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RECORDING REQUESTED BY
East Bay Municipal Utility District
AND WHEN RECORDED MAIL TO
East Bay Municipal Utility District
P. O. Box 24055 - MS #903
Oakland, CA 94623
Attn: Real Estate Services (RK)
R/W 5724 EA19-014
Alameda Point – Navy Portion
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 074 089000147
Pursuant to Government Code Section 27383, Grantee is exempt from paying recording fees.
R&T 11911 - Consideration is less than $100
Certificate of Acceptance Attached
AMENDED AND RESTATED PARTIAL ASSIGNMENT OF NON-EXCLUSIVE
EASEMENT
AND
GRANT OF NON-EXCLUSIVE EASEMENT
THIS AMENDED AND RESTATED PARTIAL ASSIGNMENT OF NON-
EXCLUSIVE EASEMENT AND GRANT OF NON-EXCLUSIVE EASEMENT
(“Assignment and Grant ”) is made by and between the CITY OF ALAMEDA , a municipal corporation, hereinafter called either the “City” or “Grantor”, and EAST BAY MUNICIPAL UTILITY DISTRICT, a public corporation organized and existing under the laws of the State of California, hereinafter called the “District” or “ Grantee”. The Grantor and the Grantee are sometimes individually referred to he rein as a “Party” and collectively referred to herein as the “Parties.”
RECITALS:
WHEREAS, the United States of America (“ Government”), and the Grantor did enter into that certain Memorandum of Agreement for the Conveyance of Portions of the Naval Air Station Alameda from the United States of America to the Alameda Reuse and Redevelopment Authority dated June 6, 2000, as amended (the “Conveyance Agreement”) , whereby the Government did agree to convey certain portions of the former Naval Air Station, Alameda to the Grantor, which is attached hereto as Exhibit A;
WHEREAS, the City is a party to the Grant of Non-Exclusive Easement For Access and Maintenance of Utility Systems At The Former NAS Alameda executed on June 4 th, 2013 and recorded on June 6, 2013 in the Official Records of Alameda County as Series No. 2013-199835 (the “Original Easement”) between the City and the Government, which is attached hereto as Exhibit B;
WHEREAS, the Original Easement granted to the City a non-exclusive easement
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(“Original Easement ”) within the Retained Government Property (as defined in the Original Easement) to access, use, install, maintain, operate, construct, replace, and repair the Systems (as defined in the Original Easement) on the Retained Government Property;
WHEREAS, the Original Easement will terminate with regard to portions of the Retained Government Property at such time as those portions of the Retained Government Property are conveyed from the Government to the Grantor;
WHERAS, the Original Easement permits the City to assign or transfer an interest in the Original Easement to a utility service provider;
WHEREAS, the District is a utility service provider which desires to provide, and for which the City desires that the District provide, water and wastewater utilities to a portion of the Retained Government Property described in Exhibit C (the “Assigned Easement Area”) in accordance with the terms and conditions of the Original Easement and this Assignment and Grant; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged by each party hereto, the parties hereby agree as follows:
1. ASSIGNMENT AND ACCEPTANCE OF EASEMENT; GRANTEE’S WORKS.
a. The Grantor non-exclusively assigns its rights and obligations of the Original Easement with respect to the Assigned Easement Area to the Grantee for the term of the Original Easement with respect to the Assigned Easement Area for the purpose of laying down, constructing, reconstructing, removing, replacing, repairing, maintaining, operating and using, as the Grantee may see fit, any facilities necessary for the transmission of water and wastewater utilities, including all necessary braces, connections, fastenings and other appliances and fixtures, in, under, along and across the Assigned Easement Area. The Grantee agrees that said facilities and utilities shall be constructed and maintained at a depth of at least eighteen (18) inches below the present surface of the ground.
b. The Grantor makes no warranty as to the usability of the Assigned Easement Area or as to its fitness for any particular purpose.
2. ASSUMPTION AND COMPLIANCE WITH ORIGINAL EASEMENT. The Grantee hereby accepts this assignment of the Assigned Easement Area “as is, where is” and assumes and agrees to comply with all rights and obligations of the City as set forth in the Original Easement and Conveyance Agreement with respect to the Assigned Easement Area. The Grantee acknowledges and will comply with all notices and restrictions set forth in the Original Easement.
3. ASSIGNMENT TERM; TERMINATION. The assignment of the Original Easement shall remain in effect for so long as the Original Easement remains in effect and shall automatically terminate with respect to all or any portion of the Assigned Easement Area at such time as the
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Original Easement terminates with respect to all or any such portion of the Assigned Easement Area. Further, in the event Grantee violates any of the terms or conditions set forth herein, or in the Original Easement, Grantor may terminate this Assignment and Grant by the provision of ten (10) days’ written notice to Grantee.
4. GRANT OF NON-EXCLUSIVE EASEMENT. At such time as the assignment of the Original Easement terminates with respect to any portion of the former Naval Air Station, Alameda, as described in Exhibit D, attached hereto and made a part hereof (the “Easement Property”), Grantor hereby grants to the Grantee and to its successors and assigns a perpetual easement and right-of-way for the purpose of laying down, constructing, reconstructing, removing, replacing, repairing, maintaining, operating and using, as the Grantee may see fit, any facilities necessary for the transmission of utilities, including all necessary braces, connections, fastenings and other appliances and fixtures, in, under, along and across that certain real property described as the Easement Property.
TOGETHER with the right of ingress to and egress from said right-of-way and the right at all times to enter in, over and upon said right-of-way and every part thereof and also to use said right- of-way for all purposes connected with the laying down, constructing, reconstructing, replacing, removing, repairing, maintaining, operating and using said utilities.
The Grantor and the Grantor's heirs, successors, or assigns shall not place or permit to be placed on said right-of-way any building or structure, including but not limited to houses, garages, outbuildings, swimming pools, tennis courts, retaining walls, decks, and patios nor allow to be done anything which may interfere with the full enjoyment by the Grantee of the rights herein granted.
The above paragraph notwithstanding Grantor reserves the right to landscape the easement area in a manner consistent with the Grantee's use; however, such use by Grantor shall not include the planting of trees nor a change in the existing surface elevation (grade) of the easement area by more than one (1) foot without first having prior written consent of the Grantee.
The Grantee agrees that said utilities shall be constructed and maintained at a depth of at least eighteen (18) inches below the present surface of the ground.
The Grantee agrees upon the completion of any of its works hereunder to restore as near as possible the surface of the ground to the condition in which it was prior to the commencement of said work.
TO HAVE AND TO HOLD, all and singular, the rights above described unto the Grantee and the Grantee's successors and assigns forever.
4. USE OF THE ASSIGNED EASEMENT AREA AND EASEMENT PROPERTY.
a. The sole purpose of this Assignment and Grant is to access, use, install, maintain, operate, construct, replace, and repair of water and wastewater utilities infrastructure within the Assigned Easement Area and the Easement Property.
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b. The Grantor and the Grantor’s heirs, successors, or assigns shall not place or permit to be placed on the Assigned Easement Area or Easement Property any building or structure, including but not limited to houses, garages, outbuildings, swimming pools, tennis courts, retaining walls, decks, and patios, nor allow to be done anything which may interfere with the full enjoyment by the Grantee of the rights herein granted.
c. The above paragraph (a) notwithstanding, the Grantor reserves the right to landscape the Assigned Easement Area and Easement Property in a manner consistent with the Grantee’s use; however, such use by the Grantor shall not include the planting of trees nor a change in the existing surface elevation (grade) of the Assigned Easement Area or the Easement Property by more than one (1) foot without first having prior written consent of the Grantee.
d. The Grantee shall be responsible for direct costs related to the use, installation, maintenance, operation, construction, replacement, and repair of water and wastewater utility infrastructure under this Assignment and Grant. Any and all damage to the Assigned Easement Area or Easement Property resulting from the activities of the Grantee under this Assignment and Grant shall be repaired by the Grantee at no expense to the Grantor or the Government, and the Assigned Easement Area or Easement Property shall be restored to its pre-construction condition.
e. The Grantee agrees upon the completion of any work pursuant to this Assignment and Grant to restore as near as possible the surface of the ground to the condition in which it was prior to the commencement of said work.
5. NOTICE REQUIRED FOR WORK.
a. Except in the case of an emergency, the Grantee shall not conduct any subsurface excavation, digging, drilling, or other disturbance of the surface of the (i) Assigned Easement Area without prior written notification to the Grantor and the Government, and (ii) Easement Property without prior written notification to the Grantor . For purposes of this paragraph, “emergency” shall mean an unexpected, serious occurrence or situation urgently requiring prompt action. The Grantee shall submit written notice of any work performed in an emergency as soon as practicable.
b. The Grantee shall immediately cease any excavation conducted in accordance with paragraph (a) if it discovers the presence of hazardous substances or wastes, pollutants or contaminants in any soil or groundwater, and promptly notify the Grantor and the Government and cognizant regulators in writing of such fact. Thereafter, the Grantee may proceed in accordance with all applicable laws and regulations.
c. With respect to any work to be performed in o r about a “historic property” as defined by 36 CFR § 800.16, the Grantee shall comply with the provisions of Section 6.
6. HISTORIC PROPERTY. A portion of the Assigned Easement Area and Easement Property is located within the NAS Alameda Historic District, a historic property listed in the National Register of Historic Places. The Grantee shall not undertake any activity that may affect
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the NAS Alameda Historic District, including excavation, construction, alteration or repair, without the prior written approval of the Grantor and the Government, as appropriate.
7. ASSIGNMENT AND TRANSFER. The Grantee shall not assign or transfer this Assignment, or any interest therein, without the prior written consent of the Grantor.
8. ENVIRONMENTAL PROTECTION PROVISIONS.
a. The Grantee and its contractors shall comply with all applicable federal, state and local laws, regulations, rules, orders and standards that are or may become applicable to Grantee’s activities under this Assignment and Grant.
b. In connection with environmental remediation on the Assigned Easement Area or the Easement Property, the Grantee agrees on behalf of itself, its successors and assigns, that the Grantor, or its officers, agents, employees, contractors and subcontractors, and the Government, or its officers, agents, employees, contractors and subcontractors, if appropriate, shall have the right, upon reasonable notice to the Grantee, to enter upon the Assigned Easement Area in any case in which an action is found to be necessary at such property in satisfaction of the Government or Grantor obligations under CERCLA and other applicable environmental statutes and regulations.
c. Neither the Grantee, nor its successors and assigns, shall have any claim on account of such entries against the United States or any of its officers, agents, employees, contractors or subcontractors, or the Grantor or any of its officers, agents, employees, contractors or subcontractors. The right to enter shall include the right to conduct tests, investigations and surveys, including, where necessary, drilling, test-pitting, boring and other similar activities. Such right shall also include the right to construct, operate, maintain or undertake any other response or corrective action as required or necessary, including, but not limited to monitoring wells, pumping wells and treatment facilities. In exercising these rights of access, except in case of imminent and substantial endangerment to human health or the environment, Grantor, shall give the Grantee reasonable notice of any action to be taken related to such response or corrective actions on the Easement Property. Furthermore, the Grantee agrees to cooperate in good faith with the Grantor and the Government to minimize any conflict between the necessary environmental investigation and response or corrective action and the Grantee’s use of the Assigned Easement Area or the Easement Property. Any inspection, survey, investigation or other response, corrective or remedial action undertaken by the Grantor or the Government will, to the maximum extent practical, be coordinated with representatives designated by the Grantee.
d. The Grantee shall be solely responsible for obtaining at its cost and expense any environmental permits required for its operations under the Assignment and Grant, independent of any existing permits held by the Government or the Grantor. The Grantee acknowledges that notwithstanding the Government being named as owner of the Assigned Easement Area, or the Grantor being named as owner of the Easement Property, in any permit granted to the Grantee, the Grantee is solely responsible for complying with all permit terms and conditions, including payment of associated fees. In the event the Grantee has knowledge of a violation of the terms
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and conditions of any permit, the Grantee shall promptly notify the Grantor, and if applicable to the Assigned Easement Area, the Government, and the appropriate environmental regulatory agencies and take any necessary actions to come into compliance with the permit.
e. The Grantee acknowledges the rights retained by the Government and the State of California, and each of their officers, agents, employees, contractors, and subcontractors, in the Conveyance Agreement and the Original Easement. The Grantee shall have no claim on account of any inspections against the Grantor, the State of California, the United States of America or any officer, agent, employee, contractor or subcontractor thereof.
f. The Grantee agrees to comply with the provisions of any health and safety plan in effect during the course of any of the response or remedial actions described in the Original Easement, and shall comply with all applicable federal, state and local occupational safety and health regulations. Any claim by the Grantee against the Government or any officer, agent, employee, contractor or subcontractor thereof which is caused by such entry shall be addressed as provided by law.
g. The Grantee shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act or its applicable state equivalent for any accumulation of hazardous wastes derived from the activities of Grantee on the Assigned Easement Area. The Grantee shall be solely responsible for providing at its own cost and expense hazardous waste storage, as may be necessary or required by law or regulation, except as specifically authorized by the Grantor, or if applicable, the Government, in writing.
h. Department of Defense component accumulation points for hazardous and other waste will not be used by the Grantee. Neither will the Grantee permit its hazardous wastes to be commingled with hazardous waste of the Government or the Grantor.
i. The Grantee shall have a Government-approved plan for responding to hazardous waste, fuel and other chemical spills prior to commencement of operations on the Assigned Easement Area. Should the Government or the Grantor provide any personnel or equipment whether for initial fire response and/or spill containment, or otherwise on request of the Grantee, or because the Grantee was not, in the opinion of the Government or the Grantor conducting timely response cleanup actions, the Grantee agrees to reimburse the Government or the Grantor, as applicable, for its reasonable and necessary costs associated with such response or cleanup.
j. If the Grantee intends to make any improvements or repairs that require the abatement or removal of Asbestos Containing Materials (“ACM”), Lead Based Paint (“LBP”), or Polychlorinated biphenyl (“PCBs”), the Grantee shall comply with all federal, state, and local laws and regulations applicable to such abatement or removal.
k. The Grantee releases, remits, and forever discharges the Grantor and the Government, and each of their officers, agents and employees, of and from any and all claims, causes of action, injuries, damages and demands whatsoever in law or in equity arising out of the Grantee’s activities upon and use of the Assigned Easement Area or the Easement Property to the
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extent caused by the Grantee’s activities upon and use of the Assigned Easement Area or the Easement Property. The Grantee agrees to indemnify, defend, and hold harmless the Grantor and the Government against all fines, claims, damages, lawsuits, judgments, and expenses arising out of or from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal caused or created by the Grantee’s occupancy, use or operations giving rise to Grantor or Government liability, civil or criminal, responsibility under federal, state or local environmental laws. The Grantee’s obligations hereunder shall apply whenever the Grantor or the Government incurs costs or liabilities for the Grantee’s activities as provided hereunder, to the extent caused by Grantee’s activities upon and use of the Assigned Easement Area or the Easement Property. This provision shall not apply to the extent that claims, demands, actions, proceedings, losses, liens, costs and judgments (including fines and penalties) are caused or created by concurrent active or sole negligence of the City or the Government, or each of their officers, agents, employees, or contractors, or by preexisting conditions on the Easement Property that were not caused by Grantee. This provision shall survive the expiration or termination of the Assignment and Grant.
l. The Assigned Easement Area is an installation of the Department of Defense, and as such, the storage, treatment or disposal of toxic or hazardous materials on the Assigned Easement Area is prohibited, except as authorized by the Government in accordance with 10 U.S.C. § 2692.
m. Grantor hereby provides information to Grantee that Quitclaim Deeds conveying the Easement Property to Grantor provide notice and use restrictions relating to military activities prior to the conveyance of the Easement Property to Grantor involving the use and presence of pollutants, contaminants, hazardous substances, emerging contaminants, and chemicals of concern, and that Grantee is obligated to inform itself as to such notices, and comply with such use restrictions. In addition to any Notices provided by the Government to the Grantor in the Quitclaim Deeds conveying the Easement Property to Grantor, Grantor hereby provides notice to Grantee that military activities prior to the conveyance of the Easement Property to Grantor involved the use and presence of perfluorinated compounds such as PFAS and PFOA associated with fire-fighting activities. Further information relating to the Government’s use, storage, and or release of pollutants, contaminants, hazardous substances, emerging contaminants, and chemicals of concern on the Easement Property may be found in the Government’s Administrative Record.
9. SUBMISSION OF NOTICES.
Notices shall be sufficient under this Assignment and Grant made in writing and to the addressees described below, or to such other addressees as the parties hereto may designate from time to time in writing:
If to the Government:
Real Estate Contracting Officer
Base Realignment and Closure Program Management Office West 33000 Nixie Way
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Bldg. 50, 2 nd Floor
San Diego, CA 92147
If to the Grantor:
City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
Attention: City Manager
With a copy to:
City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
Attention: City Attorney
With a copy to:
City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501-4456
Attention: Base Reuse Department
If to the Grantee:
East Bay Municipal Utility District
375 11
th St, MS 903
Oakland, CA 94607
Attn: Real Estate Services
10. FAILURE TO INSIST ON COMPLIANCE. The failure of the Grantor or the Government to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Assignment and Grant or the Original Easement shall not be construed as a waiver or relinquishment of the Grantor’s or the Government’s right to the future performance of any such terms, covenants or conditions and the Grantee’s obligations in respect to such future performance shall continue in full force and effect.
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11. MISCELLANEOUS PROVISIONS.
a. The singular includes the plural. The masculine gender includes the feminine. “Shall” is mandatory. “Should” and “may” are permissive.
b. This Assignment and Grant constitutes the entire understanding and agreement of the parties with respect to the matters set forth herein. This Assignment and Grant supersedes all negotiations or previous agreements between the parties respecting this Assignment and Grant.
All waivers of the provisions of this Assignment and Grant must be in writing and signed by the appropriate representatives of the Grantee and the Grantor.
c. The recitals set forth in this Assignment and Grant are a part of this Assignment and Grant.
d. The captions of this Assignment and Grant are for convenience and reference only and shall not define, explain, modify, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Assignment and Grant.
e. Where the consent or approval of the Grantor or the Grantee is required or necessary under this Assignment and Grant, the consent or approval shall not be unreasonably withheld.
f. This Assignment and Grant may be executed in multiple counterparts, each of which shall be deemed an original, all of which, together, shall constitute one in the same instrument.
g. The persons executing this Assignment and Grant have the capacity and are authorized to execute this Assignment and Grant as the representative(s) of their respective party, and to bind their respective party to the terms and conditions of this Assignment and Grant.
12. LIST OF EXHIBITS. The following Exhibits are attached and made a part hereof:
a. Exhibit A. Conveyance Agreement
b. Exhibit B. Original Easement
c. Exhibit C. Assigned Easement Area
[SIGNATURES ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF , the parties hereto by their duly authorized representatives have executed and delivered this Assignment and Grant effective as of the date first written above.
ASSIGNMENT AND GRANT OF NON-EXCLUSIVE EASEMENT
BY CITY OF ALAMEDA
CITY OF ALAMEDA
By: ___________________________
Eric J Levitt, City of Alameda City Manager
APPROVED AS TO FORM:
By: ____________________________
ACCEPTANCE OF
ASSIGNMENT AND GRANT OF NON-EXCLUSIVE EASEMENT
BY EBMUD
EAST BAY MUNICIPAL UTILITY DISTRICT
By: ____________________________
Mamdoh Elawady aka Matt Elawady
Manager of Real Estate Services
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Exhibit A
Exhibit B
C