EX
HIBIT 2
AMEN
DED AND RESTATED PARTIAL ASSIGNMENT OF
NON-EXCLUSIVE EASEMENT
AND
GRANT OF NON-EXCLUSIVE EASEMENT
(ON NAVY LAND)
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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 ____ EA__-___
Alameda Point – Navy Portion
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: _______________
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
NONEXCLUSIVE 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 herein 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 4th, 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 (“Original Easement” ) within the Retained Government Property (as defined in t he Original Easement) to access, use, install, maintain, operate, construct, replace, and DocuSign Envelope ID:
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.
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 DocuSign Envelope ID:
automatically terminate with respect to all or any portion of the Assigned Easement Area at such time as the 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 ing ress 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 Grante e and the Grantee's successors and assigns forever.
5 . 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
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, DocuSign Envelope ID:
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.
6. 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 or about a “historic property” as defined by 36 CFR § 800.16, the Grantee shall comply with the provisions of Section 6.
7. 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 the NAS Alameda Historic District, including excavation, construction, DocuSign Envelope ID:
alteration or repair, without the prior written approval of the Grantor and the Government, as appropriate.
8. ASSIGNMENT AND TRANSFER. The Grantee shall not assign or transfer this Assignment, or any interest therein, without the prior written consent of the Grantor.
9. 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 DocuSign Envelope ID:
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 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 contai nment, 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.
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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 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 l ocal 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.
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10. ENVIRONMENTAL CONDITION OF PROPERTY. The Assigned Easement Area is subject to the following land use controls (LUCs) which have been identified in the Final Record of Decision (ROD) for Operable Unit-2C (OU-2C) Drain Lines Located outside Buildings 5 and 400. The ROD requires LUCs to limit the exposure to hazardous substances and to maintain the integrity of the remedial action. a. In accordance with the LUC Remedial Design, the following activities are prohibited:
• Soil disturbance or other intrusive activities as follows and as described in Exhibit D1 and D2:
o Above and below the Industrial Waste Line requiring remedial action (IWL-RA), regardless of depth
o Horizontally within 5 feet of the centerline of IWL-RA, including 5 feet from the end of the cut IWL-RA piping, beginning at the surface and extending vertically, regardless of depth
• Removal of the IWL-RA piping unless such activity is conducted in accordance with the site management plan (SMP) approved by the Federal Facilities Agreement signatories (U.S. Navy, U.S.
Environmental Protection Agency, California Department of Toxic Substances Control, and California Regional Water Quality Control Board).
• Magnetic tape marks the end of the cut IWL-RA piping remaining in place and extends 5 feet from the end of the piping, thus identifying the extent of the IC area for the cut piping. If intrusive activities are conducted (in accordance with the SMP approved by the FFA signatories) that remove this magnetic tape, it will be replaced after the area has been backfilled to properly identify the extent of the IC area.
• ICs do not prohibit the addition of fill to increase the current elevation.
The current surface elevation will be documented at the time of such work by the property owner and provided to the FFA signatories, and a barrier (such as plastic netting) will be placed over the IC areas prior to addition of the fill.
b. For purposes of this entire Section, the following terms shall have the following meanings:
1. "Toxic or Hazardous Materials" means all manner of substances, pollutants, contaminants, and waste to which Applicable Environmental Laws pertain, expressly including petroleum, petroleum products, and materials defined in 48 C.F.R. § 252.223-7006 (a)(ii) and (iii), as well as per-and polyfluoroalkyl substances (PFAS).
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2. "Contamination" means a level of Toxic or Hazardous Materials in the air, soil, or water (surface water or ground water), that exceeds levels allowed by Applicable Environmental Laws.
3. “Government” means the United States Department of Navy, Base Reuse and Closure Program Management Office.
4. “Premises” means the Assigned Easement Area.
c. "Applicable Environmental Laws" means:
(1) Federal, state, and local statutes, laws, ordinances, rules, and regulations, to which the Grantor is made subject by Federal law or to which the Grantee is made subject by Federal and state law;
(2) Executive Orders of the President of the United States; (3) Decisions of courts and administrative tribunals of competent jurisdiction; (4) Administrative orders of regulatory agencies of competent jurisdiction (involuntary or on consent); and
(5) regulations and directives of the Department of Defense and the Department of the Navy, which pertain to the human environment (as defined in the National Environmental Policy Act of 1969); transportation of hazardous material; and human health and safety (including occupational safety). d. Applicable Environmental Laws include, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), the Clean Air Act (42 U.S.C. § 7401, et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601, et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651, et seq.), and 10 U.S.C. § 2692, as amended. e. "Release" means any discharge, spill, emission, leaking, pumping, injection, excavation, deposit, disposal, leaching, or migration into the environment, accidental or otherwise, or introduction into the environment by any other means or method. f. “Remedial Action" means: investigating or monitoring the environmental condition of the Premises and clean-up, removal, response (including emergency response), and restoration of the Premises, as per Applicable Environmental Laws, due to the presence or suspected presence of Contamination or a Release or suspected Release of Toxic or Hazardous Materials.
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g . If during the term of this Easement the Grantee becomes aware that a Release of Toxic or Hazardous Materials has occurred due to acts or omissions of the Grantee, its agents, or contractors, whether or not such Release results in Contamination of the Premises, the Grantee will give verbal notice to the Government within twenty-four (24) hours of becoming aware of the Release, providing all relevant facts and circumstances. The Government may direct the Grantee to make a detailed written report of these facts and circumstances within a time certain. h . The Grantee, at its sole expense, will promptly take all action necessary to comply with Applicable Environmental Laws pertaining to a Release described in subparagraph 13.b, including but not limited to: (a) report the occurrence to appropriate Federal, state, or local regulatory authorities, if so directed by the Government; (b) take timely and effective steps to minimize the Release and its impact on human health and the environment; and (c) take Remedial Action. The Government may direct the Grantee to provide all information requested by the Government regarding such actions within a time certain.
i . The Grantee will ensure that all activities conducted on the Premises by the Grantee, its agents, or contractors are carried out in compliance with Applicable Environmental Laws. The Grantee will provide verbal notice to the Government within twenty-four (24) hours of receiving any complaint, order, directive, claim, citation, or notice from any governmental authority or any other person or entity alleging noncompliance with or a violation of an Applicable Environmental Law on the Premises.
The Grantee, at its sole expense, will promptly take all necessary action directed by Federal, state, or local regulatory authorities of competent jurisdiction to achieve or regain compliance with Applicable Environmental Laws. The Government may direct the Grantee to make a detailed written report, within a time certain, of the facts and circumstances underlying the alleged noncompliance or violation. Without limitation of the foregoing, the Government, in response to acts or omissions of the Grantee, its agents, or contractors may, in its discretion, take Remedial Action to remedy Contamination on the Premises or to achieve or regain compliance with Applicable Environmental Laws. Grantee shall reimburse the Government for any and all actual costs, direct and indirect, incurred by the Government as a result of the Government taking Remedial Action to remedy Contamination on the Premises caused by the Grantee, its employees, authorized agents, or contractors. j . The Government may at any time inspect the Premises or cause the Premises to be inspected, to assess whether the operations of the Grantee, its agents, or contractors are in compliance with Applicable Environmental Laws. To assist in this evaluation, the Grantee, its agents, and contractors will provide to the Government, or another entity, as the Government may direct, for examination and copying, all relevant books, records, documents, and other material in their possession.
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k. The Government, with good cause, may from time- to-time require the Grantee to conduct tests and analyses to assess whether the Premises are in compliance with Applicable Environmental Laws, and based on the results thereof, to so certify to the Government. Such tests and analyses shall be conducted in a manner satisfactory to the Government by recognized professionals approved by the Government. If the Government and the Grantee cannot reach agreement as to what tests and analyses shall be conducted, by whom, and when, the Government may perform such tests and analyses or cause such tests and analyses to be performed.
11. 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
Bldg. 50, 2nd 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
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With a copy to:
City of Alameda
Alameda City Hall
2263 Santa Clara Avenue Alameda, CA 94501-4456
Attention: Public Works Department
If to the Grantee:
East Bay Municipal Utility District
375 11th St, MS 903 Oakland, CA 94607
Attn: Real Estate Services
12. FAILURE TO INSIST ON COMPL IANCE. 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.
13. 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.
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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.
14. 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
d. Exhibit D. Portion of Assigned Easement Area subject to Land Use Controls
[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
A municipal corporation
By: __________________________
Nancy Bronstein, Acting Interim City Manager
APPROVED AS TO FORM – CITY ATTORNEY
By: ______________________________
Len Aslanian, Assistant City Attorney
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
CALIFORNIA AlL-PURPOSE ACKNOWLEDGMENT CML CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
Here Insert Name and Title of the Officer
Name(s) of Signer(s)
who 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 executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public
Place Notary Seal Above
OviiuNAL
Though this section is optional, completing this inrormation can deter alteration of the document or frauduient reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
[1] Corporate Officer - Title(s):
€ Partner - € Limited € General
€ Individual € Attorney in Fact
fJ Trustee € Guardian or Conservator
€ Other:
Signer Is Representing:
Signer's Name:
rl Corporate Officer - Title(s):
€ Partner - € Limited [1] General
€ Individual € Attorney in Fact
€ Trustee [1] Guardian or Conservator
€ Other:
Signer Is Representinq:
@2014NationalNotaryAssociationawww.NationalNotary.orga1-800-USNOTARY(1-800-876-6827) ltem#5907
EXHIBIT A
Conveyance Agreement
Exhibit A
EXHIBIT B
Original Easement
Exhibit B
EXHIBIT C
Assigned Easement Area
EXHIBIT D
Portion of Assigned Easement Area Subject to Land Use Controls
IR Site 12
IR Site 10
Former Building 29
Pump House
WEST REDLINE A VE
WEST MIDWAY AVE
WEST TOWER AVE
LEXINGTON STREET
SARATOGA STREET
MONARCH STREETFormer IW
Pump Station 1
Former IW
Pump Station 2
IR Site 5
BLDG. 5/5A
BLDG. 400/400A
BLDG. 4
BLDG. 2
BLDG. 422
BLDG. 39
BLDG. 3
BLDG. 32
BLDG. 62
BLDG. 134
BLDG. 1
BLDG. 76
BLDG. 10
BLDG. 6
BLDG.
500
BLDG.
405
BLDG. 614
BLDG. 43
BLDG. 30
MH1-9MH1-7
MH1-6
MH1-4 MH1-5MH1-3MH1-2
MH1-1
MH1-13
MH1-8
MH1-14
G:\ALAMEDA\GIS_DOCUMENTS\PROJECT_MAPS\OU2C\IWL_LUC_RD\ALA_002_OU2C_INDUSTRIAL_ICS.MXD DATE: 5/20/2020 0 200 400
SCALE IN FEET
Legend
Pump Station
Manhole Cover
IWL-RA: Remains in Place,
Requires ICs
Removed IWL With No ICs
IR Site Boundary
Abbreviations and Acronyms:
IC - Institutional Control
IR - Installation Restoration
IWL - Industrial Waste Line
BLDG - Building
RA - Remedial Action
SMP - Site Management Plan
U.S. DEPARTMENT OF THE NAVY
BASE REALIGNMENT AND CLOSURE
PROGRAM MANAGEMENT OFFICE WEST
SAN DIEGO, CALIFORNIA
FIGURE 3
OU-2C INSTITUTIONAL CONTROLS
BOUNDARIES
FOR INDUSTRIAL WASTE LINE/ASSOCIATED SOIL
OPERABLE UNIT 2C, ALAMEDA POINT
ALAMEDA, CALIFORNIA
See upper left
corner of map
for description
See upper left
corner of map
for description
Soil Disturbance or other Intrusive Activities are
Prohibited above and below the IWL-RA,
regardless of depth, and 5 feet horizontally
from the IWL-RA, including within 5 feet from the
end of the cut IWL-RA piping, beginning at the
surface and extending vertically, regardless
of depth, unless such activities are conducted
in accordance with a SMP approved by
the FFA signatories. See LUC RD Section 4.1
for IC details.
Residential and Sensitive Use Land Restriction;
No Elementary and Secondary Schools, Child
Care Facilities, and/or Playgrounds.
IC Boundaries
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA
FIGURES
DCN: APTM-0006-4553-0031
EXHIBIT D1
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
EXHIBIT D2
LEGAL DESCRIPTION FOR AN INDUSTRIAL WASTELINE EASEMENT OVER A PORTION OF LANDS
OWNED BYTHE UNITED STATES OF AMERICA, FORMERLY IDENTIFIED AS NAVALAIR STATION
ALAMEDA, CALIFORNIA LYING WITHIN THE CITY AND COUNTY OF ALAMEDA AND THE CITY AND
COUNTY OF SAN FRANCISCO
A.P.N. 74-890-001-47
BEING A STRIP OF LAND LYING WITHIN THE CITY AND COUNTY OF ALAMEDA AND THE CITY AND
COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, SITUATED ON A PORTION OF PARCEL ONE, LANDS
OWNED BY THE UNITED STATES OF AMERICA, FORMERLY IDENTIFIED AS NAV AL AIR STATION ALAMEDA, AS SHOWN ON THE RECORD OF SURVEY N0. 1816 FILED IN BOOK 28 0F RECORDS OF SURVEY, PAGES 14 THROUGH 25, AND SHOWN AS "NAP" OR "NOT A PART" ON THE RECORD OF SURVEY N0. 2565 ENTITLED PHASE 1, STATE LANDS EXCHANGE ALAMEDA POINT, FILED IN BOOK 39 0F RECORDS OF SURVEY, PAGES 88 THROUGH 100, BOTH IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE MOST NORTHEAST CORNER OF THAT CERTAIN NAVAL AIR STATION PARCEL ENTITLED "NAP" OR "NOT A PART" AND THE NORTHWEST CORNER OF THAT CERTAIN "TRUST ADDITION LAND 5" OR "TAL5" PER THE RECORD OF SURVEY N0. 2565 FROM WHICH A FOUND NATIONAL OCEANIC SURVEY DISK ST AMPED "CHAN 1980" BEARS SOUTH 82ol5'56" EAST 255.98 FEET;
THENCE SOUTH AIONG THE EAST BOUNDARY-OF SAID NAVAL AIR STATION PARCEL BEING THE EAST LINE OF SAID "NAP" AND THE WEST LINE OF "TAL5" SOUTH 04o02'03" WEST 374.46' FEET; THENCE SOUTH 05oll'36" WEST 125.55' FEET; THENCE LEAVING LAST SAID BOUNDARY LINE AT A RIGHT ANGLE TO LAST SAID COURSE NORTH 84o48'24" WEST 4.20' FEET TO THE POlfSIT OF BEGINNING OF THIS DESCRIPTION; THENCE SOUTH ALONG A LINE PARALLEL WITH THE EAST LINE OF SAID NAP PARCEL SOUTH 05oll'36" WEST 67.09' FEET; THENCE SOUTH 52o27'06" WEST 27.23' FEET; THENCE SOUTH 02o39'24" WEST 97.42' FEET;
THENCE SOUTH 07o41'Ol" WEST 20.54' FEET;
THENCE SOUTH 03o23'll" WEST54.22' FEET;
THENCE SOUTH 04o52'58" WEST 1047.54' FEETTO A POINTTHAT BEARS SOUTH 82o41'31" WEST20.59' FEET FROM THE SOUTHWEST CORNER OF THE CERT AIN PARCEL DESIGNATED AS "ATL3" ON RECORD OF SURVEY N0. 2565; THENCE SOUTH 04o47'41" WEST 675.12' FEET; THENCE SOUTH 38"'50'38" EAST 58.31' FEET;
THENCE SOUTH 85o24'23" EAST 55.58' FEET;
THENCE SOUTH 03o45'55" WEST 52.30' FEET;
THENCE NORTH 85o00'Ol" WEST 110.20' FEET;
THENCE SOUTH 04o56'30" WEST 240.17' FEET;
THENCE NORTH 85oll' 46" WEST 229,92' FEET;
THENCE NORTH 85o08'52" WEST 142.16' FEET;
THENCE NORTH 06o26'05" EAST 72.01' FEET;
THENCE NORTH 85o07'36" WEST 928.40' FEET;
THENCE NORTH 39o55' 42" WEST 76.82' FEET;
THENCE NORTH 05oll' 43" EAST 366.97' FEET;
THENCE NORTH 66o33'40" EAST70.78' FEET;
THENCE NORTH 6.38' FEET;
THENCE EAST 10,00' FEET-
A3-1 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
THENCE SOUTH 12.95' FEET;
THENCE SOUTH 66o33'40" WEST 71.42' FEET;
THENCE SOUTH 05oll'43" WEST 356.88' FEET;
THENCE SOUTH 39o55'42" EAST 68.50' FEET-
THENCE SOUTH 85o07'36" EAST 934.51' FEET;
THENCE SOUTH 06o26'05" WEST72.01' FEET;
THENCE SOUTH 85o08'52"-EAST 131.87' FEET;
THENCE SOUTH 85oll'46" EAST 219.95' FEET-
THENCE NORTH 04o56'30" EAST 240.20' FEET;
THENCE SOUTH 85o00'Ol" EAST 109.99' FEET-
THENCE NORTH 03o45'55" EAST 32.22' FEET;
THENCE NORTH 85o24'23" WEST 50.02' FEET;
THENCE NORTH 38o50'38" WEST 66.62' FEET;
THENCE NORTH 04o47'41" EAST 674.19' FEET;
THENCE NORTH 84o47'49" WEST 257.64' FEET;
THENCE SOUTH 69o40'52" WEST 60.16' FEET;
THENCE NORTH 20ol9'08" WEST 10.00' FEET;
THENCE NORTH 69o40'52" EAST 62.43' FEET;
THENCE SOUTH 84o47'49" EAST 259,84' FEET;
THENCE NORTH 04o52'58" EAST 1042.48' FEET;
THENCE NORTH 03o23'll" EAST 54.59' FEET;
THENCE NORTH 07'41'01" EAST20.48' FEET;
THENCE NORTH 02o39'24" EAST 101.62' FEET;
THENCE NORTH 52o27'06" EAST 27.50' FEET;
THENCE NORTH 05oll'36" EAST 52.72' FEET;
THENCE NORTH 84o48'24" WEST32.52' FEET;
THENCE NORTH 05oll'36" EAST 10.00' FEET;
THENCE SOUTH 84o48'24" EAST42.52' FEETTO A POINTTHAT BEARS NORTH 84o48'24" WEST4.20' FEET FROM THE EAST BOUNDARY OF SAID NAVAL AIR STATION PARCEL RECORD OF SURVEY N0. 2565 BEING THE EAST LINE OF SAID "NAP" AND THE WEST LINE OF "TAL5" AND THE POINT OF BEGINNING.
CONTAINING 1.09 ACRES, MORE OR LESS AS DERIVED FROM GROUND DATA PRESENTED HEREIN.
ALL AS SHOWN ON EXHIBIT "B", CONSISTING OF SIX SHEETS ATTACHED HERETO AND BYTHiS REFERENCE MADE A PART HEREOF.
THE BASIS OF BEARINGS AND COORDINATES FOR THIS DESCRIPTION ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM ZONE Ill, NAD83. EPOCH 1991.35 ALL DISTANCES HEREIN REFLECT GROUND DATA
TO OBTAIN GRID DISTANCES DIVIDE GROUND DISTANCES BY THE COMBINED SCALE FACTOR OF
1.00007055.
PREPARED BY BELLECCI & ASSOCIATES., INC
IN CONFORMANCE WITH THE CALfFORNIA
PROFESSIONAL IAND SURVEYORS ACT, ON
SEPTEMBER 10, 2019, UNDER THE DIRECTION OF
ALEXANDER V. FONG, PLS 9252. FONG
9252
A3-2 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
EXHIBIT B
LEGAL DESCRIPTION FOR AN INDUSTRIAL WASTELINE EASEMENT OVER A PORTION OF LANDS
OWNED BY THE UNITED STATES OF AMERICA, FORMERLY IDENTIFIED AS NAVAL AIR STATION
ALAMEDA, CALIFORNIA WITHIN THE CITY AND COUNTY' OF ALAMEDA AND THE CITY AND COUNTY
OF SAN FRANCISCO
COORDINATE LISTING
u NORTt-IING m m LONGITUDE
204 "MAIN-ATL" 2111476.474 6034971.158 37'46'48.4333 122'17'29.1619 237 "CHAN" 2115375.270 6040926.650 37'47'26.6806 122'18'08.3938 204 [Ac"uAvsExThqNu"D Mu71Nc.tseTs DISK IN MONUMENT WELL AT THE NORTH WESTERLY CORNER OF 237 ["chxx" NATIONAL OCEANIC SURVEY DISK STAMPED "CHAN 1980" ABOUT 350 FEET NORTHEASTERLY OF THE NORTH GATE TO THE ALAMEDA NAVAL AIR STATION LOCATED ON AN OLD 17 FEET BY 42 FEET CONCRETE BUILDING FOUNDATION ON THE ESTUARY SHORLINE.
BASISOFBEARINGS: ,
r
THE BASIS OF BEARINGS FOR THIS EXHIBtT WAS DETERMINEO BY, , OAKIAND INNER HARBOR CHANNEL S%UxNu'-aMvO"UvMEsoNTyso'pOol'iuzs23a7oiCs"yoNviy"t'DuoPOslo'oc2sOi4cbvo c'Yorath-...,_c"oFoA""% oa:NcoWnEo=RoErc'sRuDroF1soU"t'sss'otsg'%1s's(s2s8=wR:-al4ThxucD-'sciuc Pu8bL,/o""8pa""4"MADAiPT237_- (CALCUUTED). " 2z'i'7,'%-17&%yc, KV//I / "-''s 86 (/) Ld 2 TTL8 T: "
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RE\/. DATE.
REV. DATE.
A3-3 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
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(OBellecci & Associates,inc.
DATE: 9/10/2019 SCALE: NO SCALE
PROJECT NO.: 19051 SHEET 2 0F 6
CMIEngineerlng * LandSurveylng REV. DATE.
2200 Diamond Boutevard, Bulls 100 Concord, CA 94520 Phone 1925) 686-4effA9 Fax ffll6) e8&41$8
REV. DATE.
REV. DATE.
43-4 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
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DATE: 9/iO/2019 ' SCALE: 1"=100'
'PROJECT NO.: 19051 SHEET 3 0F 6
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2290 Dlsunond Boul*vam, au% 100 Concord. ca 946S10 Phone 4916) 688-4669 Pax ffl2eD 688-4aU
REV. DATE.
RE\/. DATE.
A3-5 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATTACHMENT 3
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DATE: 9/10/2019 SCALE: 1 "=100'
PROJECT NO.: 19051 SHEET 4 0F 6
-.____--- IJ=--a- -C-i.v-II-E-n-g-lneering *...LandSurveylng-_ RE\/. DATE. 2290 Dlamond Boutevard, Bulls 100 Concord, OA 94620 Phone (926) 686-4 € !Affl Pax $92!D el86-4188
REV. DATE.
REV. DATE.
A3-6 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATT ACHMENT 3
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DATE: 9/10/2019 SCALE: 1"=100'
PROJECT NO.: 19051 SHEET 5 0F 6
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REV. DATE.
RE\/. DATE.
A3-7 DCN: APTM-0006-4553-0031
LAND USE CONTROL REMEDIAL DESIGN
ALAMEDA POINT
ALAMEDA, CALIFORNIA ATTACHMENT 3
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TTL# "TRUST TERM)NATION LANDS' PARCEL PER 39 RS 88
OBellecci & Associates,inc.
DATE: 9/10/2019 SCALE: 1"=100'
PROJECT NO.: 19051 SHEET 6 0F 6
-----------CIV}lEn-glne-erlng--*-L-a-ndS-ur-v-eyl-ng-- - -- - REV. DATE. 2290 Dlamond Bwlevard, 8u% 100 Conss>rd, OA 94520 Phone € 918) 688-4669 %x ffl2ffl 688-4838
RE\/. DATE.
REV. DATE.
A3-8 DCN: APTM-0006-4553-0031