fit a•s�� r J'$`�}i (r(� {��'• F�rr�y�,'y �•t ,� a9+'� i.. .¢ �, 4 � � q��� ^r ^w t�, �� tt 0!Sy S` f."�.�t'ptt„� t fiY+s'F's�S. EW '. 1 �• 4 p e,. se y � a � �• Y +fi.{". ��� �z �f-��{j* ' t°'+�"» 1����'� � � � "Uyr f;��'.F.�o��^1-a.��t � #�1 w #� �f,. • M1 r w:�ev.,�,Y 1 0�# s"� 4 fi N liar. # {S«J"`t 4+c*,�.t yr .,i x ;1, t= r#`j,`,1',Oiyl�' t, vil,,•, v�fi '. t*!fA #� i+.. s'. �K j,+ „. +•l . �^« �M'th ,�1rc 4',fy' �".yyat ,)D ]'6 . �� i -�Cct�rt n�.��i;•?'�•,��t�"t"g,�%f� Y, i t�t�' i �`�./�� �� �" #z?� ±dq �,+. v�(f+?+a r° .���� ti+ {` r;�'' -,� �t::-`�1�r Aytif� q•y"ntu� t, `t'p.. Gi�i � fit, p�. �••{�t°�r'Lt��. �f. 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'�'!'F� �yy/ti: /'�,rer: L y.i✓• -k/ t'F/"y�."i M A.� ''n,�. :t rp�� ..1<iif«�.t�*.ft2R'..•,w• Ylr,yj "7e! 1�a�` -�/ ��:F'H(fpJ�'{r�`�rY"kjJ!5�^,�`,�1+} t«�kyt.![i�� G♦l�+b�p��yJ(.AI 'Y�l f�"S, F��`:pr� '" �`�,'�ti�rJ,`4'vi -$*. �ty, ! �j,r,tM1 .3*% b+(F�/{'J". ' {+,,�` .NN ll ,�Y�f "Y^« ItE� "f ' ,T �V R� ��b••!r`f«� f `• '�fFl���,�.,.j f '�l� C'j +�t�.�`*����r��it;'" ,�+,,k{�?N,��,.�rd T�'��1'�;pxi}i; `k a,tiR�; �`t�'f�;. +,r 'I��...is•''.:+:"..., j'' ;�,+?•''"pi�z•�}yly ih+' 'i rr{�'"�. �r w��� 1 '9h'Xh vi+�,`n:.',�:,'',M Y�'+ , ,: �}+fl`..'l' . '+'+'"y•„ ..... .,o,w:e.ssM1w.w+w. ,.., .,I�'1::......a., . :•:rs , .. ' . PARCEL SIXTY-FIVE Portion of the 100 feet in width strip of fund described i'n the deed from Addie E. Stolp to Southern Pacific Railroad. Company, a California 'Corporation, recorded February 19► 1996► in Book 123 of Deeds, page 305► C" described 'as followsa C J �. A strip of land 12.00 feet in width# the centerline of which is parallel aw•. 'tY1 '.)F; with and 25.00 foot southwesterly measured at right angles from the (A •'t' jJ centerline of said Southern Pacific Railroad Company 100 fest in width ' m : strip of land (123 Deeds 30S). s The northwestern and southeastern terminus of said 12.00 feet in width strip of land shall coincide with the northwestern and southeastern' ° •` terminus► respectively►, of said Southern Pacific Railroad Company 100 ,• 'feet in width strip of land (123 Deeds 305). + V X Meti , iV • .v ;J e•1 a.' '4 1,•.{ r f; yy f KJC � n •In :Yb�b�`*�.a ..,Ji{ :;is Y �''wm�a „:fid. • a y ••,r "k�r „i + l; } + ,((, � ' ,} �: � ��';.j�"":+fir}"%i��!' '''•s t.r,�`, +�y'•"?°W it ,.{R.,�'�r1�`��yy ry t?�t 'y^' } S '1�� y. �a,.�i+�:f/1+�q�t '•�tt�itM'17' '-.+ 'ey`•.+: F. �Ci9}i�.`r � „!•'w r r A � � G�(�l.Y�.b1�',�"fJojY �rl_`"F.v r t¢✓{i y"+t��6 i '} r ��3J1� TJ.y}5 ¢ �y�y,•t J tV t' S��R�[' j , .a,. rv%S•s`•ni WY1t+„f+Mlw✓r+�FPrW ' AS .i11L t Y +,yq ,,,w.. r`,.�.,( MM "?� ,1�•j j' •.+'r"('it 4µ•, •'T'�Mn°fr" L r•i y+,, } 1i`}.," '+:;�Q'�-i`i f .f , . �fjf�:�,:S+k,' �.yi S !^+,:.5'.a,!t J.•. dr'':�"!'r' Yr+,4:P';R r s , ' S PARUL SIXTY-SIX ' tti Portion of the 100 feet in width strip of land described in the deed from, F. L. Glass, et al, to Southern Pacific Railroad Company, a California Corporation, recorded December 8, 1905,. in,Sook 122 of Deeds, page 2710 r described as follows a. A strip of land 12,00 'feet in width., the centerl in* of which is parallel and concentric with and 25.00 feet southwesterly measured at right angles and radially from the centerline of said Southern . Pacific Railroad Company 10 feet in width strip of land (122 Deeds Its 271). ' The northwestern terminus of said 12.00 feet in width strip of land shall coincide with the northwestern terminus of said Southern ' •i• Pacific Railroad Company 100 feet in width strip of land (122 Deeds {, �rL •;tire " 271) and the southeastern terminus of said 12.00 feet 'in width strip of land to be on the southwesterly extension of the southeastern +$. line of Lot 90► as said lot is shown on the map of Tract 3843 filed on May 23, 1973, in Book 157 of Maps at page 27, Contra Costa County d. Records. .fi. b. A strip of land 20 feet in width► the northwestern line of which is described as follewsa x Beginning at a point on the northeastern line of said Southern Pacific Railroad Company 100 feet in width strip of land (122 Deeds } 271), said point being the most western corner of Lot 89 of Tract t ,r ,�� '{ � J�•,�a������ ���� :�/fir .�• r � ! y ,�;� l:as �yr•� }Y'+;+�.yy,•,•%jJti•,+'+.,'S yN'�`;+i'1;4 ',K:}SRr!'�''''°'�'sYd�t rA,•r `C � "' ��� � 1'• r , •'yj,,S•� �•s '�,�, � �'����rJrr � ��+J; �. 1,' l -prt } '.,�•{ A Y .� i`�,✓�}a" z7;#� �. t���L o h;rtl�r t�,s��� ' ��. �+� "�•r d i` t y s rfi +$. r �C%•'+L r �tfj�( r, rti.; `�' Y ' r �¢ +.i K � • � 'a �•' !:a r� ; r {#J'+ ;nijfh � t fi�'} �A 1� I'+' `�r }k Jgyyj( yY NN yy, '+"�jj` �Yy� • t'{ �'. �•,��''r iJ',e•�;ti1.'ajw,IJ7f�:fl l."+�'.6,�,��'� .,r.' _ � 'lir r . + • , . ,X, �+R..•err if � rn`{<tl�.9 Y • ,.� « r mar-1vrr•Y, ° �,,,.,.;.,+ a �e�'r• � +'t _�-' t '-,�,,,"T'�. ,t.>',•*.`. �r f • 1 CT , ! tl IrtI i,'';f/,�lynf{.y�Ij�� �,u! .�"f� lk.t'`= ,,.fir 7y�Yr�tt` .�' �,fir J�'¢ '�{• 't yh �r ��'"!'� �� j�,.t` �N�,' � ti ` �!'j'},,� �`tt+�� k� �`t,I,��.r,. •`!�.Ir4�j�i!�4,}�)f���� �� `i,.' f ".N ';} � i'�'V���'.. �.j� .��fl�..Y.A��'p� `� r �'!( � ,,y+ ,f ..1' L�. n ��. Y"" ✓" �'Q�+. cf.' " .y � .,,f1'` � f�A.� j t/F _rY� "�Y�.� ��� `. '"�, `>�ay;'�''�,r Olwi, Y1'j�},��f•/v ��I�ijlf�ft �jr �{ � ,,s'jt��!'�r�w,4•,�tYrr"�a / � ,wT-;. Y4 ,j•, xC* �a r,f fry'1+f` ft`k j4f. 1P % �u, . f W � k.>c .,f/fRr<n;::_ ilk, _7. ;+�3xr ,L k t' ter r �j p 3•:r- F�° t�+y'Ra��it� i �f�t, � 'a`y�ryt�� � `/ r + .k eh.•, 7 "`�•`�x�4 `A ` �pp'.!�g"}'i q, . '1{',u� "$ `� ` uMn}r*'"!` ,�` 'lri:•r xr�� t)���,•�3�'�fj+ � tC'trY� r k�` { .Y 1i��°b""" it � '� �+ / f J/Sp�� N♦ �., { 7 �, � y b�Y } ;fk �rk'!!4 if irf "p v '"'- .11.t` :r�'�rY xl,. �Y yarn ♦4 } �, +L''.,r �' �� .l'"`'t '+'f`:Ljj{��C�Yj �`'�i 1t�!�Y,Iyp��r 4l M}�♦`F rt rA 4� {'} :lj�. �t '+M �F '1. / ��f �+ft ����}, r��C«/. + ,., 1.. r .,jf ikY�/,yQ{•�,Pi" {j�•.�{�� � L 'M't�� �1�('/F^'""Y�r.t7{7 �Y AAS �./� � '1,.�� /'✓/�1{µ�` •, ;r 4 hfy}�ilRry'}i � �� ,T��*/�t'T, I.,J rt"�t� ,T' `� ";f f .fr �I'Y�t���It ���{ 4. ,h �I�` l� �,a �,�'� `��yM °�!/4! •1`� A /{� t��4'A{M�jR l•��Yr 4 f�jyt{}1�F�. "t1, •b " i' EXHIBIT ONE • SECTION TWO . SURFACE ACCESS EASE1ENTS PARCEL FIFTY-NINE A ,trip of nand 9.00 feet in width# the centerline of which is parallel a. with and 4.50 feet easterly# measured at right angles from the centerline of 100 feet in width strip of land described in the deed from William Lynch; et ux, to Southern Pacific Railroad Company, recorded June 10, 1891, in Book 60 of Deeds, page 149. • Ya PARCEL FIFTY—NINE—A 4 <:•. A strip of land 15.00 feet in width, the centerline of which is parallel t t with and 7.50 feet westerly, measured at right angles from the centerline of 100 feet in width strip of land described in the deed from William Lynch, et ux, to Southern Pacific Railroad Company, recorded June 10, �. 1891# in Book 60 of Deeds, page 149. { w: PARCEL SIXTY-ONE ; _ a. A strip of land 28.00 feet in width, the centerline of which Is .' parallel with and 36.00 feet westerly, measured at right angles from 'p the centorl ine of the 100 foot in width strip of land described in y 7:`• the deed from Family Investment Company, a corporation, to Southern Pacific Railroad Company, recorded July 11, 1907, in Book 126 of ; +'r Deeds, page 424, .s ` x• 'tM'✓r l Y+y v�i'l i(;���,ryw. �)f�•I+�• ' '�� '•,•p�P ...� �, R .l N. 1:. ` ., V �•r � �'�V"�!t '�;r'`K'� MM, M =ttR• 7� - -". i tr} d fJ } f� •i `'t r `�r5 �' T` , t t F 410 ,' .� y .All I Y�•5 ,�' { ' y� Y 4. � �J `•3 y l7 t. Yi t. . � r•. .. .its 1 A 4 . ,,�+'? • 'r 3f iti g. y 'a' S' i � y+ .A•+ •�a s i¢3 �:, at.LL, .t.+:�; a. , , , y, r',.��r++ �' 1 ,. •1,, i'). ;.'�� j.u'!•b i' i#L'.+'• •}'.+!o IA PARCEL SIXTY-CNE (Continued) The northwestern terminus of said 28.00 feet in width strip of land ;N. shall parallel with and 715.00 feet southeast of northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424). b. A strip of land 28.00 feet in width,' the centerline of ,which is �. described as follcvss ' Beginning at a point on the northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424), where said northwestern terminus of said Southern Pacific $N11 i Railroad Company 100 feet in width strip of land (126 Deeds 424) Intersects a line which is parallel with and 5.00 feet southwest of the centerline of said Southern Pacific Railroad Company 100 feet in .' width strip of land (126 Deeds 424)) thence from said point of *v beginning southeasterly 935.00 feet, more or less, to a point on a :Jz' ;;1.i V. line which is parallel with and 18.00 feet southwest of the w? centerline of said Southern Pacific Railroad Company 100 feet in + �ti width strip.of land (126 Deeds 424). ;=s r The southeastern terminus of said 12.00 feet in width strip of land iY shall coincide with a line which is parallel with and 535.00 feet y southeast of the northwestern terminus of said Southern Pacific fir. •'�'� � .; Railroad Company 100 feet in width strip of land (126 Deeds 424). c. A strip of land 28.00 feet in width, the centerline of which is a �. doscribed as followss y S'+ :'elf�%i��/i`. 4 �tl:lh. e)`, y+a+#lt;�•"'y."".:(�1i:,�;�,, vit.;j����4�i�7 Yi�jj(,fi�1r >T .w K.ri`ti,;.,,n'"'�+�yt• .f.�t�. + Y T Ti•. M , t iI ! r ;yip„ y•' Is , 1 / , ) . i . .. Yy�. ► •.0. i •5.. t .� , ,.f.,...r., . rr r. t. �+ � .N,la ..w ."• a , + . ........wrw.wa•__ ___— _-_—_ s.., t..=•"ter'+�.�,.a.._ _ _—Ya4daatLLiM� _- _— PARCEL SIXTY—ONE (Continued) Beginning at a point on a line which is parallel with and 335.00 feet southeast of the northwestern tenjinus, of said Southern Pacific Rai I road 'Company 100 feet in width strip of land (126 Deeds 424), at its intersection with a line which is parallel with and 16.00 feet a' southwest of .the centerline of said Southern Pacific Railroad Company 100 feet in width strip of land' (126 Deeds 424); thence, , from said point of beginning southeasterly 381.00 feet, more or less, to the point of intersection with a line which is parallel with and 27.00 feet southwest of the centerline of said Southern ' Pacific Railroad Company 100 feet in width strip of land (126 Deeds ?. 424) with a line which is parallel with and 715.00 feet southeast of dt the northwest terminus of said Southern Pacific Railroad strip (126 +b Deeds 424) . '$ ' r�t The southeastern terts•inus of said 12.00 feet in width strip of land shall coincide with a line which is parallel with and 715.00 feet 4 . southeast of the northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424). .ads PARCEL SIXTY-TWO The southwestern 28.00 feet of the 100 feet in width strip of land Z". described in the deed from Peter 8. Terkelsen, at ux, to Southern Pacific .ts: .y Railroad Company, recorded in Book 120 of Deeds, page 174. d . • i'3;s• 'r .1ia. ) + �' *�+�. "� , :���[ +>•y.s�y�agc, l�r,,,,,.�+.�.�,yxr.i���'�ta,'��'.1;` 1r't*'r'�,.�s,! :rcµ��;(3`�'r�'�;�'� Y; b,".�S! .�i. *�w � r •t,';'h� : ,( tit. �„j,i'.�+�}j.t n.' is r� ti J r. .1�. P° )' r ! � » sr �� � .0 +t,. �•t/�y4 r�'t����'�y A1aj A It c� 3 � +✓rr r`+�,M f�I,.r'tw.�'! �rr r ° ».• ,�'� �'{ o�+`"fMti�'i f'F' ,,r+�•�: ! 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It'if" �d�t��� g }` ��f"�P�µ .E. �"�`•�,x* `�,. to�.�t � 3'�«s4'�fr��r-fRf*•. p a}y � ,},♦Y 9i4 rt+l /`l"r+{`t s�"'q��r'y � r� r�Tlr. ,J�, s,• y �7 k � >t a r"�b'f r�r �'1 rr.t♦,{ f if r Ii..+�` 3 �jj{: a H�«r` �rjtt r` { f f. � � t7�' Pd'r�1.+•'t�Yd� *��M1rC'�'pyll�r� 3 •,s f s 2n r�1':A.l ep '4 {Art•• �. „�2.+ mli�li,i South Broadway Easement 23. GOVLRNING 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 28th day of January-,2003. COUNTY: EBMUD: CONTRA COSTA COUNTY EAST BAY MUNICIPAL UTILITY DIST 'ti By By: Chair,Board of Supervisors Stephen J. peri, Manager,Real Estate Services STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA ) On January 28, 2003 before me,john Sweeten, By: Cleric of the Board of Supervisors and County Administrator,Contra Costa County,personally appeared Lynelle M. L i , Mark ,IDeSmilni p--r , who is personally known to Secretary of the District me(or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they APPROVED AS TO FORM: 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) By- acted, y e acted,executed he instrument. By ..,_- Office o Gen al Counsel uty Clerk IV APPROVED AS TO FORM: Silvan B. Marchesi B©Ua uns l By: Pamela j.Zaid, Deputy County C n l Page 13 of 13 KL:DRA:eh G:\GrpData\Rea1Prop\EBMUD Pipeline\10603EBMUD SoBroadEase.doc 1/n003 1:24 PM EBMUD CountyZq CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Alameda ss. On Jan. 16, 2003 , before me, .Marie C. Plumb, Notary Public Data, Name and Title of Olfloar(a.g„"Jane Doe,Notary Public") personally appeared Stephen J. Eoeri and Lynelle M. Lewis Name(s)of slgner(a) R personally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and .�, acknowledged to me that helshe/they executed MME C. the same in iisltw/their authorized CommWalon#1 ll capacity(ies), and that by his/hw/their Notary Public-ft signature(s)on the instrument the person(s), or 1Wmrda��Y tl the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Place Notary seal Above signature of Notary Public OPTIONAL Though the information below Is not required by law, 9 may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Grant of Easement Document Date: not dated Number of Pages: -13- Signer(s)other Than Named Above -0- Capacity(les) Claimed by Signer Signer's Name: _--- Stephen J. Roeri and Lynelle M. Lewis - 0 Individual Top of thumb here. 0 Corporate Officer---Title(s): Cl Partner--0 limited d General d Attorney In Fact • Trustee ® Guardian or Conservator [It Other:_ Public Coaoration Signer Is Representing: EAST BAY MMICIPAL UTILITY I}ISTRICT Ill dw.iea9 National tadary Asoodadoe•a=Da 8ota Aw.,P.O.Box 2402•CtaibwoM,CA 91913.2402.www.netiotmkneiryorg Prod.No.6907 Floorder.call Toll-Frw 1.80"7"a27 E,U]BIT"Ago All that zeal property located in the City of Walnut Creek,County of Contra Costa,State of California described as follows: That portion of the parcels shown as 12652 O.R.570 on the"RS 2090 Record of Survey of Former Southern Pacific Railroad Right.of Way in Incorporated and Un-Incorporated Areas in Contra Costa County,California".recorded August 24, 1994, 106 LSM 4,Contra Costa County records,more particularly described as follows: A 20 foot wide strip of land,the centerline of which is described as follows: Beginning at a point lying 88.65 feet left of Station 1499+18.70 as said stationing is shown on sheet 7 of said RS 2090,thence South 62*21'00"West,56.10 feet;thence South 5021115"East, 41.90 feet;thence South 14°29'42"East,289.86 feet;thence South 13141'53"East, 146,24 feet; thence South 18*49'18"East,264.30 feet;thence South 22*13'04"East,247-38 feet;thence South 24*59'08"East,245.48 feet;thence South 29*11'41"East, 164.53 feet;thence South 32002'12"East,276.38 feet;thence South 32*19'00"East, 682.36 feet;thence South 32014'20" East, 805.34 feet;thence South 25*59'09"East 49.12 feet;thence South 22057'13"East 126.80 feet;thence South 13*30'54"East 40,52 feet;thence South 9°56'31"East 169.65 feet;thence South 247'30'East 652.946 feet;thence South 1*00'19"East 222.83 feet;thence South 13028'42"West 467.10 feet;thence South 33*3452"West 250.06 feet to a point lying 22.14 feet left of Station 1550+53.81 as shown on sheet 12 of said RS 2090 and the terminus of the described centerline. Excepting that portion of said 20 foot strip falling outside said 12652 O.R.570. Containing an area of 103,200 square feet more or less. THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE LAND SURVEYORS ACT IN OCTOBER 2001. Q 0 0 ALAN R.DUBACK LS 4765 No.LS 479.5 Exp,3131104 OF H:\JOB-NUMS12569211MHRSE\EasemenALegal\sb—lgl,doe 14161' t t , � r , ii , eq 1 \ 1 , r « et STS IPA d ' d , e i 1G� 9 y5J1� , ;d ti4F/eeeei� �3° At 'Its77aSDD 8 1 �0pi1! Sit tn3� r d► N x i 4tx°11 � S P4 i Vill IV 1 t + 4 i x l +, •.��'""{,►tlB tLt 9ltxtt 4 pxyA41QlI� gA�CYI M r i 1 t t � t w 4 � lot ro � � 4 " Out , ► ` . O Cr ars 04 + � .w EXHIBIT "C" TEMPORARY EASEMENT All that real property located in the City of Walnut Creep,County of Contra Costa,State of California described as follows: That portion of the parcels shown as 12652 O.R.570 on the"RS 2090 Record of Survey of Former Southern Pacific Railroad Right of Way in Incorporated and Un-Incorporated Areas in Contra Costa,County,California",recorded August 24, 1994, 106 LSM 4,Contra Costa County records,more particularly described as follows: Parcel 1: A strip of land of variable width,lying between the easterly curb line of South Broadway on the west and the east line of said 12652 O.R.570 on the east,with an average width of approximately 33 feet.The easterly line of said strip running from a point on said east line of 12652 O.R.570, said point being the southern end of a 400 foot more or less curve on the westerly line of 50 LSM 21,southerly along said east line of 12652 O.R.570,4,700 feet more or less,to the intersection of said easterly curb line of South Broadway with said east line of 12652 O.R. 570. Containing an area of 3.51 Acres more or less. Parcel 2: A strip of land,40 feet in width,lying between the southwesterly curb line of South Broadway on the north and the northwesterly line of Danville Boulevard on the south.The southeasterly line of said 40 foot wide strip running from.the intersection of the east line of said 12652 O.R. 570 with said southwesterly line of South Broadway,approximately 433 feet,to the intersection of said east line of 16652 O.R. 570 with said northwesterly line of Danville Boulevard. Containing an area of 0.40 acres more or less End of Description H:\JOB-HUMS\2569211RNHRSE1Easemeiit\Legallsb-temp_Igl.doc . rgo3616 ` WALNUT s w CREEK L �. q VI®0O T qR Vi INITYMAF' (NO SCALES x � mas 0 ad +real �a 0.H 70 t'Ib �pPO'1 room It r.Mca;r + o �j/ M;aG9A L r SAN aha a NOTE: pTA No $. SURVE THIS DRAWING t5 NOT BASED ON AN E.d.M.U.q. ��iS�M d3 um m V IlEFEIlEIYLJE. 1. RECORD OF SURVEY t AS 2080 1106 LSM 4 1. :4 Lim 21 `'- _ - E1 Xt 09 ACAIANES 11.4 46-0" t - 0183 OR 014 - -- zoo.A� iS71a C�i Sat 200 q 200 400 600 FT sGA<Ey r EXHIBIT C EAST BAY MUNICIPAL UTILITY DISTRICT ® OAKLAND,CALMORNIA SIGHT OF MAY WALNUT CREEK--SAN RAMON VALLEY r+ C. cHflu TRANSMISSION IMPROVEMENT PROJECT ,nt a K. NA4AOEGAWA I EXHIBIT A i m t+ T t scat I..200' ux 6-25-02 SHEET 1 OF 1 1003616 EXHIBIT "W' . 1 Victor J. Westinan County Counsel 2 Contra Costa County . By: David F. ; Schm}dt 3 Deputy County''Couneel , P.O. Box 69 DEC an 2. 1986 4 County Administration Building. •r.,n 651 Pine. Street, 9th Floor .;'R. ;"+,. E'r,',:�f`,r' rnr;c 5 Martinez, CA 94553 _�.- _l �'�:;, o�;�,n Vy Phones (415) 372-2057 �} � Attorneys for plaintiff. 7 8 " SUPERIOR, COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 CONTRA COSTA COUNTY FLOOD } CONTROL AND WATER CONSERVATION ) No., . 262946 11 DISTRICT',, a subdivision of the ) State of California", ) FINAL OkDER OF l ) CONDEMNATION Plaintiff,' } 13 } 14 ) CONTRA COSTA. COUNTY, substituted) 15 inplat of SOUTHERN PACIPIC } TRANSPO TATION COMPANY, ', ) . 1.6' belaware corporation, et al. , } } 17 Defendants: } 18 - ) •19 It. appearing to the court that plaintiff has paid 20 defendant Contra Costa .County the sum of money assessed by the 21 Judgment in Condemnation entered in this proceeding, 22 NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED 'that 23 a. perpetual, non-exclusive easement and right-of--way in, under, 24 along and across the real property situated in the County of 25 Contra- Costa, " State of California, and more particularly described 26 in Exhibit 'A attached to and made a part of this Order, be 27 condemned to plaintiff. The easement and right-of-way shall be 28 z, 1 Subject to the terms and conditions of the Judgment in 2 Condemnation, a copy of which is attached to this Order as Exhibit 3 B. 4 IT IS FURTHER ORDERED AND ADJUDGED that a certified. copy 5 of this Order be recorded in the office of the Recorder of Contra 6 Costa County, State of California, and, upon such recording, title 7 to the easement and right--of-way shall vest in plaintiff. 8 9 Dated: December , 1986 10 11 ROBERT G. MC GRATH JUDGE OF THE SUPERIOR COURT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 x -2- `;Art R inion Bt/C.as,". EXFUBIT "A' A portion of Parcels Se-•enteen, Eighteen, Nineteen, Twenty-mom, IdentY.Five, Twenty-Eight and Twenty-Nine as described. in deed to Centra Costa Countv recorded December 9, 1985 in Bask 12652 at page 570 of Official Records of Contra Cita County, State of California Lying within the mhos San Miguel and San Ramon being a strip,of land 44.00 feet in width, the renter line of which is described as follows: ' Beginning .at a point: on the center Line of 52.00 feet in width riqht of. wav as described in .the Lis Pendens, Contra Costa County Flood Control arra water Conservation District vs. walnut Creek School riistrict ofContra,Costa County, et al, recorded, December 24, 1969 in Book 69031. at,page 163, records of said County, which bears. north 350 09' 44" east {record N 350 08'.,27" E)' 99.36 feet from point T6-49 as described in said Lis Pendens; thence .from rmint of beginning south 270 28' 24" west 132.85 feet, thence southwesterly along the arc of a; tangent curve,. concave to the 'southeast having ai radius of 3:34.00 feet through a central angle of 28° 37' 34", a distance of 165.87 feet; thence tangent to said curve south 10 09' 08" east 50.96 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 4' 7.00. feet through a centras angle of 120 17' 09", a distance of 43.70 feet; -thence gent to said curve, south 139 26' '17" east 578.89 Leet,. thence southerIv a3.tm9'.the, arc of .a .tangent carve,,, concave, to the.. west. having, a radius, of, 4390-.00 feet through a central ar�gie a..dist off :94,.�fs feet.. thence tangent to said curve socith 12" IZ' 19" east 221.42 feet; thence southerly, along the arc of a �ngent,.. curve, concave to the west 'having a radius. of 3640.00 feet through a centra]. angle` of 1.10 45' 10", a distance of 746.65 feet;' them tangent to said curve, south 0" 27' 09" east 84.06 feet; thence southerly along. the arc of a tangent curve, concave to the west having a radius of 955.00 feet through a central angle of 200 43' 0511, a distance of '345.33' feet.;.' theme tangent to said curve, south 200 15' 57" west .78.60, feet,- thence eet;tS ence southerly along the arc of. a tangent curve, concave to the east having a radius of 373.00 feet, through a central angle of 280 04' 48", a distance of 182.80 feet; thence tangent to said curve, south 70 48' 52" east, 540.95 feet,- thence eet;t southerly along the arc of a tangent curve, concave to the east having a radius of 5080.00:feet through a central angle of L° '37" 13", a distance of 143.66 feet# thence tangent to said curve, south 90 26' 05" east 85.11 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 1150.00 feet through a central angle of 80 06' 55", a distance of 162.88 feet; thence tangent to said curve south 170 33' 00" east 972.85 feat; them southerly along the arc of a tangent curve, concave to the west having a radius of 400.00- feet through a central angle of 1611 55' 44", a distance of 118.19 feet; thence tangent to said curve, south 013 37, 16" east 135.16 feet; thence southerly along the arc of a tangent curve, concave to the west havia+ct a radius. of 935.00 feet through a,central angle of 40 24' 06", a distance of 71.83 feet:; thence tangent to said curve, south 316 46' 50" west 130.82 feet; thence southerly along the arc of a tangent curve, concave to the east ha'rinq a radius of 398.00 feet through a central angle of 170 21' 220, a distance of 120.56 feet; thence tangent to said curve, south 1.3° 34' 32" east :138.75 f`-et; thence southerly along the arc of a tangent curve, concave to the Past hav=N l�U O U U LTJ a radius of 2905.00 feet throwh a central angle of 96 30' 40", a r3istance of 482.23 feet; thence tangent tosaid curve south 230 :05.1 13`" east 144.78 f6--t; thence southeasterly along the arc of a tangent curve, concave to the northeast having a radius of 3645.00 :deet through a central angle . of 9* 30' 16", a distance .of .604.65 feet; thence tangent to said curve, south 320 35' 28" east1547'.08. feet;. thence southerly alcir�g the arc of a tangent curve, c9ncave to the west having 'a� radius of 769.00 feet through a central angle.-of 22°' 59' 01". a distance of 308.48 feet;" them: tangent to said. curve, south. 90 36' 27" east 121..63 feet; thence southerly along'the arc.of a tangent curve, concave to the east having; a radius of 374.00 feet through a central anq.le of. 24° .06' 31% a distance of 157.38 feet to a�point in the easterly line of Parcel, 29 as. described An,the hereinbefotet, mentieped deed to Contra Costa Countv (1.2652 OR 570)1. said point to-be hereinafter referred to as Point *A"r thence,continuing southerly along: the arc of said 'curve with a radius of 374.00 feet, through a central angle of 3- 09' 297, a distance of 20.61 feet; thence tangent to'said curve south 360 521 ,334 east 50.00 feet to the terminus of said 44.00 feet in width strip of land. Said Point *A* is further described as bearing north 40 09,00* west 223.56 feet along the easterly line. and its northerly prolongation of Parol A as said pard is shown on the crap of MS' 805-8111 led Maty 23, 1984 in3ioolc 11.0. of Parcels, gaps at page 24, records of Contra +stats tburtty. '3r1UG 2R' 'am all of the above 44.00 feet in width strip of. "Land lyim ,outside of said Contra Costa County Parcels (12652 O.R. .570) . +ex.srbApass.t6 lIt:r,I coF;t a, couii'.y BY David F. Schmidt :5 t.oputy County Counsol, P.O.. Box 69 DEC ` � ����i County Administration Building '651 Pine Strut, 9th Floor 5 Martinez; CA 9.4553: a cb Phone: (415) 372-2057 '► 6 r wrMUAL c wr . 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 CONTRA COST, COUNTY 'FLOOD } CONTROL AND MATER CONSERVATION } No. 262946 11 DISTRICT, etc. , } ? JUDGMENT IN CONDEMNATION 12 Plaintiff, ) i 13 V.14 } j } SOUTHERN PACIFIC TRANSPORTATION '°? CO. , etc. , et al. , } 15 } Defendants. } 1 } 17 18 WHEREAS, plaintiff Contra Costa County Flood Control 19 and Water Conservation District and defendant County of Centra 20 Costa have stipulated that judgment in condemnation may be entered , 21 with respect to.'the real property or interest in real property 22 described in the complaint on file in this action, and haF,.e waiv!r�,(; ,. 1 23 statement of decision and notice of entry of judgment, r 4 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED - :VII 25 DECREED AS FOLLOWS: 2G 1. Pursn nt to this action, ,)lAi.ntir f shall inel 27 i r^�fY GY ry tl �} f ♦ T11 r ++�Y 7 {1 ;icquir( {i p6.3.�.o'l-t7ti1. , llon`cxti,•.r�.ldsivf1 4�t��'i{�Zt{.�n an{1 rlg��t�.-{��`=:•.,c .• (wii 5 of laying down, CC,)n5�if:rltl.;'!"ln'?, r(:`cansrYl.cf'. Lriq, • :t 1. i"('iRi)V1.YlJ , .rf,:i�i..t[; L11,�, Y •1a11 !' tlll, al,l { ;}i ;.I ,tfl i , „t ••1 It t ;ly •,711 .,.. , 2 as plaint i. may .sc<� i'.i.r r t ?!' .1!' t i,l•lt3 lt!t! I i ,)t„i t.(51)k:l t)l iflll"I,t, '. + t 3 ono or more pipelines, channels, cu1.v<..rt:5 i i h necessary walls,: .revetments, structuros, bracos, connections, 5 fastenings, fences, protective barriers, aj)pliancesi fixtures anu 6 other facilities for use in connection therewith or appurtenant 7 thereto, in, under, along and across that certain real property . 8located in the County of.-Contra Costa, State of California, 9 described in attached Exhibit "A. " 10 2. For acquisition of the easement described in section 11 1 above, plaintiff shall pay to defendant compensation in the sum 12 of $2,062,.280.00. ' ' Plaintiff has previouslydeposited with the 13 court in this action the sum of .$1,370.,000. 00, which sum shall be 14 credited tcs aard.:;th6, compensation payable to. defend nt.,.. leav rtg:.a .15 balance owing to ,defendant of $692,280.00. Upon entry of this i. 16 •Judgme`nt, the. County .Clerk and County Auditor are authorized and j . 17 directed. to transfer, 'by means of a journal entry, . from plaintiff ! 18 to defendant the balance awing in the sum of $692,280.00. i 19 3. The easement acquired by plaintiff shall include the ; 20 right by plaintiff, -. its officers, agents and employees, and by 21 persons under contract with it and their employees, wherever 22 necessary fordrainage or flood control purposes, to enter upon 23 the -above-described real property with Dersonn.al, vehicles and 24 equipment, and to remove all trees, ,,egetatioii and structfares 25 thereon that interfere with the purposes for :which thcs easeml�•~It i .. 26 acquired. 27 4 . In the event either p3iiin i "I or c1r rnrld-Int . unclrr. ta7;;(�'s construction or any a' �'r..j l�.�rlf.i.t�n .�rit!li n + `• `2- .I, 1i 11, ExII t {,1 I n `u t r t ,'tlit"•i 1 11 I , crY (.11t lr;ir(.y ,in d-rt..ikIntJ :;Ui'1I con-,! 3 rO j.;oi1t11)jy rzc)t jfy LI)e 'otliur party .anu rji.ve, .th('-, culler party tiiJ. 4 ( 30) calendar: days to review whether the proposed constructAun Qr. } 5 excavation may impact its facilities or operations. . � 8 5. Defendant is considering other possible uses of the 7 above-described property and shall reserve the right to .th6 8 reasonable use of all of the real property described in Exhibit 9 "A, " as long . as the use iscompatible with plaintiff's easement i 10 rights as set forth in this Judgment. i t 11 6. In, -the event defenda'nt's use of the above-described :. 12 real property requires the relocation or reconstruction of t 13 plaintiff 's facilities, defendant shall. be responsible for al:. 14 costs associated with .the rel,r�cation or ;.recons:tr.upt on Plai:':ti`.�: ! . .15 shall act as the lead, agency in therelocation. or. reconst.ract on. o 1.5 the plaintiff's facilities. Defendant shall reimburse the 17 plaintiff for all of plaintiff's expenses incurred in such 18 relocation or reconstruction. 19 7. If. plaintiff proposes to do work of a non-ernergc no:,- t 20 nature which may interfere with defendant's reasonable use of �:r+ 21 above-described real property, plaintiff agrees that, prior to s 22 start ofthat work, defendant and plaintiff shall enttgr into a:z 23 agreement providing a work plan and schedule which minimize `hr 24 effect of the work on defendant' s reasonable use. The parti-3. 25 shall actin an. expeditious. inann:,r.. to reach agreci-ont:, an(I ::%;111 20 no(:, unrt).-.i3onc'ib y delay p1nj.nti.[ Cron .nccotnpJAr-;h.i.nrj 110 " ,>n - 27 emr.t-gency work. In the event thal-. r)arty iAeI1!. M.• :; 28 C?ttt<`Ytjt'tlt,;,' :;.i.t:. t1l:i. :)n, tlt,:li: par( } !)ct'" '. nOrl.ry tl-Jio ot;n-t• p:,r'. 1 i ,nl;:+•+li.ti ,. { a.l l.ii+, ,.rlitt +{• rt;�y` ., , , ;I,tl i +,rl, h:nl ,r,3, lit •. .;It,tll I.,• Ylr•I L11t'tl a :l n t•.Ila .LUr1 Lrlttl. ai.9icoflLi.1'1kjaII(n.• of- th(, . 3 oporaLio'n oc plainL•i.N."s Lac.il. ti.+2?7, or of th'u or)orationor i 4 dol,- ndant's uses,' or a situation which presents. an imme'diato I f 5 threat to the operation of such facilities or uses. An emergency 6 shall additionally' include any rupture, leakage or other damage to 7 plaintiff' s facilities which creates a present or immediate threat 8 to public health or clanger to public safety. In the event of an emergency situation, plaintiff shall. 10 not be responsible for any loss of revenue or other damages to 11 defendant resulting from the inconvenience or interruption of .12 defendant' s use so long as the plaintiff makes every reasonable . 13 effort to immediately alleviate the cause of the emergency 14 situation in a mariner which: minimizes the impact on defendant 1.,s 15 uses. - Similarly, defendant shall not be, responsible for any loss 18 of revenue or other damages to plaintiffresulting from the 17 inconvenience, or interruption of plaintiff's uses, so long as . 18 defendant makes every reasonable effort to immediately alleviate 1.9 the. cause of the emergency situation in a manner which minimizes i i 20 the impact on plaintiff's uses. 21 8. Defendant and plaintiff shall require all 22 contractors or assigns who undertake construction on any portion ; s 23 of the real property described in Exhibit "A" to list the other 24 party as an additional insured .under the contractor' s liability 25 insurance- and shall further require, the contractor to indemni. Fv 26 both part- .i oto in a like mahne:r. �7 9 . Plainti.Er stiatl. not ir`.r the control. Contra Cos' 1 28 ;II t;'1r'y' Distr.irt {reforrutl tf7 as in writ int{ or x11r: x„ 3 10. 11 CC;C SD dct.�rin.i.nes Lhnt "any ref.) T it or mai:It.!,, ,... ,. 4 activity by' plai.nti.FT will' afrect CC;CSD's facilities, plainti.i :` 5 and CCCSD shall anter into an agreement providing a work plan and' .� 6 schedule which minimize the effect. of the repair or Maintenance 7 activities on the operation of CCCSD.'s. facilities. 8 .11. Plaintiff shall not require CCCSD to relocate or 6 ` alter CCCSD's facilities to allow expansion o1r any. flood control 1C? facilities: 11 12. In the event that -CCCSD performs any repair or 12 maintenance activity on its facilities, plaintiff agrees, at. .n ) i 13cost to CCCSD, to protect plaintiff's facilities from the ef= .4ts .I of such . es. 15 13. In the event defendant +- grants any subsequent 16 easeme s licenses within the real property .described in 17 Exhibit . "A, " defendant shall require each subsequent grantee 18 (referred to as the "Grantee" ) to enter into a common use .19 agreement with plaintiff, 'which agreement contains, at a minimum, 20 the following provisions: 21 a. The Grantee shall remove or relocate the 22 Grantee's, facilities in a timely manner and at .no 'cost to 23 defendant or plaintiff as reasonably necessary to accommoda'-- 24 A141tiff' s right to' construct; alter, replace, enlarge, 25 maintain, and operate plzintif{ ' s• facilities, 26 b. . Whon to undortap" a 27 .. which shell. neco 7.r4L:`_�tr, tfvs. rr mj ov;tl or roloc" ati"."I or tho Cir.* rt' cid it`. ''s "Vithi.rl ;,�l.rrT !':i' l,f i ' .". i"' T4 t ln(?I�,t, �7�i:1T.17�,'. i, ! '.-h;ij j not.. { • 1 � ' ., � 'f' II•,. •i t i• Y• 'ilttii C• 1 ltti',1� t ll{ lir%lel:{`� t .i i i7i ! I ' <• i 1 i t• i�•:� . 'i'ir ,;I ,;��t,, ,. :�;L;l, i :su'r;illi ,. ��7 rt�lnts�r.rl or relnr,ai, i.t�i1 ,•l,l:, � 3 to ;,)lnlflhi. rr wi !: li "I thirty ' 0) calondar days or recc.ipt oL nozi.t: h to do, so. plaint.irC shall roview and comment on the plan within 5 thirty ( 39) calendar days° .of its receipt.. The Granted shall 6 modify the plan to incorporate plaintiff.' s comments and, resubmit 7 the plan for plaintiff' s approval. The approval by plaintiff 8 shall not be unreasonably withheld. 9 c. Any damage done to plaintiff's facilities by 10 the Grantee shall 'be. repaired by plaintiff and all costs shall be 11 paid . for by the Grantee. Grantee shall provide. a bond or other 12 surety acceptable to. plaintiff on or before the execution of the 13 common use agreement by plaintiff, in a sufficient amount to 14 plazriti.ff . ,s,. a guararrte that the Grantee s,haT:l 're .v moe az. r,ei:o:cate 15 the Grantee.':,s facilities upon notification to do so by plaintiff. 16 d. The Grantee shall defend, indemnify, save and 17 hold harmless, plaintiff and its officers and employees from any .18 and all claims, costs and liabilities for any damages, injury or 19 death arising from or connected with the performance hereof; due 20 to or claimed or alleged to be' due to negligent or wrongful acts, 21 errors, or omission's 'of the Grantee or any other person under the 22 Grantee's control, including but not limited to liability arising 23 from injury, or .death to members of the public using the property. 24 described in the subsequent easement, save and except claims or 1 25 litigation arising through the sole ncgUgence or willful s 26 !111' .onduct. of tslainti.`'C, and Cie Grant.,,- shi.11.1 maid' good to and l 27. r:.Ambur 7c? plainti f f ror any expend.i tur—i, inc].-iid ing rea ont l)1 f.>ln. mayrir-Aff may mak- by I'MIS0111 Or such mattors. i i L had'. t11a' Grallf.I..-c sha11.1, servo. and ho :: :+l:l t.:'St 1 I iiall"1111.t`:i:i I.rr7ln ilily :inti (11.1. C,�cllll."1C.JC:`s ar-Lsi out rJ� lIl'.r'::'::• i 3 cnndc'milat-ion concerning such matters, except that plaintiff: shall 4 be responsible for a. share of liability corresponding solely. to 5 the actual percentage of 'the cause in fact of plaintiff's. 6 facilities as deliberately designed and constructed. The Grantee 7 further agrees to assume all joint and several liability -for -tort 8 actions to the extent such liability exceeds the actual- percentage 9 of fault attributable to the. actions of plaintiff and its officers la and employees. 11. . 14. Plaintiff shall indemnify' and hold harmless 12 defendant from any liability arising out of plaintiff's operations 13 under this Judgment.. Plaintiff shall further assume .1 re ponsi6ility for any damages prox'i:inately .caus6d by rgason' of �. 15plaintiff's operations under this Judgment and plaintiff shall, at � . ' 16 its option, either repair or pay for such damages. ! 17 Defendant shall indemnify and hold harmless plaintiff; 18 from any liability arising out of defendant's. operationsunder thi. 19 Judgment. Defendant shall further assume responsibility for. any 20 damages proximately caused .by reason of defendant's operations 21 under this Judgment and defendant shall, at its option, either ! j 22 repair or pay for such damages. i 23 15. The parties acknowledge that plaintiff: has agreed f ! 24 to incur an ad'di.tional. expense, at defendant' s request, during , ` const.ructLon of the flood con-troll channel, in order to rei.nror-c- 2G thlc cha3nn-1 wrtl.s on_ the portion of the channel lying hct,.%F(r>;' n7 'vrs��-1.1 7�vc coo and Mt. Diablo Boulev�ar.d. Defendant shall. rohnb l• s : for thrr roe:-sonf- ale a-3ctS-ir11 costs incurred. Plaint i rr s l iil+`1 1 f 11r111.:'01 (1t'C '.'IILIA11t wl t-.h an r1C(]t1r,IIC4.'O11111' ac vtia C. 1 y inc+ir. r.od. . . :such roimbtirs Qin!,-nI: .;hal 1. t)u Incido r.1L L;,,. 3 c1�.,lc�nct4-ln conveys to a ,subsaquo .grxlnle-e, any right which. ilio- ,� 4' or precludes utilization of the reinforcing n. the `walls, or rpt 5 the time defendant itself' utilizes, the reinforcing in the walls. � 6 1.6.. This ,Judgment sets forth the entire a ' of 7 the parties. The performance of' the ,terms of this Judgment shall 8 relieve plaintiff of a'll. further obligation or claims on account � 5 o£' the' location, grade or construction of the proposed public, improvement.. 12 Dated i DEC 5 . 1!�$ 1986 � t 13' 14* 15 J'ucige Olf th'e Superior CouFt + 16 f 17 18 I 1 19 r 2{3 { i P-1 . 22 23 24 25 26 27 r'F3 z,. An R inion Bvva n SIT "A' A, portion of Parcels Se-enteen, Eighteen, Nineteen. TUentv-Two, Twenty-Five, Twenty-Sight and Twenty-Mine as described . in deed to Contra Costa County recorded_December 9, : 1955 in Book 12652 at page 5,70 of Official Records of Contra Costa County; State' of California lying within the Ranchos Sari Miguel and San Ramcn being a strip of land 44.00 feet in wilith, the center 'Line of which is described as'follows,. Beginning at a point on the -center line of 52,00 feet ,in width right of wav, as described in the .Lis.. Pendens,, Contra Costa County Flood r4ntrol .and 'Water Conservation District vs: Walnut Creek School Oistrict of contra Costa County, et ali recorded December 24, 1969 in Book 69031 at page .163, records of said County, which bears north 350 091 44" east (record:N 350 081 27" tY 99.36 feet frau point T6-19 as, described in said Lis Pendens, thence from paint of beginning south 270 28' 24" .west 132.85 feet; thence southwesterly along the arc of a. tangent curve, concave to the southeast .'loving a radius of 334.00 feet 'through .A central angle: of 284 371 3411, a distance of 3.65. 37 feet,- thenar► tangent to said curve south.10 09'. 08" east.50.96. feet; thence southerly along the are of a tangent curve,. concave to the east having a radius of 417:00 feet 'through a central angle of. 120 171 . 09": a distance. of 43.70 feet; thence, tent to. said curve., south 130 26' 17" east 578.83- feet; thence southerlrr frig the 87CC ..of, a tangent c�urue,.: concave to the wgst ,h,.avfN a radius .of, 0':00 felttrh , central ' €�f 3.x..`13 .,SS's A, Is `r 54i`46, feet; thence tangent t6 `d4id: curve south• 120 121 19" east 221:42 146t;.. thence southerly.' along the.`.;arc of .a tangent Curve, .concave . to the west having a radius of 3640:00 feet through a central. angle 'of 110' 45' 10"x,Ii".clistance of : 746.65 feet; thence tangent to said curve, south 0,11 27' 09" east, 84,05 feet; thence southerly along the arc of a. tangent curve, concave .to the west having a radius of 9S5.00 feet through a central angle of 200 43" 050, a distance of 345.33. feet therm tangent to said �.curve..,south 20° 151 .57" west 78.60 feet; thence southerly, along the are of a tangent curve, concave to the east having, a.radius of 373.00, feet through a centtal .angle of 280 041 48", a distance of 182.80 feet; thence,tangent to said curve, south 7° 48' 52" east 540.95 feety thence southerly along the arc of a tangent curve, concave to the..east having a radius of .5080.00 feet through a central angle of '10 371 l.3", a distance- of 143.66 .feet; thence tangent .to said curve, south 911 26" 05" east 85.21 feet; thence southerly along .the: arc.of a tangent curve, eve to the east having a radius of U50.00 feet,through -a central angle of 80 061. 55", a distance of 162.88 feet; thence tangent to said carve south 170 33' 00" east 972,85 feat; thence southerly along,. the arc of a tangent curve, concave to the west having a radius of 400,00 feet through a central angle of 160 551 44", a distance of 118.19 feeti thence tangent to said curve? south 00 37' 16" east 13.5.16 feet thence ,southerly '.along the arc of a tangent curvee, Concave to the west havinct a radius of 935.00 feet through a central angle of 40 24' 45", a distance of 71.83 feat; thence tangent to said curve,. south 30 46' 50" west 130.82 feet; thence southerly along the arc of a tangent,curve, concave to the east having a radius. of 398.00 feet through a central angle of 170 21' 22 ra eiistance of. 120.56 feet; thence tangent to said curve, :south 1.30 341 32" east 338.79 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 29175.00 feet through a central angle of 90 30' 40", a distance of 482.23 feet, them tangent to said curve south 210 05' t3" .east 04.79 feet, theme southeasterly along the aro of a tangent curve, .concave to the northeast, having a radius of 3645.00 feet through a central angle of 9° 30' 15"., a distance of 604.65 feet; thence 'tangent to saiA curve; south 32° 35' 28" east 1547.08 feet; thence' southeely along .the arc of a tam ent curve, concave to the, west having; a radius of 769;00 feet through a central, angle of: 22" 59' O1", $..distaff of '308.48.feet; thence tangent to said curve, south 9° 36' 27" .east 121.63 :feet; thence southefly along 'thearc of a tangent, curve. concave to the east having '.a radius of 374.00-feet' through a.central angle`of 24° 06' 37", a distance of 157.38 feet 'to. a point in the easterly line of Parcel 29 as described' in-the hereinbefore mentioned. deed to CContra Costa County. (12652 OR 570) ,: said point to be hereinafter: referred to as Point "A"; thence continuing : southetly along the arc of' said curve.with 'a. radius of 374.00 feet,' through. a central angle of 10 .091129"., a distance of 20.51 feet; thence tangent-to said curve south 360 52' 33" east 50.00. feet tothe terminus of said 44.00. feet in width strip of land'. . Said Point "A" is further described as bearing north.4° 09' 00" west' 223:56''feet along. the easterly line and. its northerly prolongation of Parcel A as said parcel is shown on the, mao.of MS 845-81 filed May 23, 1984 inAlook 110 of Parcels Maps 'at page, 24, records of cr ,tra rzsta County: EXCEPIT43 TAVMFYCM-all of the above 44.00 feet in width strip of. Land lying outside of said Contra Costa County Parcels (12652 O.R.. 570) . ex:sr s:t6 Exhibit "E" 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 Raman 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 KL:DRA:eh G:1GrpD&%\Rea1Prop\EBMUD PipelineU00302EBMUD ComrnonUse SoBroadTunnel.doc Page 1 of 6 10123/2002 10:01 AM Exhibit "E" 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'l) 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, nonexclusive 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 EBMLTD enter into this Agreement. AGREEMENT L 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 KL:DPA:eh GAGrpDatalRoalProp\EBMUD Pipelinet100302EBMUD CommonUse SoBroadTunnel.doc Page 2 of 6 10/23/2002 10:01 AM ' Exhibit "E" 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. KL:DRA:eh G:1GrpDatalRea1Prop\E8MUD Pipelinet100302EBMUD CommonUse SoBroadTunnel.doc Page 3 of 6 10/23/2002 10:01 AM ' Exhibit "E" 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 Propertx 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 extreme 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:ch Cr:\fitpData\RealProp\EBMUD Pipeline\100302EBMUD CommonUse SoBroadrunnel.doc Page 4 of 6 10123/2002 10:01 AM Exhibit "E" Common Use Agreement Control may make by reason of such matters. EBMUID 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 Assimnent 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:\GrpData\ReslProp\EBMUD Pipeline\100302EBMUD CommonUse SoBroadTunnei.doe Page 5 of b 10/23/2002 10:01 AM Exhibit "E" Comm©n 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, By Secretary of the District Silvana B.Marchesi, APPROVED AS TO FORM: County Counsel By District Counsel KL:DRA:eh G:\GrpDntz\Ka1Prop\EBMUD Pipelinetl00302ESMUD ConunonUse SoBmWunnel.doc Page 6 of 6 10/23/2002 10:01 AM �►, `r;y t , t .` '�;rV• r.♦iC i�'�t'1'+'4i�:��."�w',".`,_ '��k1 i..'MiVL;IY, �e ' ..+.�1�., ,. ..".�'r f EXHIBIT 1711 . RS,MING RirOUESTED BY J MMX X CORM COSTA SANITARY DISTRICT AND WHEN RECORDED MIL TDs ' Central 'Contra Costa Sanitary District 5019 Imhoff Place Martinez, CA 94553 Attn: Purchasing ; GRMT OF EAS84EXT' CW TNI AGREEMENT made and entered into this da of , I�.� Y IM,, by and bstwoon ontra Costa Coun , a political subdivision of the ' State of California ("Grantor") and Central Contra Costa Sanity a District, a public corporation organized and existing under the laws +'he State of California ("Grantee"), {rfi ' THAT the 1rantor, for a good and valuable consideration, the receipt and sufficiency ,whereof are hereby acknowledged. hereby grants to the Grantee and to its successors and assigns perpetual non-exclusive easements and right-of-way, as described herein and in Exhibit One, for the purpose of '+ constructing, altering, replacing, repairing► maintaining, and oporating '. sanitary sever pipillnes and appurtenances, as the Grantee may see fit; in, under, along, and across that certain real prrporty described in Exhibit Orae. ' WITH respect to the exercise of the rights herein granted, the parties hereto agree as follows: 1. The Grantor grants to the_ Grantee non-exclusive "Surface Access Easements" providing the Grantee the right to use the ground surface ^� of the real property described in Exhibit One, for all purposes necessary and ancillary to constructing, altering, replacing, repairing,, maintaining, and operating sanitary sewer pipelines and related sever facilities, including, but not limited to, access for pedestrians, vehicles, and equipment of .ail varieties. „044", ; Z. The Grantor grants to the Grantee "Sub-Surface Facility Easements" ;s.. as particularly described in Exhibit One which provides to the Grantee the right to construct, alter, replace, repair, maintain, and operate underground sever pipelines and related sever facilities ` . In such configurations and in such sizes as determined by the r' Grantee. The Grantee shall enjoy full use of the easement as provided for herein. 3. Both the "Surface Access Easements" and the "Sub-Surface Facility Easements" are perpetual and norrexclusive. However, any : "Sub-Surface Facility Easements" granted by the Grantor to any a, v „�' ♦fl'' WI�i t�7` ` '�Y�a�r•�S!'a ,� .,r ;' ,•Pl"lit ; y , F±j��r' y'A/�� .F�,, w. t, "� 'l'1.i`s�t4 x f �.�"t N)i` � `�rY�',t�����' ;Y i,tid.q%�,'ti• yr .�,r Y� "11 �7+,��i'j�f fir'.,,•,„ ,' rr,�n:'r.+j.'4T?ar ,s4'M��S�,rJ`, t y� ylrr ,"t r:�'� '3'r ,a �' S'Y�'�$i,14L�� : w •.t 9 �+� !'#�i '„ Vt,{ �' � ",ti X41 ��'dyj�y yr , � r°` ' ' {• dr �"i F + 4! t1 '.,� � }�� ., r +f,P'R'},•,t,,�Y i+. �..t? / ''t r ,'T " j. niNO "Iryj,•'''.i"r''•('y ' 'yr"'•y 7 i�/,%iiisN .V `tw. tl,,,"Y'',` ';ti .F„ br'�� ,�,/' + M.'tiMt*W�' ;;4 /.}f. . "7•ti y.lt :7 ,+v t r ! , �' trr e�a"h t +'f'.# •r / ;'a�it'ii' ��ii 'ryf .Y`r• J +�3: '� .tY '` l''�J�i+ii '���' ���H'�, r r ��„�r.��'i�'�s.�°t' �%, {�k c.'""+ •Fir- ,1�Y ;�Y':.r►�1,f'� d,,.,N+. �yrr� �,r ,y�'7�d, .i ,��y� '�J+f K gel 'f1'#a .. rS' �•:. ' ^ ., ' •, :;•'^T �K. d:':a: ' s I • r "user" other than the Grantee subsequent to this Grant of Easement and which overlap or overlay the "Sub-Surface Facility Easements" as described in Exhibit One shall require the "user" of the subsequent easement to enter into a common use agreement with the Grantee, approval of which shall not be unreasonably withheld, which shall contain, at a minimum, the following provisions# a. The "user" shall remove or relocate their facility in a timely manner and at no cost to the Grantor or Grantee as reasonably necessary to accommodate the Grantee's right to construct# alter, replace, enlarge, repair, maintain, and operate the .•�- Grantee's pipelines. C b. When the Grantee determines to undertake a project which shall necessitate the removal or relocation of the "user's" facility within the Grantee's "Sub-Surface Facility Easement," the Y �, Grantee 'shall notify the "user" of the need to remove or relocate said facility.. The "user" shall submit a removal or relocation plan to the Grantee within thirty (30) calendar days of receipt of notice to do so. The Grantee shall review and .comment on the plan within thirty (30) calendar days of its receipt. The "user" shall modify the plan to incorporate the Grantee's comments and resubmit the plan for Grantee's approval. The approval by the Grantee shall not be unreasonably withheld. Ce My damage done to the Grantee's facilities by the "user" shall be repaired by the Grantee and all costs shall be paid for by the "use.r." The "user" shall provide a bond or other surety acceptable to Grantee on or before the execution of the common use agreement by the Grantee, in a sufficient amount to the Grantos as a guarantee that the "user" shall remove or relocate their facilities upon notification to do so by the Grantee. d. The "user" shall defend# indemnify, save and hold harmless the Grantee 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 "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 the Grantee, who shall make good to and reimburse the Grantee for any expenditures including reasonable attorneys' fees, the Grantee may make by reason of such matters. "User" further agrees that the "user" shall save and hold the Grantee harmless from any and all damages arising out of inverse condemnation concerning such matters# save that the Grantee shall be responsible for a share of liability corresponding solely to the actual percentage of the cause in fact of the sewer facilities as deliberately designed and 9/26/8611 �2- ;i X�. .,,I ,. , ,y• ` . e+ i1+'r qs,.•YIp `0•Rl,."+rrt'rf. ti, ��r�N: , .i�r..+@w.+•t/'{J•. I T.i. i•{%* i jt'yY.r,t ' 'J»#;';+t` d� � Mi', �r'�4' �r I�r'b•;t' ..+.,�{:,+ hF`'V r`f�' JY .'q'+•�'t",''t f$.�'t�i)'r y�. 7l' t f� •trr7, r'• \. I +r .t i3',i, rt+ Y 'lt• 4'7 ',typNaJ•�P{'+I fij {, :�' 17+,:{�,k{1,,,4+� '•, '• Y , 6 r R i, it i s .a d,i�1gy,�F•,t I,/+V�ti I r• to ,r +',� „��. ('' + jjrr�r ', .. ,� .,'1•+� !°±'' r';yy}},;;,. ,' , ••, ,.+.{}tbt,,+1, r'I•;Ii,}r� a,+' •rr�`°?ll!�/ w h..• Y i,. '.,,•,�•t; 't;;'7 + I J ''' ,' �t"• ',•fit 1•, 'Y ' � w�(M 1 YI+ °`J r , r tl.. M..�}+•, � + y ; ..� '{f M• 1, r, h .��..•�/ N`}9i:++.1''µ.. , 'r•. �'•,'t, "•� } ./T t nl• '{' :"� + ,na Y f ! �. ,�• r.. r :'4C,'+���y'R��.','��Mri'�}H!''�tY�•�f/.:j,�& ��',ti,'/, � �''.) '� �. .i .q;, �, ,t �'^ y i, � � .,. .�..,, �yt, ",,+,JYy .J"":Ciik:•!^t� .r�•i't1wN+wY';"rry+,' , t constructed. w'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 the Grantee ano its officers and employees. d. The construction of additional pipelines beyond those presently planned or the enlargement of the existing or planned pipelines shall be considered an expansion of capacity. Prior to the Grantee's use of the easements described in Exhibit One to expand capacity the Grantee shall submit plans or other appropriate documentation to the Grantor for approval. Approval shall be limited to a determination of interference of a permanent nature `-�-- with the Grantor's use of the property as described in Exhibit One. L The approval by the Grantor shall not be unreasonably withheld. The Grantor shall provide comments to the Grantee in writing within thirty (30) calendar days if Grantor believes said expansion • unreasonably interferes with the Grantor's use of the property described in'Exhibit One as provided herein. S. In the event either" the Grantor or the Grantee undertake construction or any variety of excavation within the easements described in Exhibit ane or immediately adjacent thereto# said party shall reasonably notify the other party and give said second party thirty (30) calendar days to review whether the proposed construction or excavation may impact their facilities or operations. 6. The Grantor is considering among other things, the possibility of developing a transit use such as an exclusive busway or fixed guideway system which may require the Grantor's use of certain portions of the real property within the areas described in Exhibit One as the "Surface Access Easement" and "Sub-Surface Facility Easement". The Grantor retains the right to the reasonable use of all of the real property described in Exhibit One as long as the use is , compatible with the Grantee's easement rights as set forth herein. The Grantor's right to the reasonable use includes the responsibility of the Grantor to maintain at the Grantor's expense all . real property, under its control, as described in Exhibit One and any immediately adjacent real property owned by the Grantor. •,.ompatible surface uses by the Grantor of the "Surface Access Easement" shall include, but not be limited too landscaping, fences, surface parking; -trails, roads, streets, other utility facilities specifically providid for elsewhere in this Grant of Easemento or othefi paved surfaces for an exclusive transitway. Uses which are 11111 shall include, but not be limited too The Grantor also cons ars- YT 51e use the placement of noise or retaining walls within the property described in Exhibit One. It is the intent of the Grantor not to locate the foundation of a permanent wall within twelve (12). feet, and under no 9/26!66/1 -3- '` t• yy,, t.t•,"1 p. "iJyi; �j t'N= *• �y, ♦ ��;: .� �,fP , .: �1'; .` J '� Ti,°a� ` ' 1!.` y`M..�j R♦ t!'V)i.t }r11 ` ����Y 4�1'•.. }j•+ . ' ty t t. •� ` .M!.tY1 �+`•{�•y, i•�c�';y`. ( ..� .. ..+• :jai' r,,+ 'f'+`•+V i(j it t 'r, ',� ',rx ��,k' i i,. 'i4 StE•. ,l! 17•'aw'+.,j:•�•. ,' 4• t , '• ,� •r yr , '�,}`Y•'Y SIr<'�'!�`�,,: ( `+j r i( Y 1+ i , ,•}ti, kdy+t y .'.'�S'4",•�,•,,, , • ', .,, a• r`r, Y�e �y ,: � �{i •'1 �, .'++•,� a„��h.�,tyy +tt,y' r;ft 4` ,. ., G yS,y ' t,i1!,.!' ,#.��t�';� r + • '+ '�,.♦J. , l/ t13+(`'(,' C, t+ .+,»",6, y,rt"J` y�. T�a �YS 'yr.,�( Tr ir�1.A�Y `�% H Y.,�. { t�'rb.,,d ,,,�• r , nw t, ar. �I ..,...+�r..w..•w,sr++v+t .,.. .,..:r.w,yd. M, r ..e.r :�. iti r w ti., ..rq.an..�m.o;.,3�i:4:'.�. , r1 t circumstance closer than ten (10) feet, of the center line of the Su • 1i Easement" as described in Exhibit One. The Grantor also considers compatible uses of all of the property described in Exhibit One as including the placement of transit station facilities such as loading platforms (of a minimal nature) C" and canopies or the placement of rails at crossovers and transitions over the "Sub-Surface Facility Easement" as described in Exhibit One, as tong as -&11 reasonable efforts aro extended to minimize such LAD overlay. The Grantor agrees that in no event shall the rails for such a system be located over the G'rantee's pipoline for more than 300 uninterrupted feet. „, • 7. The Grantor is considering among other things, the possibility of 'devaoloping a transit use such as -an exclusive busway or fixed guideway system which may require the Grantor's use of certain portions of the real property within the rens described in Exhibit One as the "Surface Access Easement" and "Sub-Surface Facility Easement." The Grantee proposes to construct, alter, repair, replace, maintain, and operate future sewer pipelines within the easements described in Exhibit One. Special protective measures may be required for the Grantee's proposed sewer pipelines. The Grantee shall determine and provide the necessary protective measures at the- sole cost and expense of the Grantee as long as the Grantor's proposed transit use is located outside of the "Sub-Surface Facility Easement". If the Grantor elects to overlay the transit system on tho "Sub-Surface Facility Easement" as provided for in Condition 6., then the Grantee shall determine if additional protective measures are necessary and the Grantor shall bear the full cost and expense of the installation of the additional protective measures. In the event the Grantor's overlay of the transit system on the Grantee's "Sub-Surface Facility Easement" requires the relocation or reconstruction of the Grantee's pipeline, laterals, or other facilities, the Grantor shall be responsible for all costs associated with the relocation .or reconstruction. The Grantee shalt act as the lead agency in the relocation or reconstruction of the Grantee's hewer facilities. The Grantor shall reimburse the Grantee for all of G'rantee's exponses incurred in such relocatias. or reconstrucion. The Grantee shall hold the Grantor harmless to the maximum extent allowed by the law, frau any and all claims, costs, and liability for any damages to the Grantee's pipeline, and consequential damage resulting therefrcm, due to the Grantor's construction or operation of a transit system or other surface use, to the extent that said damage to pipeline was caused by Grantee's failure to design and construct said pipeline with the necessary protective measures consistent with the surface uses and construction of the facilities associated therewith as set forth in Condition Nos. 6. and 7. of 9/26/86/1 -4- mom i say..• � '• r.�`r �••r y}i.' �+y�r,rj�.t V :'1"' . ; •` rt' .,/�'j.�.`.i,'••'' / • artlir'r.t5 ••�*'7+r• .,fir s,r 1 tit. W.P. ', .err ori,, y't,,;•' •`. � rr,It.a .ar , '`r ' ,%i.rd;lrTF +;5.'1r'+t�+'�}� �+'/Wf'�i9.°.:+i ,+. ' ; ^ �§'a °ak'r °Y i r r, •i ng,'V' •� , i� .. •'S! '�tY :Y �id�`�,"ti it �,lr.�•i•,,1, .,�M "�.p� +rqy'°MM,tyyyl?"�!(.�,W.f�r(yle�•�y;{[rri,r.' r ,�•T, �tS'y+�.'�+'►r'tt'"'w1�1,�'y�►"' y„`r.",/' t�":fl: ,�i,i' ,.• t!;t.ja. T4 _5.,',; ( ' 4+ „f�fj��yyr.,•''jti r I , ;M;..t;1 +'. • �� . `:" `r' .{N l7Yi)u Lf'tN'�;�. ++y ♦w 4 ri' , • ' , •' f PS;.�I , • .S a*;.° 1 � 'r "`.r,.... •i r�ly;vi;.y(,� ✓r� ' 'i !.'.r '° 't� v ', a �tr' +(�, !r 4.`"'• �.y Area /4 N�1�3 �7 '. ��T•��,(Jj�,���;,�.t r,ry• *, .P • t��r •'}�r• �r Ay'l�rl,'r. *;�. t r ` • ,1!7�!, •''K'•+'•y'{J,�tWj, r i r.'t is i" 1'ri ,•.iti,'• , ••t. 1. r .S, r, r r 1 f �• f 't r 7 '. � t 14' zti•'++r`i�'ii ii'?, ) .1,�.r ,,' r fit, ''p',"t"�{��{�� ,5 i15; a: . r{ r, jl;.i '�4• YI .y ,�y r•' C ;,:r y. 11„'1�`rAn yyfT,,• 'F , ,'h „�• r%��lti, '{'' r r J .i{{ 7. �.•I ,' 't' ,',t'yrf `y'idr � r t • 1" �Y }* i' r oti++rw.l6rY 4tglxrla;lWi1.�`L tvw�y^ t ` 3'' ,y';5 ' Nt '�ri•r•.b'«w',w 'b;+, ,r«+, Y •lay+; g rN�.,,. r + • this Grant of Easement. This hold harmless condition specifically shall not apply in any event where the damage to the pipeline or consequential damage therefrom results from the negligence of the Grantor or its contractor or any agent thereof,. or from construction or surface uses inconsistent with the terms 'set forth in Condition Nos. 6. and 7. of this Grant of Easement. In the event that damage to the Grantee's pipeline occurs due to the joint negligence of .the Grantor or its contractor or any agent thereof and the Grantee, by failure to design and/or construct said pipeline with the necessary protective measures, each party shall be responsible for said C.+a portion of the damages in direct relation to its share of actual W fault. 8. If .the,: Grantee performs any work within the limits of the 'real property described in Exhibit One, the Grantee shall restore the ' surface. of the ground 'to its condition prior to the commencement. of the work at the Granteets''sole cost and expense. 9. If the Grantee proposes to do work of a non-emergency nature which -may interfere with the Gr'antor's operation of tho transit system the Grantee agrees that, prior to start of that work the Grantor and the Grantee shall enter into an agreement providing a work plan and , schedule which minimizes the effect of the work on the operation of the transit system. Interference' shall be defined as any action requiring termination or limitation of revenue service and would Include any excavation, interruption of propulsion power supply, or penetration of the transit corridor by construction equipment. The parties shall act in an expeditious manner to reach an agreement, r� and shall not unreasonably delay the Grantee from accomplishing said non-euargoncy work. In the event that either party identifies an emergency situation, ":X' said party shall notify the second party Immediately of said emergency situation. Emergency shall be defined as a situation N which causes discontinuation of the operation of the Grantee's pipelines or of the operation of the transit servicer or a situation rl+ which presents an immediate threat to the operation of the Grantee's pipeline or the operation of the transit service.' M emergency shall additionally include any rupture, leakage or ether damage to the sewer system which creates a present or an immediate threat of creating a health hazard or dangerous sanitation condition and where k the •hazard or dangerous condition cannot be corrected by immediate measures not affecting operations of the transit system thereby ,::,: allowing for the permanent corrective measures on a non-emergency basis. }` In the event of aft emergency situation, the Grantee shall not be responsible for any loss of transit revenue or other damages to the Grantor resulting from the inconvenience or interruption of service 14 on the Grantor's transit system, so long as the Grantee makes every reasonable effort to immediately alleviate the cause of the emergency situation in a manner which minimizes the impact on the Grantor's transit system operation. �+ bt '9/26/66/1 •5• 3, ,r f!{�1, w IY. .'.., .t,I+ '/!, k � Ji�iK'+4•I'�'. +J•!. ,. r� `'rr N a�by+` ,•�,1..,,, 1 ;,;„'.�d.*ar,'.Y;.•.�►'t;r 4i'!' 'Pr, I. �'��7:tib°•%��`V � '•4''s• :� 1.1 t w 411 l I.+:2''a,d•;b.rf�S ' +47nM, Y'kh'.` •t+ �,"}: t�I+{ ,w�y1W + r .Ij, : f,�•r,`ti« t,�:}Y wr, �, 'r$.Y•f•r•, e. „�: 1 I'• tp,.,Ir�r{l :. r, I/, �, 1 ��;'!. ,v,�'x t�,�r`� fi+�•i�'• �, ','�`'' •` ,T;;•' ;v�v'+i'•�t" k, � •n•��`1,r`�; •/t�t'•�`?* r. .y'y�!< ��i�9,�r; '.�ig' + 'tifi��'4+�',�.,'q. '�,.• �,�.,,i.•Y'6�+1p?t, 4�y1f. �t'A: {,„ .,' �,. ��:i•� } .11.. h' ,;f".y'W ��t;'g° �.4ir ,. ^�Iy+{i'!y� /+ a �s�'�+�•+•';�*li°��� "!`'�f"�rr• ! r, � �Mr' •` 'r! ' "+'v +tl�t• rt Nj'f • • � f J'.. ` (if� 1 t•r,, 1 K f, . .. .��',,� r a.� :�".�' �^a•R1'�'ti+y"1 (,3h���„1 ,F`Ac°9K� '`Ir" id�:• r +�3 •.� d{~+ 'tr },s j{' ti•7.1,+?�! y , ! f � .'' .�$ t 6 /,:.Jw`' ;'' q �.• ,.0 •s� �;• :;�. �yj'.4�;y�g7�:7#; �A'V;l1S�,��+; y'1��!k,4'�tly.r .Jt. 1n�.�•',.,#.,'�."(.}s�,���'•.a lely�+,t•af+:tg�tn;i�.7�tQ''� ,�rq�,"1�``�• '�. ' 4•X•"R'S'/,'. .y . +�.�d � ;.ait,�,t .ilw ••h..,�w',�, t t,81Y.L1,•;(�� �+'q%yTI!... ✓.;. P. r �.. •rte .T�"' i;ti*Y1•w/�i�4ir.r. ' '�••i r ...o. .. . ^R+.' %vIAKAW7.4'.w i•:I 10. The Grantor and the Grantee shall require all contractors or contractors assigns who shall undertake construction on any portion of the real property described in Exhibit One to list the other party as an additional 'insured on the contractor's project policy and further require the contracvor to indemnify both parties in a like mariner. 11. The description of the easements contained herein aro based on the best available information. when a more precise location of either ,. 9xt#ting or proposed pipelines have been determined by either field :surveying or 6Uiled engineering :data the Grantor and the Grantee ---- :shall .aff • ."an _adjustment , (increase and/or decrease) to the w sas m ints-.pOovidod for herein in order to produce the final easement CA as fntended by this conveyance, in 12. The Grantee shall defend, indemnify, save, and hold harmless the Grantor and its officers and employees from any and all claims► costs, and liability for any damages, injury, or death arising from or connected with the performance of this Grant of. Easement and the design, construction, operation, and maintenance of all sewer facilities currently within or which may be constructed within the easements described in Exhibit Ones due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of the Grantee or any 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 Exhibit One and any Immediately adjacent real property owned by the Grantor► and shalt make good to and reimburse the Grantor for any expenditures, including reasonable attorney's fees, the Grantor may make by reason of such matters. The Grantee further agrees that the Grantee shall be responsible for any and all damages arising out of inverse condemnation concerning the design and construction of sewer facilities in existence or to be built within the easements described in Exhibit One solely to the extent of the share of the 'damages proved corresponding to the Grantee's actual portion of the ovor+!ll liability. The Grantor shall defend, indemnify, save, and hold harmless the Grant" and its officers and employees from any and all claims, costs, and liability for any damages'► injury, or death arising from or connected with the performance of tnis Grant of Easement and the design, construction, operation, and maintenance of all surface and subsurface use facilities, solely or jointly owned or controlled by the Grantor, including the existing condition as well as the future maintenance of the surface of the real properties described in Exhibit One and any immediately adjacent roal property owned by the Grantor, due to or claimed or alleged to be duo to negligent or wrongful acts► errors, or emissions of the Grantor or any person under its control, including but not limited to liability arising from injury or death to members of the public using its real property, and shall make good to reimburse the Granted for any expenditures, including reasonablo attorney's fees, the Grantee may make by reason of such matters. The Grantor further agrees that the Grantor shall save and hold the Grantee harmless from any and al 1. 9/26IE811 `�`� ..........»...�...w..swr.w. y�y4�Aww+r7/`.+.rrs....•.+�.r � �` tt. : . r ' ••, „ , w 7 :�:ate L r i K ! f rr ♦r ►t+ ► rr rr. r r• r • r e r r � Y ♦ ♦ w Y w • `X ! a • = 4 R t Y t '. f w •f f !w • f /t 4 { •ice:'».•.J.r w�...:.. � J R 4yyr+. (`�+I 1J`.1�d�� s� i Fr��,,ff � � ���M 4tpj� j l •� J # t� J!' t � (y`,,,Pt § fh`tyyyrt,4�7'��.L .r�. r � • + l`r 1 w,� 'kf7 /�3iy� �'�� f� �yt Yh• it.�.^ t i r� {1:1 3 .tlG�� 1��)l'.{/,�1l. rt LY'r}t tr l����{�... t�r'. �. � tr/�� t .�. ,#•t`Y w�d'{�Va,;n�' y" r, � t i �f�' a ���f 7 "+1+] tWJ'F MT Wang AA.j q4;•fP. �{'"x:7 4'<tY F''�;irff, •tn S;s. J 'i.`� .;��4 "r R ")u" r.?'J'��w ra ^S N� 4 t, � ��"� Jtr f Ytitt f, # ,� li Its. i� N �..'��.��j�4tl�M���R� ItRl ��+��y�yt�j^`�i ? 'is��..Xt if r"�1.f r f. .. Yay +" x: •f,{''r•�,,;7`"' ArAh C�3at^#, '7yj ! ' + i t7. �l ti. �,�{$��� � Y � � `� ' � � 'Y. 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',""�.�"�l� T➢4x `rrt'tr:[Y� � '+`! 1 r •` '., .� : � }• �...} t.« r n;t.: r �._. � ^•'�'t 4., ,t • ;w•;•tY+t,d+n< lat..r .e s. �+M_'1� :r►14�fv�1t�a' �� JY' r,(''+.i�r��a hka re s.�' yrr. f>r � �*``` 4lJrfi� ,t. x, 'e r a i ' a Y y1Tt Yf F w� ���r*' *�`Y r<"i"lrlfY}1� M'"rJiiyy, r �tr��� y jj��r�,+f��]S:rri?' r"�.{,jcfS 1.�. � •,�#, +n/,,+t�t" t""„rIti4C*�fyi,;"�*�"t+�1wt�' c � R�`y',ry� I•s fi f.,,��+11���Ga ,���ipp�Yy7�'�j?Yh'�.. �e'Irt�`�,y"y � ��+�r •y�,Pl°� {Ks++WJ��fj°' ` *� y' '`b � A'ryyij,�FG�,�/��A fr�'�` t�)y'd ,v t{J� + u �•.,C',d+Nle.r 7 r��r7 r`, s, i rs�+, 4 ta+if � ,+'+f � �f;�s �C '�+j`�� ztt��fi A L'�Y. yii��, •j "4,Yie�� 'N'�fj �'a'Z��i., i.', �+�� 1 jdr��.,.�,j' ��Jff �' �")# ��,+#���r,„,ll''iij .:., ri�,1 ,+ �� i'� ,y`� tkA} C��yf•. r, � r Y.�rYrf*k � jrrtl,�'). pr.�Ty�`q{ ,*�r�n r/ft*«�.��.��'�r4{'�+a�� F�.rt'�,� t#�'° -�ri�,ra,i4Y i f f ',xr +,•'Y�y1.r t.. lF � r� t f�T �'MMM�Y �,�� "eta,§,�6,'t�' fli.lt�,!'f}{f ".wr' fi,vFts.'`Ii �}1�"i' j, 'S..� rQ eft r� } „r l:. f k •f ► �+sfi • 't�31 :f:j �:`i'ftf„"1i.y.: !�,,fi. /�,r�)•dt+r +rzf,�s, .A}' �'r �•% *r' 1 r �;'�4 x,4�� t,e,J#fi �fid, '^. �j lei# k '�#' 4`e"{���t1�..'�✓'� `"r 4 r 1yy�,?f .+ � Y: ! +�'J i'�'' ./�7"-�j° ,��y^`w. .s'SP tlfi�a • rA tYi �•t�Yf"t} rrk+t /i ,y' 9� t. �S 1' f ilD�,I"• ,j P ri igY'�1ecJlerr'l%' 4l. v�rrL'•` tfI *�f�r.�, ,":4` I «n d F r ' -.;,'�`k . ifd'�u :,+./i •+µy y7 q �4 ��?,$ + g"iY y.*/:`.�+'a, �r�f !d {4 a1'�+� w4 r! vrt�'% RrR,•1t �,v�r'��r.� .'7M } �} M n �'r, I. � ' Ss fit... {�ye r �+�O;l,, �?:•'��,y� l,; � a .�! � �'tf��i��• 't.'�'� t e;`. ,c�j` y.' fy i ; r �: lI`� 'F,♦ f..lt �" ,�i S kfr+S`� ,r G iTjr"fr � ? ��'` j`S7j�'/�' !y'yy' r . W 7 ', .f 4� `a� �#� f ra !fid"t e,c• 1 }�tQ is d 2 y M+fi7�i r nt fi1"{y! i +rr f `�Z 9 ?I«�'E4 i f}!�,tx.! e•" tY�.. y�.d'rO�F: fr�f � l+tart ,.�OjiZ .I�!r�� if. �,tl� J�h }t / ;{<' +-q, t rY ,y,, } tr •i�i' �t;, j t� p,rw" ��.•ri t f r 1' ! + r,�,} ,Y.hf,. S�."L A. } �. r�14 {�/ Ilkrf:'j. C!J"t`/..�:''S.E S �1.���/r�rji;,1 t j.,xt�'$. �Y 'HYwiJtr:.d¢•.t.•t h { ,r�',.v ",S.�r,.,,�'}'�K�;t.4`«`5'���'1�?f.� t � ,.«�t�R}�� � �'Fr.ehy'yT„ ,..tt1�i JS�'M'�. {�k,{f' :.i '�, ♦ �j..n�",�r �Y ., t �x>< t .drf d"" tsitl S,r; >�i;!`ife '� .�i _rt1' �+ �,! i AF s �.. ,r i ,rtII'a �tLe,� (1�.�{3 vu.;g«.=. ,F FJS tr��'� � � ><'ff9 ���`jv:�f�i i,.�, #r {t,tY, �`r''r�.r't.S f� arPxlf.+r, red at�))���.��' ti4�"� �(`i.l•"��CiJ'�1Ta+{,.1pl F'+'� y.. t j," � `l �'Y%'+' '�7 ! 1'rn' �• �^ ,Pi•++{;�'t i�'t,} sF.+t., r'l a r".� r '� IY �"' x! ,? ;,P t�try,,.yyi;;.rJ1�t G i t ♦ 4.,���.f '�.MM!:l?e�•f{'y�r,,+fi(,iCn tNY b1'�1•+'.+.+•'»nYi'r�133! 4 •. ,.• ••xr di'y..na.wriw+l✓.wwir�7r,Y».:r.... ,M • i i .y OM s ' PARCEL SIXTY-CNE Portion of the 100 feet in width str ; of land described in the deed frau d Family Investment Company# a corporation to Southern Pacific Railroad Coapany, a Cal Ifornia Corporation, recorded -July 11, 1907, in Book 126 of ti Deeds, page 424, described as follows W : a. A strip of land 12.00 feet in width# the centerline of which is described a* follows: r? Beginning at a point on the northwestern terminus of said Southern �' • Pacific Railroad Com an 00 feet in width stripof land (126 Deeds 424), where said northwestern terminus of said Southern Pacifics Railroad Company 100 feet in width strip of land (126 Deeds 424)` intersects a line which is parallel with and 45.50 feet southwest of 71 the northeastern line of said Southern Pacific Railroad Company 100 l .. fest in width strip of land (126 Deeds 424); thence from said point of beginning southeasterly 35x.00 foot, more or less,- to a point on a l ine which is parallel with and 60.00 feet southwest of the °t northeastern line of said Southern Pacific Railroad Company 100 feet ^Y 4� in width strip of land (126 Deeds 424). a The southeastern terminus of said 12.00 feet in width strip of land shalt coincide with a line which is parallel with and 335.00 feet yt': southeast of the northwestern terminus of said Southern Pacific �r� , '• Railroad Company 100 feet in width strip`of land (126 Deeds 424). b. A strip of land 12.00 feet in width, the centerline of which is ' desdribed as followsa *,Yt •" •ti'4; ,y,�yv '' f F '�id"'6 i�i r'Yt",sZ,.'` r r�`ti J�,R, }F,T v,i�`ri�'r��'• s..,l'a * �� �.• ,, '+�°"s rr• `t NS"''�«'�'1, '��'�'�. ��+��,r Jf,b�@,r. 'K'irr ' �t���� �r:A.4K�i'�.i•�y :�4�, �. �, ! •t r� '7 t`,;��A'K�/�'•�i1t�?;,Jf lxy+�y�JPtir�,�'a d'r�} �; �'adiif� tki ,++"<+ �J r i 'h fir . •` r "''>�y r."J.� r�• fi.tj 4�? X1 yi.•rh=3F+ . $t!} r h r r �' �ld�� +ti H r �" • .'�.* Y tYtr�,t!{�iy'�y',N,td' i�+�. .� e •.r �`Tib aB r � '�� 7 e�it �R,�.r�!�J �'t.•,rYiR.,r,�.. 1 �' '�a +d*T�' Q t�r ri, r�,�t!aYlhLi ::. r j.li• ;��R r� �fk jqr" r i.•, ti,:Y,: }i41.Sh3 r; -, +! �r'�#;t{, .`�F .�e'' fj,l��trrj,j[:'�'!jl rYr.a;�",f� { 3t�• �} F i r. sr j,•.$. P . 4 �y'�,r � i'Y irl'1. •'�.1r-• rM h t '�'' ���t t • ri F. PARCEL SIXTY-ONE (Continued) Beginning at a point on a line which is parallel with and 335.00 foot southeast of the northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424)r at its intersection with a line which -is .parallel with and 60.00 foot . southwest of the northeastern line of said Southern Pacific Railroad Company 100 feet i'n width strip of land (126 Deeds 424); thence from said point of beginning southeasterly 381.00 feetr more or less, to o the point of intersection with a line whiffh is parallel with t .�,,...;•M ' 76.00 feet southwest of the northeastern line of said Southern Pacific Railroad Company 100 feet, in width strip of land (126 Deeds 424) with a line which is parallel with and 715.00 feet southeast of the northwest terminus of said Southern Pacific Railroad strip (126 Deeds 424). s The southeastern terminus of said 12.00 feet in width strip of land shall coincide with a line which is parallel with and 715.00 feet southeast of the northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424). c. A strip of land 12.00 feet in width, the centerline of which is parallel with and 28.00 feet southwesterly measured at right angles f rom the centerline of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds 424). The northwestern terminus of said 12.00 feet in width strip of land shall i:oincide with a line parallel with and 715.00 feet ;± •`'+.YyWa,.' "�Y�'�:.yy,�r�b,`l r �a .i yry�! ;(g•� /1°s_.f�•y`+�1,,�i. s. + �MG Ylyl�yjrp!'pl'.y�.t �' •r•.'�r+ 'ji. 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Glass, at 41, to Southern Pacific Railroad Company► a California Corporation* recorded December 8► 1906► in•.Book 122 of Deeds, page 271, described as follows: :`i a. A strip of land 12.06 feet in width*, the centerline ,of which is6"' parallel and concentric with and 28.00 feet southwesterly measured D -- ', at right angles and radially from the centerline of said Southern , Y ' Pacific Railroad Company 106 feet in width strip of land (122 Deeds , x 271). r� The northwestern terminus of said 12.00 feet in width strip of land shalt coincide with the northwestern terminusof said Southern a+ r' ° Pacific Railroad Company 100 feet in width strip of land (122 Deeds 271) and the southeastern terminus of said 12.00 feet in width strip .' of land to be on the southwesterly extension of the southeastern ' line of Lot 90, as said lot is shown on the asap of Tract 3843 filed ' on May 23• 1973► in Book 157 of haps at page 27, Contra Costa County ; . Records. b. A strip of land 20 feet in width, the northwestern line of which is described as follows: 'S • t Beginning at a point on the northeastern line of said Southern Pacific Railroad Company 100 feet in width strip of land 4122 Deeds 2715► said point being the most western corner of Lot 89 of Tract r •.A '!rs d�• ++ 'A�fd{4 �• f+fi A �: .4 "f9Y4+: D rNi+i•+ Ky+rr.%q,�La; ,'"7'.5. i°�! �+titt ++ywa.;•,}LVt '�ra.,is:,yr[' °d Yfj .} r+'f $ r pry. ,, i '{ �'✓y. +! t1'i+•,. A yr Ai t�4 it, y � t r ♦ � 4 t } ` �y.•.adr� t* d��.' h 5 +Y +f,Y ,_.(f�ff��, {� •� r`��.,3 i�' f I y y d wy:r t Do ww ffffp,,,, 1`+} rip, 1D t r Zc w r f r r e • . r '� j • � { p ♦• f" P� r t +'o�,y:��• +frit`r.�"'4.r� t. 3. .N i S r.d,+t t }Y..; '+s :.*. .'... 1 .4„' {• �« ....' m +.wF � ,. 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TI����s,,ya f�f,k'ti A71�t:+��.•_t$�fe•.r��' � '�. �)k "4{ `r,� "«f�/t"''`���'* r��y � '���1sY,(.'�}ry.+��♦�r �lrrrdt � ] "4 hl ,r f ,�y} Y l rFtµ, t✓ n At`J+"# Cyt YfVr t k tF4 ; e x^ p !tf' t.� krA t'#'� j l+13 R AA, P ,�*t ` ,�" y�,� �IM''�:'` �''�� k' �'` �Ikr �»�� � +ti «� �,a�r •an,l�,�T e� y e �i'yrM` 1' PARCEL SIXTY-CNE, (Continued) Beginning at a point on a line which is parallel with and 335.00 foot southeast of the northwestern terminus. of said Southern Pacific Railroad tompany 100 feet in width strip of land (126 Deeds 424), at its intersection with a line which is paral.lol with and 18.00 feet ,.._.. southwest of .the centerline of said Southern Pacific Railroad ' Company 100 feet in width strip of land' (126 Deeds 424)i thence, from, said point of beginning southeasterly 381.00 feet# more or less# to the point' of intersection with a line which is parallel ,� with and 27.00 feet southwest of the centirl ine of said Southern Pacific Railroad Company 100 feet in width strip of land (126 Deeds :. ri 424) with a line which is parallel with and 715.00 feet southeast of ;,y{ ` the northwest terminus of said Southern Pacific Railroad strip (126 `Deeds 424). The southeastern terminus of said 12.00 feet in width strip of land shall coincide with a line which is parallel with and 715.00 feet southeast of tho northwestern terminus of said Southern Pacific Railroad Company 100 feet in width strip of Iand (126 Deeds 424). PARCEL SIXTY-IWO The southwestern 28.00 feet of the 100 feet in width strip of land described in the deed from Peter B. Tsrkslsen# at ux# to Southern Pacific Railroad Company# recorded in Book 120 of Deeds# page 174. r4 91 Y 0 iT' r y ., .tkt+F"�i„,: ;.;r:v�=#r���.•• =x��.��{. '�+t..'�•t:,y :,�j+w��''!xA'�, ri ,t�"�,�j • .�, ;iry:.�r r+. '�;r,�t�,irf='�'��,r t y��'xti�t'`�it#.'+•�'. v*,�, t'�,tx*1: �s' "#�. x ,1 � 1,.. x�,rr�� �4`fti!'� _'*'��''x't..u;rsd3`a. y==•.�y' J .:•w14tikY'hS, q k 1 •r f i :Y s r v. . 'a"r'•' I'►i. fi..+.r I w.W t , . pr.. •♦r: ...�,.. 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Talk f„}w 4 iFAy�« i�. {.k ��'ser fr t G't""'�Vf� �+T rf�d.!> h¢'�+'.�'r 4d Lut��� � d' ! ; ti'f'•Fa 'I � r!*. ��",,,w# fir.'#� y"�f r'•v �` �+ £�+. r..:t, t't'ft`c+'ktt'! ��f rtw '"l�ft;.,J "' vltG�k+,�'ih�<'rt�r�'°. }'}•'Ai•a�++t�atsi!:wfn}f�,�^ta +P r t � v Tunnel Easement RECORDING REQUESTER 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 28th day of January 2003, 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("EBM`CTD'J. 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 `4SRTC"). 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" Wage 1 of 11 KL:DPA.:eh G:\GrpIUata\Rea1Prop\EBMUD Pipeline\10603EBMUD TunnelEase.doc 1/712003 10:38 AM EBMUPef County 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,,, .CBEs 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 thirty (30) 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 615-6247 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 EBMXJD'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 EBM D'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 EBMUI7'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 Page 2 of 11 K.L:DRA:eh G:1GrpData\Rea1Prop\EBMUD Pipeline110603EBMUD TunnelEase.doc 1!7/2003 10:38 AM EIRMUD,�L County DU Tunnel 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. S. 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. EBMUD shall, prior to any construction, reconstruction, remodeling, or installation within the Property 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 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. EBNICJD 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 extreme 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 Page 3 of I 1 KL:DRA:eh G:1GrpDatalRea)ProplEBMUD Pipeline\l0603EBMUD TunneiEase.doc 11712003 10:38 AM EBMUD County Dlt 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 ff CCSD") acquired surface easements and sub-surface facility easements ("CCCSD Easements") from County in the general vicinity of the 'funnel 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 EBMt.7D'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. Page 4 of 11 KL:DRA:eh G:1GrpData\RealProp\EBMUD Pipeline110603EB U1" TunnelEase.doc 1/7/2003 10.38 AM EBNWD CUtintj� ' Tunnel Easement 3) When EBMUD 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 EBMLJD. 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. 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. 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 Page 5 of 11 KL:DRA:eh G:\GrpData\ReaIProp\EBMUD Pipelinc\10603ESMUD TurmelEase.doc I17I2003 10:38 AM EBMUD k_ County"IRA 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 one hundred eighty (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 EBMUD for all proposed improvements that will require excavations, drilling, and/or the driving of any type of piling(s) into the earth below an elevation of three feet (3') under the Flood Control Channel, and any activity that will require blasting and/or exploding (together known as "Penetrating Improvements"), for review and determination by EBMUD that such improvements will not endanger, damage, and/or interfere with EBMUD's facilities located within the Property. Within sixty(60) days after its receipt of said plans and specifications, EBMUD shall then determine what measures are reasonably necessary to protect EBMUD's facilities from the construction of the improvements, and shall notify County in writing of said measures. EBMUD shall be responsible for designing, constructing, installing, and maintaining, at its sole cost and expense, those protective measures made necessary by the Penetrating Improvements 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 EBMUD 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 KL:DRA:eh Page 6 of 11 G:\GrpData\tea1Prop\EBMUD Pipeline\10603EBMUD Tunne]Ease.doc 117/2003 10:38 AM EBMUD County—I,)rA Tunnel Easement event that EBMUD determines to relocate the Water Pipeline and/or the Water Pipeline Tunnel, 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 EBMUD, which expense EBMUD agrees to pay to County promptly upon demand, including but not limited to engineering costs and any legal expenses incurred to collect such costs. 10. DAMAGE TO GRANTEE'S FACILITIES: County shall have no responsibility for the protection, maintenance, damage to, or removal of EBMUD's facilities, appurtenances or improvements, caused by or resulting from County's use of the Property or of the SRTC or work or operation thereon. It shall be the sole responsibility of EBMUD to provide and maintain adequate protection and surface markings for its own facilities. Subject to the foregoing, if EBMUD's properly marked, protected, and maintained facilities are damaged by the sole, active negligence, or willful misconduct of County, County shall repair the damage at its sole cost and 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 Page 7 of l l RL:DRA:eh GAGrpDati�ReatProp\EBMUD Pipetina`,10643RBMUD TunnetEase.doc tn12003 10:38 AM EBllICTD County tq Tunnel Easement 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. 11. INDEMNIFICATION,AS-IS CONDITION OF PROPERTY: A. In the exercise of all rights under this Grant of Easement, EBMUD shall be responsible for any and all injury to the public, to persons and to property arising out of or connected with EBMUD's use of the Property. EBMUD shall indemnify, defend, save, protect and hold harmless, County, its officers, agents, employees and contractors from and against any and all threatened or actual loss, damage (including foreseeable and unforeseeable consequential damages), liability, claims, suits, demands,judgments, orders, costs, fines, penalties or expense, of whatever character, including, but not limited to, those relating to inverse condemnation, and including attorneys' fees, (hereinafter collectively referred to as "Liabilities") to persons or property, direct or consequential, directly or indirectly contributed to or caused by EBMUD's operations, acts or omissions pursuant to this Grant of Easement, or EBMUD's use of the easements, save and except Liabilities arising through the sole negligence or sole willful misconduct of the County, its officers or employees. B. EBMUD further agrees to defend, indemnify, save, protect and hold harmless, County from any and all actual or threatened claims, costs, actions or proceedings to attack, set aside, void, abrogate or annul this Grant of Easement or any act or approval of County related thereto. C. EBMUD accepts the Property in an "as is" physical condition, with no warranty, guarantee, representation or liability, express or implied on the part of the County as to any matter, including, but not limited to the physical condition of the Property and/or the condition and/or possible uses of the land or any improvements thereon, the condition of the soil or the geology of the soil,the condition of the air, surface water or groundwater, the presence of known and unknown faults, the presence of any hazardous substance, materials, or other kinds of contamination or pollutants of any kind in the air, soil, groundwater or surface water, or the suitability of the Property for the construction and use of the improvements thereon. It shall be the sole responsibility of EBNRJD, at its sole cost and expense, to investigate and determine the suitability of the soil, water, geologic, environmental and seismic conditions of the Property for the intended use contemplated herein, and to determine and comply with all building, planning and zoning regulations relative to the Property and the uses to which it can be put. EBMUD relies solely on EBMUD's own judgment, experience and investigations as to the present and future condition of the Property or its suitability for EBMUD's intended use and is not relying in any manner on any representation or warranty by County. EBMUD agrees that neither EBMUD, its, successors or assigns shall ever claim, have or assert any right or action against County for any loss, damage or other matter arising out of or resulting from the presence of any hazardous substance or any other condition of the Property at the commencement of this Grant of Easement or from the release of any hazardous substance in, on or around any part of the Property or in the Page 8 of 11 KL:DRA:eh G:\GrpData\Rea1Prop\EBMUD Pipefint\10603EBMUD TunnelEase.doc "MA 1/7/2003 10:39 AM EBMUD /Y County Tunnel Easement soil, water, subsurface strata or ambient air by any person or entity other than the County following the commencement of this Grant of Easement. As used herein, "hazardous substance" means any substance, material or waste which is or may become designated, classified or regulated as being "toxic," "hazardous" or a "pollutant" under any federal, state or local law, regulation or ordinance. D. To the extent permitted by law, EBMUD shall indemnify, defend, save, protect and hold the County harmless from and against any and all claims, demands, Liabilities, expenses (including without limitation attorneys fees and consultants fees), penalties, damages, consequential damages and losses, and costs (including but not limited to the costs of any required or necessary testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties and from and against the preparation of any cleanup, remediation, closure or other required plans whether such action is required or necessary prior to or following the termination of the easements), of any kind or nature, to the extent caused or contributed to by EBMUD's operation or performance under this Grant of Easement, or EBMUD's use, release or disposal of any hazardous substance, including all costs, claims, damages (including property and personal injury) caused by the uncovering, release or excavation of hazardous materials (including petroleum) as a result of EBMUD's construction, reconstruction, maintenance, use, replacement, or removal of its facilities, to the extent that such activities increase the costs attributable to the cleanup or remediation of such hazardous materials. E. The obligations contained in this Section shall survive the expiration or other termination of this Grant of Easement. 12. NO WARRANTIES: EBMUD understands and acknowledges that County makes no representations, warranties or guarantees of any kind or character, express or implied, with respect to the Property, and EBMUD is entering into this transaction without relying in any manner on any such representation or warranty by County. 13. ABANDONMENT: In the event that EBMUD does not install the Water Pipeline within five (5) years after the execution of this Grant of Easement, County shall have the right, at its sole discretion, to notify EBMUD in writing that EBNff-JD 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 Three Hundred Forty-Five ,Thousand and No/100 Dollars ($345,000.00) as compensation for EBMUD's quitclaiming said Property. In the event that EBMTJD 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"). EBMLTD 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. EBNIUD's failure to respond to County's Page 9 of 11 KL:DRA:eh G-.\GrpData\Rea1Prop\EBMUD Pipeline\l 0603EBMUD TunnelEase.doc 1/7/2003 10:38 AM EBMUD/ ,f— CountyW Tunnel Easement notice within thirty (30) days following delivery shall be construed as confirmation of Installation Abandonment. Upon confirmation of Installation Abandonment by EBMUD, EBMUD shall deliver a quitclaim deed (''Quitclaim Deed") to County for that portion of the easement so abandoned. Upon delivery of said Quitclaim Deed, all rights of EBMUD in and to said Property shall thereupon cease and terminate, and shall revert to and vest in County, or its successors. In the event of Installation Abandonment, County shall have the right, in its sole discretion, to require EBMUD, at EBMUD's sole cost and expense, to fill the abandoned portion of the Water Pipeline with slurry, or a similar solidifying or hardening material. In the event that County requires EBMUD to fill the Water Pipeline as just provided, 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 Three Hundred Forty-Five Thousand and No/100 Dollars ($345,000.00). In the event that County does not require EBMUD to fill 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 prepare.d 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 "tent, be held invalid or unenforceable, the remainder of this Grant of Easement shall not be affected. Page 10 of 11 KL:DRA:eh GAGrpData\Rea1Prap\EBMUD Pipeline\10603EBMUD TunnelEascdoc A 1/712003 10:38 AM EBMUD County—pl�H 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 _ 28th day of January 2003. COUNTY: EBMUD: CONTRA COSTA COUNTY EAST BAY MUNICIPAL UTILITY DISTRICT By By: Chair,Board of Supervisors Stephen 1. Boeri, Manager,Real Estate Services STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA ) On January 28, 2003 before me,John Sweeten, By: CIerk of the Board of Supervisors and County 1 rini tra oars oitrrarCosta 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) �� OWED �� FO acted,executed the instrument. 01 By: AO --- eputy Clerk V Office of 'en al Counse Form Approved(137/99) Silvano B.Marchesi,County Counsel APPROVED AS TO FORM: Silvano B. Marchesi County Counsel By: �. Pamela J. Z Deputy C u t Counsel ICL:DRA:eh Page 11 of 11 GAGrpData\Rea1Prop\EBMUD Pipeline\10603EBMUD TunnelEase.doc 1/7/2003 1:30 PM EBMUD County CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Alameda ss. On Jan.. 16, 2003 , before me, Marie C. Plumb, Notary Public Date Name and Title of Officer(e.g.,'Jam Doe,Notary Public") personally appeared Stephen Ji Boeri and Lynelle M. Lewis Name(a)of Signer(a) ' ,1 personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) mare subscribed to the within instrument and acknowledged to me that toialoe/they executed — — — the same in /hmr/their authorized r,om MAPJE C.Ptu*e3 capacity(ies), and that by VSslhw/their CommkNicn Z signature(s)on the Instrument the person(s), or �°rypublic- the entity upon behalf of which the person(s) Ahmods CV(h* acted, executed the instrument. LVC0ffMB*wMW23.2W6f WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public 4XRONAL Though the Information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Grant o Easement Title or Type of Document: Document Date: not dated Number of Pages: -13- Signer(s)Other Than Named Above: --0- Capacity(les) Claimed by Signer Signer's Name: Stpnhon J_ 'A P-ri and r,yn l 3 M r raw;a ❑ Individual Top of thumb here. ❑ Corporate Officer v..y Title(s): ❑ Partner—❑Limited ❑General ❑ Attorney in Fact ❑ Trustee El Guardian or Conservator i7 Other: Public or*ooration Signer Is Representing: EAST BAY Mi7NICIPAL UTILITY DISTRICT 0 1999 Nallonal NotaryAaaodeaon-9W De Sato Ave.,P.C.box 211)2•Chatsworth,CA 91313.2402•www.n tk)rAl vtaty.o% Prod.No.5907 ReoMer:Coli Toll-Free i "f r EXHIBIT"A" All that real property located in the City of Walnut Creek, County of Contra Costa, State of California described as follows: That portion of "RS 2090 Record of Survey of Former Southern Pacific Railroad Right of Way in Incorporated and Un-Incorporated Areas in Contra Costa County, California",recorded August 24, 1994, 106 LSM 7, Contra Costa Count:records,more particularly described as follows: That portion of a 30-foot wide strip of land lying below an elevation 111.2 feet MSL 1929,at its northern beginning,and an elevation 98.0 feet at its southern terminus,having an even slope of -0.3%, the bottom of said strip lying 30 feet below said elevations,the centerline of which is described as follows: Beginning at a point lying 77.49 feet right of Station 1453+48.40 as said stationing is shown on sheet 4 of said RS 2090; thence South 24°44' 01"East, 181.78 feet;thence along a curve to the right with a radius of 1200.00 feet,through a central angle of 9°26'04",an are length of 197.59 feet;thence South 15°17'57" East,388.57 feet;thence along a curve to the right with a radius of 1200 feet,through a central angle of 10049'59", an arc length of 226.90 feet; thence South 4°27'56" East, 129.48 feet; thence along a curve to the right with a radius of 1200.00 feet,through a central angle of 18045'28", an arc distance of 392.86 feet; thence South 14°1'7'31"West, 148.61 feet; thence along a curve to the left with a radius of 1200.00 feet,through a central angle of 27°36'10", an arc distance of 578.11 feet; thence South 13°18'40" East,258.78 feet;thence along a curve to the right with a radius 2000.00 feet,through a central angle of 2"40'33", an arc distance of 93.40 feet; thence South 10°38'07"East,446.49 feet; thence along a curve to the left with a radius of 2000.00 feet,through a central angle of 5149'43",an arc distance of 203.46 feet; thence South 16°27'50" East, 159.43 feet; thence along a curve to the right with a radius of 2000.00 feet, through a central angle of 2°7'56",an arc distance of 74.43 feet; thence South 14019'551" East, 102.33 feet; thence along a curve to the left with a radius of 2000.00 feet,through a central angle of 4°26'06",an arc distance of 154.81 feet; thence South 18°46'00" East, 111.59 feet; thence along a curve to the right with a radius of 2000.00 feet,through a central angle of 8°36'33", an arc distance of 300.52 feet; thence South 10°09'27" East,241.06 feet,to a point which lies 88.65 feet left of Station 1499+18.70 as said stationing is shown on sheet 7 of said RS 2090,and the terminus of the described centerline. Excepting therefrom that portion falling outside the parcels shown as"12652 O.R. 570'", "13115 O.R. 685", and"CCCFCD&WCD" as shown on said RS2090. Containing a surface area of 115,020 square feet more or less. THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE LAND SURVEYORS ---- ACT IN NOVEMBER.2002. � LAN® No.LS 4765 X p.3131Ca4 ,t R. DUBACK LS 4765 H:VOB-N JMS1256921IRNHRSEIEasement\Legallfc�tun�1st1.dcc EXHIBIT"A" All that'real property located in the City of Walnut Creek, County of Contra Costa, State of California described as follows: That portion of the parcels shown as 12652 O.R.574 on the"RS 2090 Record of Survey of Former Southern Pacific Railroad Right.of Way in Incorporated and Un-Incorporated Areas in Contra Costa County,California",recorded August 24, 1994, 106 LSM 4, Contra Costa County records, more particularly described as follows: A 20 foot wide strip of land,the centerline of which is described as follows: Beginning at a point lying 88.65 feet left of Station 1499+18.70 as said stationing is shown on sheet 7 of said RS 2090,thence South 62°21'00"West,56.10 feet;thence South 50211511 East, 41.90 feet;thence South 14°29'42"East,289.86 feet;thence South 13°41'53"East, 146.24 feet; thence South 18°49'18"East,264.30 feet; thence South 22°13'04"East,247.38 feet; thence South 24°59'08"East,245.48 feet;thence South 29°11'47'East, 164.53 feet; thence South 32002'12"East,276.38 feet; thence South 32°19'00"East, 682.36 feet; thence South 32014'20" East, 805.34 feet; thence South 25°59'09"East 49,12 feet; thence South 22°57'13"East 126.80 feet;thence South 13°30'54"East 40.52 feet; thence South 9°56'31"East 169.65 feet;thence South 2°4739"East 652.946 feet;thence South 1*00'19"East 222.83 feet; thence South 13°28'42"West 467.10 feet;thence South 33034152"West 250.06 feet to a point lying 22.14 feet left of Station 1550+53.81 as shown on sheet 12 of said RS 2090 and the terminus of the described centerline. Excepting that portion of said 20 foot strip falling outside said 12652 O.R. 570. Containing an area of 103,200 square feet more or less. THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE LAND SURVEYORS ACT IN OCTOBER 2001. ND U 0 ALAN R.DUBACK LS 4765 -- No.LS 4765 * Exp.3131104 OP C� H:\JOB-NIJMS\2569211RNHRSE1EasementlLegal\sb_lgl.doc SAA s N A Itl eq Ott e� 4 Z9 UA ..z cc a 7 w J3.-WIL t + it f ± { I ; , • » t f { t ti + F ! ± + t { + aro + �n r �t tl ' t t ; 1 .�'; ► � t;� t3 i ,r5 111th` 1 { G•: �, '�n 1 j Ctsod; • • •• \ � II ,�`•� v ' it It ot WOO 1 �11 1 A 119 h ti HOLLVA9111109 god D li2HC YiC ml Halym _.. 1� :i�✓✓ i �; *� � � � •sus ssst � �. j $$ ti tii � t j C4 i j oat it it NW Ap • ;ti Y ti 4, t . :`3i' �1111A � k i I t� jJp�, `h't IIT VYSTA CT � i i • �r j �p w � C � { i y JAV OIp opt i pip S 1 t4Gi 7!r �Y t � I J / r inf. 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I t l 1 1 1I it Ills / till 11 tilititl ISIi itti `; tt i f r /lYl ! to I4 41 i 1iIt111It to 441111i � f14 if # iiillit = ill Il l 11I ' M it 111 f t t f t P t t t t 11 ii fltf � i 4111 111111111114 ff t t 11441144 fi 1 ' i i It I r l t ! 1 F t f } t {{ tffYl 1 Ytl tl1 flll } t 1 Y i f 1 If 1141 Ylli If ittfflr fi i "P 1 rfr 11 , 1 ' % { tlll 411111 11111411 If i i 111 l} tI Iil It ��l liif 1111111411 t1 i t t 1'"i"'�`•y'4r l'I w-� 4�rt• i {.r � i l l k l t ! I f 1 1 / 11114 } } 1 tt 11111+ }-} � flf � 11411 111111111 1 #� 1 t 1411144 ff i 1 � Iltll � f f�22i} f}�1(,�tl�il 1141144111 ti ;tl 111411 tll it / f f11tf fl } , ! fi ilii / ii S1 lilt { j S 111 1114 } } % 11It 1411 { t 4111 fifiiltltt ti It � l 111111 it ��i illi EXHIBIT "Bee All that real property located in the City of Walnut Creek, County of Contra Costa, State of California described as follows: That portion of "RS 2090 Record of Survey of Former Southern Pacific Railroad Right of Way in Incorporated and Un-Incorporated Areas in Contra Costa County, California",recorded August 24, 1994, 106 LSM 7, Contra Costa County records,more particularly described as follows: That portion of a 30-foot wide strip of land lying below an elevation 111.2 feet MSL 1929, at its northern beginning,and an elevation 98.0 feet at its southern terminus,having an even slope of -0.3%,the bottom of said strip lying 30 feet below said elevations,the centerline of which is described as follows: Beginning at a point lying 77.49 feet right of Station 1453+48,40 as said stationing is shown on sheet 4 of said RS 2090; thence South 24°44' 01"East, 181.78 feet;thence along a curve to the right with a radius of 1200.00 feet,through a central angle of 9°26'04",an arc length of 197.59 feet; thence South 15°17'57' East, 388.57 feet; thence along a curve to the right with a radius of 1200 feet,through a central angle of 10°49'59", an arc length of 226.90 feet; thence South 4°27'56"East, 129.48 feet; thence along a curve to the right with a radius of 1200,00 feet,through a central angle of 1804528", an arc distance of 392.86 feet; thence South 14°17'31"West, 148.61 feet; thence along a curve to the left with a radius of 1200.00 feet,through a central angle of 27°36'10", an arc distance of 578.11 feet;thence South 13°18'40" East,258.78 feet;thence along a curve to the right with a radius 2000.00 feet,through a central angle of 2'40'33", an arc distance of 93.40 feet; thence South 10°38'07"East, 446.49 feet; thence along a curve to the left with a radius of 2000.00 feet,through a central angle of 5°4943",an arc distance of 203.46 feet; thence South 16°27'50" East, 159.43 feet; thence along a curve to the right with a radius of 2000.00 feet, through a central angle of 2°7'56", an arc distance of 74.43 feet; thence South 14019'55" East, 102.33 feet; thence along a curve to the left with a radius of 2000.00 feet, through a central angle of 4°26'06", an are distance of 154.81 feet; thence South 18°46'00" East, 111.59 feet; thence along a curve to the right with a radius of 2000.00 feet,through a central angle of 8°3633",an arc distance of 300.52 feet; thence South 10°0927" East,241.06 feet, to a point which lies 88.65 feet left of Station 1499+18.70 as said stationing is shown on sheet 7 of said RS 2090, and the terminus of the described centerline. Excepting therefrom that portion falling outside the parcels shown as"12652 O.R. 570","13115 O.R. 685", and"CCCFCD&WCD" as shown on said RS2090. Containing a surface area of 115,020 square feet more or less. THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE LAND SURVEYORS ACT IN NOVEMBER 2002. 6() LAND ons ?�' ��c4 'F L c3 'T �� t No.LS 4765 x X �-C-7-�N- Exp•3J31/04 � R.DUBACIC LS 4765 ck H:\JOB-NUMS\2569211RNHRSE\Easement\Letal\fc_tun lgl.doc EXHIBIT "C11 TEMPORARY EASEMENT All that real property located in the City of Walnut Creek,County of Contra Costa, State of California described as follows: That portion of the parcels shown as 12652 O.R.570 on the"RS 2090 Record of Survey of Former Southern Pacific Railroad Right of Way in Incorporated and Un-Incorporated Areas in Contra Costa:County,California",recorded August 24, 1994, 106 LSM 4,Contra Costa County records,more particularly described as follows: Parcel 1: A strip of land of variable widfh,lying between the easterly curb line of South Broadway on the west and the east line of said 12652 O.R.570 on the east,with an average width of approximately 33 feet.The easterly line of said strip running from a point on said east line of 12652 O.R.570, said point being the southern end of a 400 foot more or less curve on the westerly line of 50 LSM 21,southerly along said east line of 12652 O.R.570,4,700 feet more or less,to the intersection of said easterly curb line of South Broadway with said east line of 12652 O.R. 570. Containing an area of 3.51 Acres more or less. Parcel 2: A strip of land,40 feet in width,lying between the southwesterly curb line of South Broadway on the north and the northwesterly line of Danville Boulevard on the south.The southeasterly line of said 40 foot wide strip running from the intersection of the east line of said 12652 O.R. 570 with said southwesterly line of South Broadway,approximately 433 feet,to the intersection of said east line of 16652 O.R. 570 with said northwesterly line of Danville Boulevard. Containing an area of 0.40 acres more or less End of Description H:\JOB-NUMS\25692\IRNHRSE\Easemeiit\Legal\sb-temp_lgl.doe EXHIBIT "D" 1 Victor J. Westinan County Counsel 1,72 tau: 2 Contra Costa Countyi.-; i^ By:: David F. Schmidt !� u L l 3 Deputy County Counsel P.O. Box 69 DEC 6 %'. f"Ob 4 County Administration Building 651 Pine Street, 9th Floorr" 5 Martinez, CA 94553 - _✓_.o. . ,_, ,.�.'� `w`�v.:� _ Phone: ( 415 ) 372-2057 6 Attorneys for plaintiff 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 CONTRA COSTA COUNTY FLOOD ) CONTROL AND WATER CONSERVATION ) No. 262946 11 DISTRICT, a subdivision of the ) State of California, ) FINAL ORDER OF 12 ) CONDEMNATION Plaintiff, ) 13 } V. ) 14 } CONTRA COSTA COUNTY, substituted) 15 in place of SOUTHERN PACIFIC } TRANSPORTATION COMPANY, a ) 16 Delaware corporation, et al. , } 17 Defendants . ) ) 18 19 It appearing to the court that plaintiff has paid 20 defendant Contra Costa County the sum of money assessed by the 21 Judgment in Condemnation entered in this proceeding, 22 NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that 23 a perpetual, non--exclusive easement and right-of-way in, under, 24 along and across the real property situated in the County of 25 Contra Costa, State of California, and more particularly described 26 in Exhibit A attached to and made a part of this Order, be 27 condemned to plaintiff. The easement and right-of- ,ray shall be '28 1 subject to the terms and conditions of the Judgment in 2 Condemnation, a copy of which is attached to this Order as Exhibit 3 B. 4 IT IS FURTHER ORDERED AND ADJUDGED that a certified copy 5 of this Order be recorded in the office of the Recorder of Contra 6 Costa County, State of California, and upon such recording, title 7 to the easement and right-of-way shall vest in plaintiff. 8 9 Dated: December ,, 1986 10 ROBERT G. MC GRATH 11 JUDGE OF THE SUPERIOR COURT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- ,�R R inion Bvr.as,: EIT "A" A portion of Parcels Se**enteen, Eighteen, Nineteen, Twenty-Two, Twenty-Five, Twenty-Eight and Twenty-Nine as described in deed to Contra Costa County recorded December 9, 1985 in Book. 12652 at page 570 of Official Records of Contra Costa County, State of California lying within the Ranchos San Miguel and San Ramon being a strip of land 44.00 feet in width, the center tine of which is described as follows Beginning at a paint on the center tine of 52.00 feet in width right of wav as described in the Lis Pendens, Contra Costa County Flood Control and eater Conservation District vs. Walnut Creek School District of contra Costa Countv, et al, recorded December 7.4, 1969 in Book 69031 at page 163, records of. said County, which bears north 350 09' 44" east (record N 35" 08' 27" E) 99.36 feet from point T6i-19 as described in said Lis Pendens; thence from hint of beginning south 27" 28' 24" west 132.85 feet; thence southwesterly along the arc of a tangent curve, concave to the southeast having a radius of 334.00 feet through a cental angle of 28" 37' 34", a distance of 165.87 feet; thence tangent to said curve south 1" 09' 08" east 50.96 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 417.00 feet through a central angle of 12" 17' 09", a distance of 43.70 feet; thence tangent to said curve, south 13" 26' 17" east 578.89 feet; thence sout',erIv along the arc 'of a tangent curve, concave to the west having a radius of 4390.00 feet through a central angle of 1" 13' 58", a distance of 94.46 feet; thence tangent to said curve south 12" 12' 19" east 221.42 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 3640.00 feet through a central angle of 1.10 45' 10", a distance of 746.65 feet; thence tangent to said carve, sough 0" 27' 09" east 84.06 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 955.00 feet through a central angle of 20" 43' 05", a distance of 345.33 feet; thence tangent to said curve, south 20" 15' 57" west 78.60 feat; thence southerly along the arc of a tangent curve, concave to the east having a radius of 373.00 feet through a central angle of 280 04' 48", a distance of 182.80 feet; thence tangent to said curve, south 7" 48' 52" east 540.95 feat; thence southerly along the arc of a tangent curve, concave to the east having a radius of 5080.00 feet through a central angle of 1" 37' t3", a distance of 143.66 feet; thence tangent to said curve, south 9" 26' 05" east 85.11 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 1150.00 feet through a central angle of 8" 06' 55", a distance of 162.88 feet; thence tangent to said curve south 17" 33' 00" east 972.85 feat; thence southerly along the arc of a tangent curve, concave to the west having a radius of 400.00 feet through a central angle of 160 55' 44", a distance of 118.19 feet; thence tangent to said curve, south 0" 37' 16" east 13.5.16 feet; thence southerly along the arc of a tangent curve, concave to the west havinq a radius of 935.00 feet through a central angle of 4" 24' 06", a distance of 71.83 feet; thence tangent to said curve, south 3" 46' 50" west 130.82 feet; thence southerly along the arc of a tangent curve, concave to the east havira a radius of 398.00 feet through a central angle of 17" 21' 22", a distance of 120.56 feet; thence tangent to said curve, south 1.3" 34' 32" east 338.75 feet-; thence southerly along the arc of a tangent curve, concave to the east havi q i a radius of 2905.00 feet through a central angle of 9° 30' 40", a distance of 482.23 feet; thence tangent to said curve south 230 05' t3•" east Q4.78 feet; thence southeasterly along the arc of a tangent curve, concave to the northeast having a radius of 3645.00 feet through a central angle of 9° 30' 15", a distance of 604.55 feet; thence tangent to said curve, south 32° 35' 28" east 1547.08 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 769.00 feet through a central angle of 220 59' 01", a distance of 308.48 feet; thence tangent to said curve, south 9° 36' 27" east 121.63 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 374.00 feet through a central ang.te of 24° 06' 370, a distance of 157.38 feet to a point in the easterly line of Parcel 29 as described in the hereinbefore mentioned deed to Contra Costa County (12652 OR 570) , said point to be hereinafter referred to as Point "A"; thence continuing southerly along the arc of said curve with a radius of 374.00 feet, through a central angle of 30 09' 29", a distance of 20.611 feet; thence tangent to said curve south 360 52' 33" east 50.00 feet to the terminus of said 44.00 feet in width strip of land. Said Point "A" is further described as bearing north 4° 09' 00" west 223.56 feet along the easterly line and its northerly prolongation of Parcel A as said parcel is shown an the mac of MS 8051-81 filed May 23, 1984 in Aiook 110 of Parcels Magas at page 24, records of Contra Costa County. Ra.CEP11= THEM all of the above 44.00 feet in width strip of land lying outside of said Contra Costa County Parcels (12652 O.R. 570) . exasrbypass.t6 Dnvi.d F. Schrilidt )uptity County Coun ol. P.O. I3ox 69 DEC - 5 Mb l County Administration Building 651 Pine Street, 9th Floor �A.�� Martinez , CA 94553 UWTKA(AKTACOUNTY Phone : ( 415) 372-=2057 a r rr+rrx,du,.tkw,, 5 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 C0NTRA COSTA COUNTY FLOOD } CONTROL AND WATER CONSERVATION ) No. 262946 11 DISTRICT, etc. , ) i JUDGMENT IN CONDEMNATIOi I! 12 Plaintiff, ) ; 13 V. ) � 14 SOUTHERN PACIFIC TRANSPORTATION } CO. , etc. , et al. , } 15 j 16 Defendants . ) i > 17 i 18 WHEREAS, plaintiff Contra Costa County Flood Control 19 and Water Conservation District and defendant County of Cont--a + I 20 Costa have stipulated that judgment in condemnation may be enter:-:!C1 ' 21 with respect to the real property or interest in real property 22 described in the complaint on file in this action , and ha,.-- 23 statement of decision and notice of entry of judgment, 24 NOW, THEml-roil E, IT IS HEREBY 0R.DERIE7, ADJUDGED -iND [3;✓'vREEE AS 1:OL+LOWS 26 1. Pursilant to this action, plaintif-f shC01_ r-*i'\'- :-z- icgi.21 r�- a nerpot.uial. , non-cxcl.u.-;i.;;r: and t,irl'po!;(,s nl' layin( clown, CC)n.`i':t"ltC.'I:lr1'i , r+'CC)r'iSt Ctr+_'1: L:lri , �(( l7 D !i EEO I I l'i'MOVi.it, a:i plaint i. C f' may Ir A 1!It I ()(ji 3 onc, or moreipolines, Cu I or (i 1) 4 necessary walls , revetments, structures , bracos, connoction 5 fastenings, fences, protective barriers , appliances, fixtures and 6 other facilities for use in connection therewith or appurtenant 7 thereto, in, under, along and across that certain real property 8 located in the County of Contra Costa, State of California, 9 described in attached Exhibit "A. " 10 2. For acquisition of the easement described in section 11 1 above, plaintiff shall pay to defendant compensation in the sum 12 of $2 , 062 , 280 . 00 . Plaintiff has previously deposited with the 13 court in this action the sum of $1, 370, 000. 00, which sum shall be 14 credited toward the compensation payable to defendant, leaving a 15 balance owing to defendant of $692, 280. 00 . Upon entry of this 16 Judgment, the County Clerk and County Auditor are authorized and 17 directed to transfer, by means of a journal entry, from plaintil' - 18 to defendant the balance owing in the sum of $692, 280. 00. 19 3. The easement acquired by plaintiff shall include thr. - 20 right by plaintiff, its officers, agents and employees, and by 21 persons under contract with it and their employees, wherever 22 necessary for drainage or flood control purposes , to enter upor, 23 the above-described real property with oersonn:�l , vehicles and 24 equipment, and to remove all trees, vegetation and str:i c tu r E�F, 25 thereon that interfere -,�7ith the pux!.".o.ses -for %-,hich th enserri—it 26 acquiro:.d. 27 4 . fn tho event either or ti �n{iznt undort,ik­s conntructiori or any ­x­:t%�--- i.oii wi,t�i in .1.': .. .I; t� ., '! t• •i: ! t, �{.:�4 t U{ rr. = t.t' t °;itt !i t !i � .i,E t,: ,. :;llc`II c..'UI t is , =.tlr! 'r •i-t:.iv,i1. t = n .,iG1s i rl:t�: c�tr��laly not_ ;,J'y t,.ho othc-`r parLy :int.] th�.� other. pari ;' 4 ( 30 ) calendar days to rQview wlic char the proposed construc t--turf or 5 excavation may impact its facilities or operations. i 6 5 . Defendant is considering other possible uses of the ; 7 above-described property and shall reserve the right to the i 8 reasonable use of all of the real property described in Exhibit 9 "A, " as long as the use: is compatible with plaintiff 's easomen: _ 10 rights as set forth in this Judgment. j M 11 6. In the event defendant' s use of the above-described I 12 real property requires the relocation or reconstruction of 13 plaintiff ' s facilities, defendant shall be responsible for al . i 14 costs associated with the relocation or reconstruction.. Plaint-i 'T ! _ 15 shall act as the lead agency in the relocation or reeonstrjctao.l: of 16 the plaintiff ' s facilities. Defendant shall reimburse the 17 plaintiff for all of plaintiff ' s expenses incurred in such 18 relocation or reconstruction. 19 7 . If plaintiff proposes to do work of a non-^me"9rnc .� 20 nature which may interfere with defendant' s reasonable use of � r 21 above-described real property, plaintiff agrees that, prior to 22 start of that work, defendant and plaintiff shall enter into an 23 agreement providing a work plan and schedule which minimize the, 24 effect of tho work on defendant' s reasonable use. Tho part-I- 25 shall act in an exped7i-bots Crlanry-`_r. to roach agrw'om-'n , awl 26 not,- unr,?;isoni bly Oclay pla.1-riti int. Croy;, ncca,npli.sE11,ng ' h '1 ~ 27 � �_. y . Tjl3 c, evrnit t - .`Yi party 011101-1Yilk >_i t.- t:al.i.f}IZ, thav part,, -:r; ?. nori.` y t lir, r th, ! a l .ai6. •+jl •It t .' t I1 '•!II, ,j •Ili .. ,I.11 l ,,:I. t,llt• •!''j' Ilt' .�tl.li f i +• ;.', ii+ •t int•t) �1°. :l :; i.t'.!r;lt. it_,T� �.�tT.it�il +:.r;!:;t :; ci i �ic�r,nk_ i.11u,Irit-t• f�1" t' it+• 3 oC,t r.lti.on of 1)1aintei CI,' s f:ac.i1. ititer o thc: o1)(2rat.it7rT def•.`yndant ' S uses , or a situation which presents an 11T'ITtI(?tllc'1tC_' 5 threat to the operation of such facilities or uses. An emergency 6 shall additionally include any rupture, leakage or other damage to 7 plaintiff ' s facilities which creates a present or immediate threat 8 to public health or danger to public safety. 9 In the event of an emergency situation, plaintiff shall { 10 not be responsible for any loss of revenue or other damages to 11 defendant resulting from the inconvenience or interruption of 12 defendant ' s uses , so long as the plaintiff males every reasonable ! 13 effort to immediately alleviate the cause of the emergency i I 14 situation in a manner which minimizes the impact on defendant' s 15 uses . Similarly, defendant shall not be responsible for any los: 16 of revenue or other damages to plaintiff resulting from the f 17 inconvenience or interruption of plaintiff ' s uses, so long as 18 defendant makes every reasonable effort to immediately alleviate 19 the cause of the emergency situation in a manner which minimizes 20 the impact on plaintiff ' s uses. 21 8. Defendant and plaintiff shall require all ; 22 contractors or assigns who undertake construction on any portion 23 of the renal property described in Exhibit "A" to list the other 24 party as an additional insured under the contractor' s liability 25 .insurance and shrill. further require the contractor to ind,:? 1ni ' 26 bots` parti.e-•s in a like manner . `17 9 . Plainti. FF shall. not: i.:" T trio t'c Tit, . 1. Contra Cor -:' 1 "}fj ;sllll t:;ir?' Dititrict ( ren+'rr(-.A to ,i is "t-'('CSW' ) in wr I t i.nij of an- I � 1 i•' '�a.l i . ul' :it+i li . :l.l7t+ ' .I..a i • y . t ' ...iit'�1 a°aiaf �ct tn!! • ' :� I ! � 1 a 3 1.0 i f CCC S1) d t rinint.'a; ,_hat a i i y rp;-, ir or rlai:l+ ' .. ... 4 activity by plaint.-Aft- will affect CCC.13D1s facilities, plainti . r 5 and CCCSD shall enter into an agreement providing a work plan and � 6 schedule which minimize the effect of the repair or maintena,nc 7 activities on the operation of CCCSD' s facilities . 1 8 11. Plaintiff shall not require CCCSD to relocate or i 9 alter CCCSD' s facilities to allow expansion of any flood control 10 facilities. a 11 12 . In the event that CCCSD performs any repair or i 12 maintenance activity on its facilities, plaintiff agrees, at �e,l I 13 cost to CCCSD, to protect plaintiff ' s facilities from the ef`'• ~ts 14 of sucOplicenses es. ' 15 n the event defendant grants any subsequent 16 easeme within the real property described in 17 Exhibit "A, " defendant shall require each subsequent grantee 18 (referred to as the "Granter" ) to enter into a common use 19 agreement with plaintiff, which agreement contains, at a Mini:-`.;T, 20 the following provisions: 21 a. The Grantee shall remove or relocate the 22 Grantee' s facilities in a timely manner and at no cost to 23 defendant or plaintiff as reasonably necessary to accommoda`., 24 p �intiff ' s right to construct , alter, replace, enlarge, 25 maintain, and ooerate plainti " ' s° faci.l-itir.,s, n u. igh(.'n jA;7iLn!-A,- C detc-renin' s to •,inIt-•rtalrl `n"7 or rt..loca?ttir,-,n L tht' GT' ' W�1.L!'"il shall. nec:,,r.',1-`.ry�;t`° t�tl': C''"'�(`s'1�11 � �'' :28 { � 1.t`. i "; ',J 1.f:I1Lt1 1�1.�"11 �'i' L ( '- ' :°1t;�•.nr'lll:, �7l �:tl.11t' �. "• :;fa.11t '7U{. I t` 1 . . r •. :1 r t i. t2. .,. i } +• ..n+ r,Tt le): ..2t ! tll�f":1i11'. t .. 2 1 2+` i ! i ` 1 i'ii .t .tlt. c,.. 1 i 1irn11 t I +.ttlt;�,.11 c t" i ! 3tt+ 2t1 1.1.I't�. i F V Wi !.:2 i +t ::hi r!:`.' i(� Cillt'?11t.�i1r days Or YC?{`{�.L(7t O1 4 to do so. Piaintil' C shall rt_.view and comincant on the plan within 5 thirty ( 30) calendar days of its receipt. The Grantee? shall 6 modify the plan to incorporate plaintiff ' s comments and resubmit 7 the plan for plaintiff ' s approval. The approval by plaintiff 8 shall. not bre unreasonably withheld. 9 C. Any damage done to plaintiff ' s facilities by 10 the Grantee shall be repaired by plaintiff and all costs shall be 11 paid for by the Grantee. Grantee shall provide a bond or other 12 surety acceptable to plaintiff on or before the execution of the 13 common use agreement by plaintiff, in a sufficient amount to 14 plaintiff as a guarantee that the Grantee shall remove or relocate 15 the Grantee' s facilities upon notification to do so by plaintiff. 16 d. The Grantee shall defend, indemnify, save and 17 hold harmless plaintiff and its officers and employees from any 18 and all claims, costs and liabilities for any damages, injury or 19 death arising from or connected with the performance hereof, clue 20 to or claimed or alleged to be due to negligent or wrongful acts, 21 errors, or omissions of the Grantee or any other person under the 22 Grantee' s control , including but not limited to liability arising 23 from injury or death to members of the public using the property 24 described in the subsequent easement, save and except claims or 1 25 litigation arising through thea sole nogli.gence or willful 6 "12s'yt}n4IlIY`f of Gr7 ni Hood to t ` 7 r"'Li1ti)tIr`;.? plc• int-A rf for any in,cI.iclinq reasona: j ,� 1}j "it t`.t7T"ilt'y ' '; 1 :+`:i , j)l 21. It.l ! � in-i%, m %­ by ?ilii X27 t t- such malttt'+" . r -Pii" I Ill 1 ;14-1* 1;)1-1 '.:11.0. L I Gr,Ill L, !;i I,1 1. 1. savo a I I(I I Iok; 2 from any and al. 1. arising out )f 3 condrmn.-.t tion concerning such mattors , except that plaintiffff sh L 4 b(-s r.,--Isr)c)nsible for a share of liability corresponding solely to 5 the actual percentage of the cause in fact of plaintiff ' s 6 facilities as deliberately designed and constructed. The Grantee 7 further agrees to assume all joint and several liability fo.r tort 8 actions to the extent such liability exceeds the actual percentage 9 of fault attributable to the actions of plaintiff and its officers 10 and employees. 11 14 . Plaintiff shall indemnify and hold harmless 12 defendant from any liability arising out of plaintiff ' s operations 13 under this Judgment. Plaintiff shall further assume 14 responsibility for any damages proximately caused by reason of 15 plaintiff ' s operations under this Judgment and plaintiff shall, at 16 its option, either repair or pay for such damages. 17 Defendant shall indemnify and hold harmless plaintiff 18 from any liability arising out of defendant' s operations under viii 19 Judgment. 'Defendant shall further assume responsibility for any 20 damages proximately caused by reason of defendant' s operations 21 under this Judgment and defendant shall , at its option, either 22 repair or pay for such damages. 23 15 . The parties acknowledge that plaintiff has agreeei 24 to incur an additional expense, at defendant' s request, during 25 construction of the flood control channel , in order to reinforc- 26 titre chann -1 walls on thc- portion of the channel lying 27 and Mt. Diai3lo Botil(,vard. I)efendant shall For Hif-' actual. cosys incurred. Pi.,-.1 in -7- ;II ~ft,C. •ncl•111L w.s, t•ii ;in acc-tlr•,iI , ic,*(,mjj 1ti•j I r,:.` :i c:I:,::i I I y inc+i r. r.c�d 5uc Ii r-,�im!)ursc_vnt. ni: :iiia i ! bc. tn<�cir• ;� s.. t.:,r . , ,,•. 3 d fondant conveys to a subsequent grant(?o- zany right- wh.i(',Ih in..° , 4 or precludes utilization of the reinforcing in the walls, or at 5 the time defendant itself utilizes the reinforcing in the walls. i ! 4 6 16. This Judgment sets forth the entire agreement of 7 the parties. The performance of the terms of this Judgment shall 8 relieve plaintiff of all further obligation or claims on account i 9 of the location, grade or construction of the proposed public i 10 improvement. 11 I 12 Dated: DEC 5 1186 1986 E. STRANKMAN 13 14 15 Judge of the Superior Court i 16 17 18 e 19 20 21 22 23 24 25 26 27 -8- ,An R imon Bvr3 s!. EXMrT "A" A portion of Parcels Se-enteen, Eighteen, Nineteen, Twenty-Two, Twenty-Five, Twenty-Eight and Twenty-Nine as described in deed to Contra Costa Count•✓ recorded December 9, 1985 in Book 12652 at page 570 of. Official Records of Contra Costa County, State of California lying within the Ranchos San Miguel and San Ramon being a strip of land 44.00 feet in width, the center line of which is described as follows; Beginning at a point on the center Zine of 52.00 feet in width right of way as described in the Lis pendens, Contra Costa County Flood CAatrol and water Conservation District vs. Walnut Creek School nistrict of Contra Costa Countv, et al, recorded December 24, 1969 in Hook 69031 at page 163, records of. said County, which bears north 350 09' 44" east (record N 350 08' 27" E) 99.36 feet from point T6--19 as described in said Lis Pendens; thence from point of beginning south 270 28' 24" west 132.85 feet; thence southwesterly along the arc of a tangent curve, concave to the southeast having a radius of 334.00 feet through a central angle of 2810 37' 34", a distance of 166.87 feet; thence tangent to said curve south Z° 09' 08" east 50.96 feet; thence southerly along the arc of a tangent carve, concave to the east having a radius of 437.00 feet through a central angle of 12' 17' 09", a distance of 43.70 feet; thence tangent to said carve, south 130 26' 17" east 578.89 feet; thence southerly along the arc 'of a tangent curve, concave to the west having a radius of 4390.00 feet through a central angle of 10 13' 58", a distance of 94.46 feet; thence tangent to said curve south 1.20 12' 19" east 221.42 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 3540.00 feat through a central angle of ll° 45' 10", a distance of 746.65 feet; thence tangent to said curve, south 00 27' 09" east 84.06 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 955.00 feet through a central angle of 200 43' 05", a distance of 345.33 feet; thence tangent to said curve, south 200 15' 57" west 78.60 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 373.00 feet through a central angle of 280 04' 48", a distance of 182.80 feet; thence tangent to said curve, south 7° 48' 52" east 540.95 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 5080.00 feet through a central angle of 10 37' 13", a distance of 143.66 feet; thence tangent to said curve, south 90 26' 05" east 85.11 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 1.150.00 feet through a central angle of 80 06' W, a distance of 162.88 feet; thence tangent to said curve south 170 33' 00" -east 972.85 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 400.00 feet through a central angle of 160 55' 44", a distance of 118.19 feet; thence tangent to said curve, south 00 37' 16" east 135.16 feet; thence southerly along the arc of a tangent curve, concave to the ;west having a radius of 935.00 feet through a central angle of 4° 24' 06", a distance of 71.83 feet; thence tangent to said curve, south 3° 46' 50" west 130.82 feet; thence southerly along the arc of a tangent curve, concave to the east having a radius of 398.00 feet through a central angle of 170 21' 22", a distance of. 120.56 feet; thence tangent to said curve, South 1.30 34' 32" east :338.75 fit; thence southerly along the arc of a tangent curve, concave to the past having a radius of. 2905.00 feet throcxlh a central angle of 90 30' 40", a distance of 482.23 feet; thence tangent to said curve south 23® 05' 11" east 44.78 feet; thence southeasterly along the arc of a tangent curve, concave to the northeast having a radius of 3645.00 feet through a central angle of 9° 30' 16", a distance of 604.65 feet; thence tangent to said curve, south 320 35' 28" east 1547.08 feet; thence southerly along the arc of a tangent curve, concave to the west having a radius of 769.00 feet through a central angle of 2211 59' 01", a distance of 308.48 feet; thence tangent to said curve, south 9° 36' 27" east 121.63 feet; theme southerly along the arc of a tangent curve, concave to the east having a radius of 374.00- feet through a central angle of 24° 06' 37", a distance of 157.38 feet to a point in the easterly line of Parcel 29 as described in the hereinbefore mentioned deed to Contra Costa County (12652 OR 570) , said paint to be hereinafter referred to as Point "A"; thence continuing southerly along the arc of said curve with a radius of 374.00 feet, through a central, angle of 30 09' 29", a distance of 20.61 feet; thence tangent to said curve south 360 52' 33" east 50.00 feet to the terminus of said 44.00 feet in width strip of land. Said Point "A" is further described as bearing north 411 09' 00" west 223.56 feet along the easterly line and its northerly prolongation of Parcel A as said parcel is shown on the map of MS 805-81 filed May 23, 1984 in:aook 110 of Parcels Maps at page 24, records of Contra Costa County. I90 THEREFRCM all of the above 44.00 feet in width strip of land lying outside of said Contra Costa County Parcels (:12652 O.R. 570) . ex:srbypass.t6 Exhibit "E" 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("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 KL:DRA:eh G:\GrpData\Rea1Prop\EBMUD Pipeline\100302EBMUD CommonUse SoBroadTunnel.dm Page 1 of 6 10/23/2002 10:01 AM Exhibit "E" 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 NO'T'ICE 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 EBNIUD 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 ICL:DRA:eh G:\GrpData\RealProp\EBMUD Pipeline\100302EBMUD Common Use SoBroad`runnel.doc Page 2 of 6 10/23/2002 10:01 AM Exhibit "E" 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, EBMM 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. EBNfM 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 EBMLJD's sole cost, expense, and liability. KL:DRA:eh G:NGrpDataNRea1PM\EBMUD Pipehne\l 00302EBMUD CommonUse SoDroadTunnel.doc Page 3 of 6 10/23/2002 10:01 AM Exhibit "E" 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. EMERGENCE' 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 extreme 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:eh G:1GrpData\Rea1Prop\EBMUD Pipehne\l00302EBMUD ComrwnUse SoBroad`runnel.doc Page 4 of 6 10/23/2002 10:01 AM Exhibit ":E" Common Use Agreement Control may mare 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: EBMLJD 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. KUDRA:eh G:IGrpData\Res1Prop\EBMUD Pipeline\100302EBMUD CommonUse soBroadTunnel.doc Page 5 of 6 1012312002 10:01 AM Exhibit "E" 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 Silvan B. Marchesi, APPROVED AS TO FORM: County Counsel By District Counsel KL:DRA:eh G:\GrpDat&\Re&1Prop\EBMUD Pipciinc\l 00302EBMUD ComrwnUse SoBmadTunnel.doc Page 6 of 6 10/23/2002 10:01 AM , Ile", { ' ,.ta+1,,+:. P; ( J• !� y:r' r F j °� !'••:g „r+J,Y .. + ir,J'. yt:\i. • , {•"� .Ny'!L + t t+� •a. '+its+tri''"','+'4■Jy'.++37Y•►',:.4 :�tr!•',.,hr+!%'.;�',lY!;Y't>e+. , `t,o.IM+w`,�jy!'r',.`xis';IEM>fQiti,.n ''ga.,.v..:.».,.,aJ.o. ..y+, .µ•.. �'° i EXHIBIT 11P � b WECO DING RESTED BY Ci RMUL COWMA COSTA SANITARY DISTRICT F . AND WHEN RECORDED MAIL TOs Central 'Contra Costa Sanitary District 5019. Imhoff Place Martinez, CA 94553 ; Attnt Purchasing CM GRANT OF EASE EXT KW TH14 AGREEMENT, made and entered into this day .of go j * by and between`tontra Costa Coun * a political subdivision of the State of California ' ("Grantor") and Central Contra Costa Sani!,!r_. District, a public corporation organized and existing under the laws of the State of California ("Grantee")s .' WITKESSEYNs rG THAT the ",rantors for a good and valuable considerations the receipt and sufficiency whereof are hereby acknowledged, hereby grants to the Grantee and to its successors and assigns perpetual non-exclusive easements and is right-of-way* as described herein and in Exhibit Ones for the purpose of +! constructing* altering* replacing, repairing* maintaining* and operating '. sanitary sewer pipelines and appurtenances* as the Grantee may see fits in, under* along, and across that certain real property described in Exhibit One. , WITH respect to the exercise of the rights herein granteds the parties ~ Y hereto agree as follows: ! ` 1. The Grantor grants to the Grantee non-exclusive "Surface Access {ti Easements" providing the Grantee the right to use the ground surface of the -real property described in Exhibit One* for all purposes necessary and ancillary to constructing* altering, replacing, repairing, maintaining* and operating sanitary sower pipelines and related sewer facilities, including* but not limited tos access for pedestrians, vehicles* and equipment of .all varieties. '} 2. The Grantor grants to the Grantee "Sub-Surface Facility Easements" as particularly described in Exhibit One which provides to the Grantee the • right to construct* alter* replace* repair* maintain* and operate underground sewer pipelines and related sewer facilities In such configurations and in such sizes as determined by the Grantee. The Grantee shall enjoy full use of the easement as provided for herein. ,. 3. Both the "Surface Access Easements" and the "Sub-Surface Facility 4: Easements" are perpetual and non-exclusive. However* any f` "Sub-Surface Facility Easements" granted by the Grantor to any , ,5)r Y 9!26!86.11 -1- ..:. . ,.err *-5, 'j.Y:,A'j}:t 4I p,• 7 .+�' „•�i'�;�.}',I.!`i,ri�.' i`i` 1 W„ ;''t. :r?y�r 7,�.:n.,�... ,�• •ryt%ry.�yC+`i7.s�+ '�b.+��!'•�y")�i'y' 6;' 4 s�• +. �,�;, a "'Yt}j � h t•. S•I'' '7.'+,,° w 1 1�Ir: 'y•$ +,4 ,., ','i�l, f.'Y,' ,y' '..i5'4,,i rµ; " i w•y,• j1 ',�.' \� :�8 ' 11 'i I � r i,•..�i. �.. Y tA r '•',,•a• l:,': t;l„ '.A!+ � �y 1{ ''�, ,.jr ' f' {`,+�, •�r. ,t, 7: � +. �'..F{•`•�v7+I' 1'a4;r + ;t',,Y Cf Y•S.l• .'y" '�" 1� t •t3¢' 'r�'>f` ki%J'r't��bi�%:�t `'�°i�i�}yl;r� �.i o,�F;'>.° �.• � �' ,g 1 J :j'�+�.. .,� , nA�b�r.;,� ,.i ��, d��� rY{//�,+'• Yn�tt:.Yr: 4•w' /{j.y +• ry, s r�•7,�'�" �'' : .�'� Y''+}•,,a:��'a� }�r^ :7. :,. "�i'� .J•1�i ,r +..fr y i{yw'.�!Y. •1/ I{i4 'V'�? i' ,..�er ,e ' C .F + w,��;t .3,'i:.),'• •� :�.. .+, 'ICA; Y ��`�"; Yi,'A ++�s•%'4�•,l»'1, ' G .J�!'/hr,"1,>1<�, � �i}.. 1• �s ti••• .1 4,'or�+i�'' • " .(}. }�'.�k'i�f K*t ��Ir ,Sts. I•''+'! .'i:i •r..P (' rn � .'1yy..,� r r�. rjr4�L '� ,,.,,y, tw + S N/ +"�iY/f r:h+; i:� •, ,: i.�'i, ,. J ,u'.l a^i��' }}f'� ,{S'}iyy�y�{(�.'� .!J'�� r �.. � ,� +! N 4+•�a' t ' g • t.� /°k �r,,�r kyr K. �`t9:•'rl",�;.. � ''sr't• t .y, At n�4 r+p/' 4ij''1 ''..; "' `, .',t••r f} ,r�:�i.{ (� J i'/ µ,•ti o�...4r J 8...,,,.�` .«g 1tr"...i V `�1{! �1.1' ••'v .,f ,,w,7t 0. t'ry, •.'4!'ft'�'17 �� f' i'�! \,,fk"��.w .a n, 4�:ii;',''Y�'' ''i/„''`, ,yea J,; ,tk' r +r���'' '; •s ,' >t: �+'�• •�' �. «r!J � '''�`R» "�`tf;,4 �`i`' k` µrt'�,.:�')"'i''., ? .it': r�j r r ' » :'S,�i.�:{ f •, nr�t:.� s,�''.ir 4 l"#1` tJ�y. t:r• ;:•+v°irt'i"r:y, :',. r*.: . :SSi % •',Y#v r )'�''.a+°��j9t,'ys't�r th!' �' y J �'�'.rr' � a✓r �n,"a, +- ,J K �r'' h d j � i• i'�,,•tf r ."',t, t� [tet• f�)lX+` T r :r 'Yi4„,�J.r f��+y�c'4� rrjiy?• +. ,i,,' ,, :'+��.'Msf'p.''111� 5.�' � �,. "N54,40 n t" 7d' 4't•J ',•x " tsar ,,t W 1>jy 1 4 ,rVr yft ,r , , r. r. :y. .`r,: :.+. + ` a r'•.ii,/� p!�'/r h �� �il.�'• .rM?+ft's('LiC'�'"i`�i'��t,•�ak��;ddb YS� yn'S`"�} jd�..di"V-" . r "user" other than the Grantee subsequent to this Grant of Easement and which overlap or overlay the "Sub-Surface Facility Easements" as described in Exhibit One shall require the "user" of the subsequent easement to enter into a common use agreement with the Grantee, approval of which shall not be unreasonably withheld, which shall contain, at a minimum, the following provisions% A. The "user" shall remove or relocate their facility in a timely manner and at no cost to the Grantor or Grantee as reasonably necessary to accommodate the Grantee's right to construct, alter, replace, enlarge, repair, maintain, and operate the .'•Y- Grantee's pipelines. b. when the Grantee determines to undertake a project which shall necessitate the removal or relocation of the "user%s" facility within the Grantee%s "Sub-Surface Facility Easement," the , Grantee shall notify the "user" of the need to remove or relocate said facility. The "user" shall submit a removal or relocation plan to the Grantee within thirty (30) calendar days of receipt of notice to do so. The Grantee shall review - and .comment on the plan within thirty (30) calendar days of its receipt. The "user" shall modify the plan to incorporate the Grantee's comments and resubmit the plan for Grantee's approval. The approval by the Grantee shall not be unreasonably withheld. c. My damage done to the Grantee's facilities by the "user" shall be repaired by the Grantee and all costs shall be paid for by the "uses." The "user" shall provide a bond or other surety acceptable to Grantee on or before the execution of the common use agreement by the Grantee, in a sufficient amount to the Grantoe as a guarantee that the "user" shall remove or relocate their facilities upon notification to do so by the Grantee. d. The "user" shall defend, indemnify, save and hold harmless the Grantee 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 "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 the Grantee, who shall make good to and roimburse the Grantee for any expenditures including reasonable attorneys' fees, the Grantee may make by reason of such matters. "User" further agrees that the "user" shall save and hold the Grantee harmless from any and all damages arising out of inverse condemnation concerning such matters, savo that the Grantee shall be responsible for a share of liability corresponding solely to the actual percentage of the cause in fact of the sewer facilities as deliberately designed and 9126186/1 -2- +� R.;�", _• , ` r ,;�, a a,Y,rt,p•; +,�"R'.'•.:y+�:lry. . �eft g j' � ": {i, •iYy iv� •••r � � .�7:.+i�,,,!• f t '4�Y1'jt':,d�` i ..,` ' + ..� a 100 ':'.l' .rr ;r,' .% t:.,i fr•y�..y:v7x ++x�. ',iy).M' + ., p'�?,�f.�''•rM � , 'f:hy+aQ�1i i ,`s F al ' :i. i r .. t=+y y��t��q'�rl�, r/,j r •• 4„ y'yj „}y r ����+i L7ti�r is ., •,, . ',�•r.r 41 It r�,l' „ rr. .(�. "{. +t. ;,yR r ..+., '».,,•ffy yt,•,f�.`��1 `t, •l�+'' \5' a'. ,' + ,, :s + Vr.���,»,f•k kw°'k!i h�i,.j,x" .r�i !J ,•/,+'rt': Yt! !d, ,q` �t y�'•.=i 1,r i.; "fir �,, �y�4, 'y. +n a.''•<7••{�f�uri�a.+ ,`�„ ... , ,°,�, tif���. •�,��41� ��1C��Y��I J.:S•�;n�!�•,����,� �},r � 'R'F �;:�6i! r r .r •.•mM.. rye 1,r..tjw�y,.w+Yy4Y+. P , ,.. .Rw.y Yry1+.rt f .. "� C:�S�:+•r,f 5r.r,,,f A4rrr+rn•+''.. 'OW c constructed. "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 the Grantee and its officers and employees. 4. The construction of additional pipelines beyond those presently planned or the enlargement of the existing or planned pipelines shall be considered an expansion of capacity. Prior to the Grantee's use of the easements described in Exhibit One to expand capacity the Grantee shall submit plans or other appropriate documentation to the Grantor for approval. Approval shall be limited to a determination of interference of a permanent nature ..... with the Grantor's use of the property as described in Exhibit One. L�3 The approval by the Grantor shall not be unreasonably withheld. The Grantor shall provide comments to the Grantee in writing within thirty (30) calendar days if Grantor believes said expansion ,+ unreasonably interferes with the Grantor's use of the property described in'Exhibit One as provided herein. 5. In tho event either" the Grantor or the Grantee undertake construction or any variety of excavation within the easements described in Exhibit One or immediately adjacent thereto, said party shall 'reasonably notify the other party and give said second party thirty (30) calendar days to review whether the proposed construction or excavation may impact their facilities or operations. 6. The Grantor is considering among other things, the possibility of developing a transit use such as an exclusive busway or fixed guideway system which may require the Grantor's use of certain portions of the real property within the areas described in Exhibit One as the "Surface Access Easement" and "Sub-Surface facility Easement". The Grantor retains the right to the reasonable use of all of the real property described in Exhibit One as long as the use is compatible with the Grantee's easement rights as set forth herein. The Grantor's right to the reasonable use includes the responsibility of the Grantor to maintain at the Grantor's expense all , real property, under its control, as described In Exhibit One and any immediately adjacent real property owned by the Grantor. vompatible surface uses by the Grantor of the "Surface Access Easement" shall Include, but not be limited to, landscaping, fences, surface parking, 'trails, roads, streets, other utility facilities specifically provided for elsewhere in this Grant of Easement, or other paved surfaces for an exclusive transitway. Uses which are shall include, but not be limited to, t4 ram. The Grantor also cons ers a e use the placement of noise or retaining walls within the property described in Exhibit One. It is the intent of the Grantor not to locate the foundation of a permanent wall within twelve (12) feet► and undor no 9l26/b6t1 -3- _ � i t"7• ;{ ,�I!':^t;:+�'�rd, frw'v', ti �a�r•,+•.�'Jd,y:ri. a ti• • `'L yj�.� +•f�� +• + h � 'ti '• Y* !Vol ' rr,':� „gay 7. t ,'1 # "9ti'. `, Y' y, ` •rl;f.,f.k'f �1'.',4,•••''T• d Y , ,l iTa•75 Ala' '•A,f•/ '{�, r I. .. .,YJ: P , y' .{ ,i,+,f � f 'w >.i +�' ��•• r"•NV ti+i'P'`I .fY• ••+!+'a. � •�''J' ryY{'i rN 4(L�'.'l'14.1.•`,t^Y.i„ • L.. �j w .. .;w: 'R!N �' ;.1.c .t +' J•:'f!. '••ih,:r,L.•/h P�',(� f51{{.1.. !t•�•�• '. Ni rr ^•Y''"'fi. a;.lA{yA�.A ,,,}a�• ".•Iff(Y.P' ; . lta•aiG.,''N a'7.�"'^,:#�I i•'sy" 7't{'Lij ill IRE" circumstance closer than ten (10) feet, of the center line of the Su - 1It Easement" as described in Exhibit One. The Grantor also considers compatible uses of all of the property described in Exhibit One as including the placement of transit station facilities such as loading platforms (of a minimal nature) c and canopies or the placement of rails at crossovers and transitions over the "Sub-Surface Facility Easement" as described in Exhibit , One, as tong as 'all reasonable efforts aro extended to minimize such C+� overlay. The Grantor agrees that in no event shall the rails for ' such a system be located over the Grantee's pipeline for more than 300 uninterrupted feet. PM FM U1 7. The Grantor is considering among other things, the possibility of ,U developing a transit use such as an exclusive busway or fixed guideway system which may require the Grantor's use of certain portions of the real property within the reas described in Exhibit One as the "Surface Access Easement" and "Sub-Surface Facility Easement." The Grantee proposes to construct, alter, repair, replace, maintain, and operate future sewer pipelines within the easements described in Exhibit One. Special protective measures may be required for the Grantee's proposed sewer pipelines. The Grantee shall determine and provide the necessary protective measures at the, sole cost and expense of the Grantee as long as the Grantor's proposed transit use is located outside of the "Sub-Surface Facility Easement". If the Grantor elects to overlay the transit system on tho "Sub-Surface Facility Easement" as provided for in Condition 6., then the Grantee shall determine if additional protective measures are necessary and the Grantor shall bear the full cost and expense of the installation of the additional protective measures. In the event the Grantor's overlay of the transit system on the Grantee's "Sub-Surface Facility Easement" requires the relocation or reconstruction of the Grantee's pipeline, laterals, or other facilities, the Grantor shall be responsible for all costs associated with the relocation .or reconstruction. The Grantee shall act as the lead agency In the relocation or reconstruction of the Grantee's $ewer facilities. The Grantor shell reimburse the Grantee for all of Grantee's expenses incurred in such relocation. or reconstrucion. The Grantee shall hold the Grantor harmless to the maximum extent allowed by the law, from any and all claims, costs, and liability for any damages to the Grantee's pipeline, and consequential damage resulting therefrom, due to the Grantor's construction or operation of a transit system or other surface use, to the extent that said damage to pipeline was caused by Grantee's failure to design and construct said pipeline with the necessary protective measures consistent with the surface uses and construction of the facilities associated therewith as set forth in Condition Nos. 6. and 7. of 9/26/86/1 -4- 41. raj*,•. � ^' •I,� , ,+rr N` `\.•, + , •' •L Jy_ �i))y) orf ;. . . {y r, '�ti` , .. 'k .,•/ �•+ti�,t��';+',4•j•'.t`•' .... YyA 4. rt�i 777 ` •;�.,'t l •• r`'+ „ S'�?+� i' :�',��,�if!9t7�'�'i,t:t.l�%i�;'�J���9�:;Y7K,'�''v� '° .,; ,�' N. +7!�'iS•IG !t• r^ •Li�.� •1' +,i`'� ' d:` • • ,+ Y•�y.( r :t t'•'Y(�,',V-•y." y,. .. Y4• (.` ( f+. ••(.. i. '1''•.� 1,+(Y"'N'..4r+Y+��.r+.N{°' '�. Wr t /�i .¢��1; :A r �+`•:t: t. r y(" .a• a ri`. ( f+�; r 4 'i,YhY 'i(f`y�. 4 �'{..`.� r` r.:i ,. 1. ,¢¢r,{i Y;• .(., �,' '•',15/�',• ',,'YT-�'65'd '1, ,',��,'+,,. ,�y+//•!�y`. 1 j ,i,w��,', 'y, , }, . rr ��' ��f#�,",�%vi r'"� :�•,' '•)F" ., ,,� + `, �.Y,�''�;SZSrr� '`� 'l+ r,'+,; '•, f r ,:f� '" •-'•....,,. � •�f5' •'�'�'4Y J{'r.,ntt +r. .y.f+.•'t fi��.�, ,n. t, •:i. ,'•bt',.*�J+ / 5���. y' �(Y(i'•.'H.,� "+.,,,,,.„ '�`i.'°;,•' °.wr•!r/,H, .I/°'.`?+.�N f '�' .. ,y (,' r•,,f,�,I �j(j��,r,�, J #,, �4,' i da• ��f�',(: /r.ry., i w4.f'ryti,�y�r 9�I.fV'1;•.'°�. *,' y 4�f r: ' f.S�'Y��r�'r cY�'*'"�i •f. r. t.r�•S, •'�•ir 'r' . ,`.r�'. ,'raw%}'T•' ±t,'.., +).`, '�,,. :"' ,+r" 'ir+. %''/:�t ate?�'�i 1, .t.;'+ ,•'+ , fes,/ri r l r(•r r '.. 'rS`::,'',,,r `L ..r. r+,+Gi 1 `Z'. i •Y op �, .d..to ,ta,V Yft'^'+N!3M.R'!'sY 'WY • ` ffFY.'t!? ,+'"wa"' ''�Y'•. -6 `t,'•?+'t;-'•�It +'{ r )fi •� v .ft`. y.3wsd"�, i•• ' r " . a this Grant of Easement. This hold harmless condition specifically shall not apply in any event where the damage to the pipeline or consequential damage therefrom results from the negligence of the Grantor or its contractor or any agent thereof,. or from construction or surface uses inconsistent with the terms 'set forth in Condition Nos. 6. and 7. of this Grant of Easement. In the event that damage to the Grantee's pipeline occurs due to the ,point negligence of .the Grantor or its contractor or any agent thereof and the Grantee, by failure to design and/or construct said pipeline with the necessary protective measures, each party shall be responsible for said portion of the damages in direct relation to its share of actual t i fault. 8. If ,thq,r Grantee performs any work within the limits of the 'real property described in Exhibit One, the Grantee shall restore the surface. of the ground to its condition prior to the conmencement. of the work at the Granteets''sole cost and expense. 9. If the Grantee proposes to do work of anon-emergency nature which -may interfere with the Grantor's operation of tho transit system the Grants* agrees that, prior to start of that work the Grantor and the Grantee shall enter into an agreement providing a work plan and schedule which minimizes the effect of the work on the operation of { the transit system. Interference shall be defined as any action requiring termination or limitation of revenue service and would Include any excavation, interruption of propulsion power stupply# or penetration of the transit corridor by construction equipment. The parties shall act in an expeditious manner to reach an agreement, and shall not unreasonably delay the Grantee from accomplishing said non-emorgency work, In the event that either party identifies an emergency situation, '.. said party shall notify the second party iaunediatsly of said emergency situation. Emergency shall be defined as a situation which causes discontinuation of the operation of the Granteets or of the operation of the transit service, or a situation pipelines p .rya which presents an immediate threat to the operation of the Grantee's pipeline or the operation of the transit service... M emergency shall additionally include any ruptura, leakage or other damage to , the sewer system which creates a present or an immediate threat of , creating a health hazard or dangerous sanitation condition and where the hazard or dangerous condition cannot be corrected by immediate measures not affecting operations of the transit system thereby :I.Y allowing for the permanent corrective measures on a non-emergency basis. In the event of at, emergency situation, the Grantee shall not be responsible for any loss of transit revenue or other damages to the Grantor resulting from the inconvenience or interruption of service on the Grantors transit system, so long as the Grantee makes every xr reasonable effort to immediately alleviate the cause of the emergency situation In a manner which minimizes the impact on the ; Grantor's transit system operation. .n `::4 9/26/86/1 '"5» .ra r, :R+'R' "''t. ' •.'S: 1i t ,i� ��• �r'e Jr £ 40." Ar, . ryr# j r ..�.,,,f'R .. ..."t'�•�Y ti„F n r•�' r f '..'. Mr �.'r.=� �:( " *}!t j';r.. ,•�,.• - ::± .rw'''+� , ,,,•N;, r i�j yJ',:7 P.t �L4,t a .a.f •t ,r 17y.,q,(k'r,iV •+•, 5 .M 'd! yr'•wr4frYr 'r7, '. ,.1..�-,',t t .: d af++Glk;Jr"'�{yl +slµ 4y ' w 41}rr� iayi+ F1 Yr.` .fix RV Jl•'S4 gwRrJ.•rr�.t,r,..�1�;'. rt t ` r '�@� ` " fr "S d +, r ,'. •• .,r'�(•,:tLyZj' ^,+� rrj rl��+�n7 t 3 N1l +" i Si', �•, p' .y" ° .'l� {;fa *'x 4> }'*: rr. ,. {.` .",« :',:.,r. •y � �{ r '.rYr r, :ri r4 '�.+f.�'` P�•°i rrr ,� ,�,Pf,Yi. P/�' eVR'i� �� t4�!',rt �)iJ3rC7!� �« '1 .++�"t�'n`'.ti1✓`j�iR,r<M'P'}j`�l;�r'.�t-',�t::`�'�• r.°f rr{'i:fqt'i .{�: t , �( 1"•j i' !Y M{MrJ.+.Ji ! ' 1 I. p .Y �^F.]. yt f.Y TM'Sr.. ,t 1. I ..�. Lf�`i<,Wb t i. �+� J .i f �jpti, 'f'ru9^`� .pr�' r.` .e, +',r, ,lr;:a �±' l 'fr kyr; r'• , k� I .+Y ' R ���rl � r�. r 'rr(yr�'. ^T ,f Y• 't'•.�ij tt5.�7i, r 1'�'" +.M'� jS r ;v,nrii u r f> rr � t;:a3J...9 {�*.,.jd•f.:i „}Ygrr r�!y I1� 'P �!♦!' .r4lj (1;n{ rf:r ll %c ,�' �fJ�y i`nSs',`9s.k+/,y ., f• r S, ,t•�,F T'': .t� �'�.� .!`fid a a r 7 4,�rr�! y a��� Jkr'�' �±p r•d 1..' yq{ � <f. t :r r�' r , •„N J °ay,� #' ,�r ,'t f f tr, b s}"+'r 71'ar tt.'{n ♦ rjv' r,. , R 0•.. Y' ' .: �'.9 ,,,/dyr r ! ,��' +� !„� i r ti tt7 t.,>�La ,�_t,�! 1, �rt7+ 'y r+�1r.. Put; f `7• 1 a J i . JtJ` �> r' tit+t �ra'uro.} ,ti , .i r» ; ��R..!,.r+ ^,r'• •�}.,,`l",f�.;�+..: 2 �!'�t�,.., :"YtY/%tI"�a3',�,; ,aai r rn , +M�II�!"'.`""�".�ngr"'*��'gi.�l�hb(.ea�t�.ri.,.,LliiMlfi$S� `t ,,.1 " �r r.,:.+;. ".. ., .+��"IL"r. .w�i,•,,,, '�:"``,""";!�7 10. The Grantor and the Grantee shall require all contractors or contractor: assigns who shall undertake construction on any portion of the real property described in Exhibit One to list the other party as an additional 'insured on the contractor's project policy and further require the contrac*�or to indemnify both parties in a like mariner. 11. The description of the easements contained herein aro based on the best available information. when a more precise location of either oxi,;ting or proposed pipelines have been determined by either field surveying or, detailed engineering data the Grantor and the Grantee ---� hal l .of feci~ ,:,an •,adjuatn�ent , (I=06ase and/or decrease) to the t Base►�eints .provided far herein in order to produce the final easement as intended by this conveyance. 12. The Grantee shall defend, indemnify, save, and hold harmless the Grantor and its officers and employees from any and all claims, costs, and liability for any damages, injury► or death arising from or connected with the performance of this Grant of Easement and the design, construction, operation, and maintenance of all sewer facilities currently within or which may be constructed within the easements described in Exhibit One, due to or claimed or alleged to be due to negligent or wrongful acts► errors, or omissions of the Grantee or any 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 Exhibit One and any immediately adjacent real property owned by the Grantor► and shall make good to and reimburse the Grantor for any expenditures► including reasonable attorney's fees, the Grantor may make by reason of such matters. The Grantee further agrees that the Grantee shall be responsible for any and all damages arising out of inverse condemnation. concerning the design and construction of sewer facilities in existence or to be built within the basements described in Exhibit One solely to the extent of the share of the damages proved corresponding to the Grantee's actual portion of the over-%,11 liability. The Grantor shall defend, indemnify, save, and hold harmless the Grantee and its officers and employees from any and all claims, costs, and liability f.)r any damages', injury, or death arising from or connected with the performance of tnis Grant of Easement and the design, construction, operation, and maintenance of all surface and subsurface use facilities, solely or jointly owned or controlled by •the Grantor, including the existing condition as well as the future maintenance of the surface of the real properties described in Exhibit One and any immediately adjacent real property owned by the Grantor, due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of the Grantor or any person under its control, including but not limited to liability arising from injury or death to members of the public using its real property, and shall make good to reimburse the Grantec% for any expenditures, including reasonable attorney's fees, the Grantee may make by reason of such matters. The Grantor further agrees that the Grantor shall save and hold the Grantee harmless from any and al; 9126186/1 -6- .._..,,...,..........,. ..r....rwwn� ;�+9t'f✓✓M,rJ�►wrrsrwwr�«+o+r.s v; �bt #. ,,•:•y1, s,,+p.�ry r5 •1'l�:�t"�,� t � •• 'y�.�r'.*1 `i damages arising out of inverse condemnation concerning all the Crantor's activities occurring within the real property described in Exhibit One and any immediately adjacent real property owned by the Grantor► save that the Grantee shall be responsible for a share of " the liability corresponding solely to its actual fault. 13. h,'s Grant of Easement shall inure to the benefit and shall be binding upon the heirs► executors► administrators, successors andY. �;. assigns of the respective parties hereto. f Li CONTRA.COSTA COUNTY CENTRAL, CONTRA COSTA SANITARY DISTRICT r in Sys ,,,..�''� By, ,:.. hairman# Board of President of the Board of Supervisors Directors ^} '' Central Contra Costa Sanitary District. County of Contrr Costa► State. of California STATE OF CALIFORNIA )SS. COUNTERSIGNED: . COUNTY OF CONTRA COSTA ) ACKNOWLEDGWNT BY PUBLIC ENTITY JCt'6 (C.0 Section 1191, 1181, 1184) Secretary 6f the Ce ral Contra Costa Sanitary District, r'. Tho=s M. Powers County of Contra Costa, who Is personal' yr knc+rn to ore or State of California proved to me on the basis of satin factory evidence) to be the person ` who oxecuted, this instrument as the above-styled officer(s) of the .;:• above-named public corporation, •' agency or political subdivision of + ' the State of Californias personally appeared before era today and Approved a: jo Fora acknowledged that said public =. entity executed it. `j Dateds Phil Batchelor, Clerk of-the Board of Supervisors E and Cou ty Jldminis r� Bys �'� Deputy • APPROVED AS TO FORH s estman► unset my Y •':;••, 9126/8612 -7'- +t �''f:'�• � , �', � „:' +,'.v'i' �, is ..�v•;� �,,. ;.�.� t' ✓y' y.�i J� ,'; ��, •�` ,r i'L"%f '•1d��3��i"Aw.•,r�, �'�:{J 4'���+ ',.��{ '.G'� its ?�'` Yii7!:��,�{ ��,i` � �" •�,'C'J• f f' 3 �i;�,+�; �•,��.•.,�;?.yi,,;y,;'jt�G`, x y�'� `�{„•t`.�} �yw} �;lt �, �. a r � ; ' !1. .�•++ xi`•.'�•'4it rAAp (f,�.z.� ,; .A�`". .r � :�' ry' �"{r d ;y,,�,. ig,J'/� i.?f�,,.•s.�tial f,{ f r. `s . • ,.:r�;� ,� �`'° ;.;:VVI: r M +RR . 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