2011/03/22 City Council Resolution 2011-23RESOLUTION NO. 2011 -23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN EASEMENT AGREEMENT WITH
SONOMA MARIN AREA RAIL TRANSIT (SMART),
RAILROAD AT SOUTHWEST BOULEVARD
FOR EASTSIDE TRUNK SEWER PHASE II, PROJECT No. 2007 -02
WHEREAS, Sonoma Marin Area Rail Transit District (SMART) is the owner of certain
real property serving as a railroad right of way within the City of Rohnert Park; and
WHEREAS, the City proposes to install, construct and maintain the Eastside Trunk
Sewer Phase II, Project No. 2007 -02 crossing the railroad right of way; and
WHEREAS, city staff and SMART staff have negotiated in good faith an easement agreement
for the purposes of addressing mutually agreeable covenants, terms, conditions and restrictions.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve an easement agreement, attached hereto and
incorporated herein as Exhibit A, by and between SMART, a public agency created under
California law, and the City of Rohnert Park, a California municipal corporation, for good and
valuable consideration and in consideration of the mutual covenants, terms, conditions and
restrictions contained therein.
BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to
execute this agreement in substantially similar form to the attached agreement for and on behalf
of the City of Rohnert Park.
BE IT FURTHER RESOLVED that the City Clerk is hereby directed to complete a
Certificate of Acceptance on behalf of the City of Rohnert Park and record the Easement
Agreement with the County Recorder.
DULY AND REGULARLY ADOPTED this 22 "d day of March, 2011.
CITY OF ROHNERT PARK
AHANOTU: AYE CALLINAN: AYE MACKENZIE: AYE STAFFORD: AYE BELFORTE: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
RECORDING REQUESTED BY:
CITY OF ROHNERT PARK
WHEN RECORDED RETURN TO:
City of Rohnert Park
City Clerk
130 Avram Ave.
Rohnert Park, CA 94928
(Exempt from recording fee per Govt. Code § 273 83 )
APN: 143 -061 -068
EASEMENT AGREEMENT
This Easement Agreement ( "Agreement ") is made by and between the Sonoma Marin
Area Rail Transit District, a Public Agency created under California law ( "SMART "), and the
City of Rohnert Park, a California municipal corporation ( "CITY ').
RECITALS
WHEREAS, SMART is the owner of certain real property (hereinafter referred to as the
"SMART Property ") serving as a railroad right- of-way in the County of Sonoma, that crosses
through the City of Rohnert Park, California, identified as APN: 143 - 061 -068, and more
particularly described as follows:
All that certain real property situated in the County of Sonoma, State of California, being
a portion of the lands of Sonoma-Marin Area Transit District, a public agency under
California law, located and doing business in care of the Sonoma County Transportation
Authority, as described by deed recorded under document number 2004028629 recorded
March 2, 2004, Sonoma County Records,
WHEREAS, with funding from a 1/4 -cent sales tax measure approved by voters in 2008,
SMART is authorized to design, construct, implement, operate, finance, maintain and manage a
passenger rail system and a bicycle /pedestrian pathway from Cloverdale, California to Larkspur,
California, a system with projected ridership of about 1.4 million passengers per year, the
implementation of which entails extensive capital improvements, such as the construction of
train passing sidings, trestle bridge replacements, drainage improvements, a rail maintenance
facility' and 54 miles of Class I pathway and 17 miles of Class II pathway improvements
( "SMART Project");
WHEREAS, CITY, as part of an approximately $30 million capital improvement project
to provide additional wastewater capacity for existing and future development in CITY, wishes
to obtain a permanent easement consisting of a strip approximately 10 feet wide over a portion of
the SMART Property where it crosses Southwest Boulevard near the intersection of Seed Farm
Drive for the purposes of installing, constructing, and maintaining a sewer trunk line, which
when encased will be approximately 42 inches in diameter and will be located approximately 15
Southwest Boulevard Sewer Trunk Easement
feet below ground level ( "Project ").
NOW, THEREFORE, . for good and valuable consideration and in consideration of the
mutual covenants, terms, conditions and restrictions contained herein, SMART and CITY
covenant and agree as follows:
AGREEMENT
1. Grant of Non- Exclusive Easement. SMART hereby grants to CITY a non-
exclusive easement ( "Easement ") over a portion of the SMART Property as more particularly
described in Exhibit "A" (Legal Description of Easement Area) and depicted in Exhibit "B"
(Depiction of Easement Area). The Easement is of the nature, character and extent, and subject
to the conditions, set forth in this Agreement.
2. Description of Easement over SMART Property. The Easement is a perpetual
easement and right -of -way for the purpose of laying down, constructing, reconstructing,
removing, replacing, repairing, maintaining, operating and using the Project; in accordance with
improvement plans entitled: "CITY OF ROHNERT PARR EAST SIDE SEWER TRUNK
PROJECT" in, under, along, and across .the Easement Area, and the right at all times to enter in,
over and upon the Easement Area for all purposes connected with the laying down, constructing,
reconstructing, removing, replacing, repairing, maintaining, operating and using the Project;
provided, however, that such use does not damage or interfere with the SMART Project or
SMART's use of the SMART Property or the improvements existing thereon at any time for
freight or passenger transit purposes and .any purposes reasonably related thereto. Under this
non- exclusive Easement, SMART reserves the right to install, construct, operate, and maintain
both its existing improvements and any future improvements, whether or not owned or operated
by SMART, on the SMART Property provided that such improvements do not materially
interfere with CITY'S rights to use the Easement Area in accordance with this Agreement. The
grant of easement herein is subject and subordinate to the rights of SMART and its successors
and assigns to use the SMART Property in the performance of its governmental and proprietary
functions. CITY acknowledges that this Easement is granted and given subject to all easements,
covenants, conditions, encumbrances, deeds of trust, dedications, offers of dedication,
restrictions, reservations and rights -of -ways of record or apparent from an examination of the
Easement Area as of the date of recordation hereof.
3. Term. The Easement will continue in perpetuity so long as CITY is in
compliance with the terms and conditions of this Agreement.
4. Maintenance of Easement. CITY agrees to maintain at all times all components
of the Project within the Easement Area in good condition and repair at CITY's sole cost and
expense. Any reconstruction or maintenance activities performed by CITY related to the Project
and Easement . may not interfere with SMART's continued use of the SMART Property or the
Easement Area for any purpose.
5. Right of Entry Permit. CITY agrees to obtain from SMART a Right-of-Entry
Permit to enter upon Easement Area for the performance of any routine work. CITY may
designate a contractor to perform such work, in which case that contractor must obtain a Right-
of-Entry Permit from SMART to enter upon Easement Area. SMART may not unreasonably
,Southwest Boulevard .Sewer Trunk Easement
deny any Right-of-Entry Perinit contemplated hereunder. CITY must give notice to SMART
prior to commencement of any work, as required by the Right -of -Entry Permit. In the event of
an actual or threatened emergency that may constitute a threat to the public health, safety or
welfare arising from the operation of the Project that is detected by SMART, SMART's notice to
CITY under Section 10 below will constitute authorization for CITY to enter into the Easement
Area and perform any needed emergency work or repairs, and if such actual or threatened
emergency is first detected by CITY, then CITY will not be required to obtain a Right-of-Entry
Permit, but must, at minimum, provide telephonic notice of such emergency situation to SMART
prior to performing any emergency work or repairs to the Project.
6. Fiber Optic Systems. CITY acknowledges that under this non - exclusive
Easement SMART (or anyone acting with the permission of SMART) may construct,
reconstruct, maintain, and operate fiber optic and other telecommunications systems ( "Systems ")
in, upon, along, across, and beneath Easement Area and SMART rights -of -ways, including the
Easement Area under which. the Project is to be located, provided that any such grant of access,
easement or license to such Systems does not interfere with CITY's rights to use the Easement
Area in accordance with this Agreement.
In the event that SMART subsequent to the date of this Agreement proceeds with the installation
of System in furtherance of the SMART Project or its general operations and can affirmatively
demonstrate (1) that the installation of such System cannot with reasonable commercial efforts
be designed in a manner that avoids CITY's Project and use of the Easement Area and (2) that as
a direct result of CITY's Project changes must be made to the design and installation of the
System within the Easement Area and an area limited to five feet on either side of the Easement
Area that result in increased design and installation costs to SMART in excess of $1000, then
CITY agrees to reimburse SMART for all reasonable additional design and installation expenses
which would not have been incurred except by reason of CITY's use of Easement Area under
this Agreement..
In addition to other provisions of this Agreement requiring CITY to give notice prior to
commencing work, CITY must telephone Qwest Communications, Inc. at (800) 2834237 (a 24-
hour number) to determine whether a System is buried anywhere in the Easement Area. If there
is, CITY will telephone the owner of the System designated by SMART, arrange for a cable
locator, and make arrangements. for relocation or' other protection for the System prior to
beginning any work in the Easement Area.
7. Protect Markers. Project markers in a form and size satisfactory to SMART,
identifying the facility and its owner, must be installed and maintained by and at the expense of
CITY in the vicinity of the Easement Area and upon SMART property as SMART may
reasonably approve. Such markers must be relocated or removed upon reasonable request of
SMART without expense to SMART. The absence of markers does not constitute a warranty by
SMART that there are no subsurface installations.
8. Waste or Nuisance, Rights in Property. CITY may not commit, suffer
or permit the commission by its agents, employees, contractors or invitees of- (a) any waste or
nuisance on the Easement Area; (b) any action, inaction or use of the Easement Area which
interferes or conflicts with the use of the Easement Area by SMART or any authorized person in
accordance with this Agreement; or (c) any action or inaction on the Easement Area in violation
Southwest Boulevard Sewer Trunk Easement
of any law or ordinance. Except as otherwise provided in this Agreement, CITY may not
undertake or permit any activity or use on the Easement Area that is not expressly permitted by
this Agreement.
9. Indemnity. CITY agrees to defend, indemnify, hold harmless, and release
SMART, its officers, agents, and employees, from and against any and all actions, claims,
damages, liabilities, or expenses (collectively, "Claims ") that may be asserted by any person or
entity, including CITY, relating to or arising out of the Project or CITY's use of the Easement
granted herein, provided, however, that this indemnity does not extend to that portion of any
such Claim caused by SMART's sole negligence or willful misconduct. Without limiting the
foregoing indemnity, CITY further agrees to defend and indemnify SMART for any damage to
SMART's Property and any of SMART's chattels and improvements thereon as a result of the
construction, operation, maintenance or repair of the Project. Further, should the Project in any
way disrupt rail service, including both freight and passenger rail service, such that service may
not be provided for any period of time, CITY agrees to defend and indemnify SMART for any
Claims that may result from such disruption to the extent such Claims are caused by or directly
attributable to the Project.
10. Relocation for Grade Separation. In the event that SMART is required to
establish a. grade separation at the intersection of Southwest Boulevard and the SMART right-of-
way, and the grade separation requires relocation of the Project, CITY shall relocate the Project
to accommodate the required grade separation at its sole cost and expense.
11. Enforcement. If, through inspection or otherwise, SMART determines that CITY
is in violation of the provisions of this Agreement or that a violation is threatened, SMART shall
give written notice to CITY of such violation and demand corrective action sufficient to cure the
violation. If CITY fails to cure the violation within 14 days after receipt of notice thereof from
SMART, or under circumstances. where the violation cannot reasonably be cured within a 14 day
period, CITY fails to begin curing such violation within the 14 -day period, or CITY fails to
continue diligently to cure such violation until finally cured, SMART may bring an action to
enforce the provisions of this Agreement, enjoin the violation, recover damages and enforcement
costs for the violation, and require restoration of the Easement Area to the condition that existed
prior to the violation. If SMART reasonably determines that circumstances require immediate
action to prevent or mitigate a material violation or threatened material violation of the
provisions of this Agreement, SMART must immediately provide CITY with notice of such
actual or threatened violation. In the event that CITY fails to promptly respond to such notice or
initiate a cure within a reasonable period of time, not to exceed 48 -hours or such shorter period
as may be appropriate under the applicable emergency circumstances, then SMART may pursue
its remedies and CITY agrees to indemnify SMART for all costs incurred in connection with
such action in accordance with'Section 9 of this Agreement.
12. Compensation for Easement. As consideration for the Easement granted herein,
CITY agrees to pay SMART the sum of One - Thousand Dollars ($1,000.00). Said sum is in
settlement of all matters relating to CITY's acquisition of the Easement conveyed herein,
including, but not limited to, any and all claims by SMART for relocation benefits, loss of
goodwill, and any severance or other damages. CITY agrees to pay all applicable escrow,
closing, and document recording fees incurred. CITY shall also reimburse SMART for any staff
and attorney time to review and prepare documents associated with this Agreement. Upon
Southwest Boulevard Sewer Trunk Easement
receipt of this Easement Agreement, duly executed and acknowledged, CITY shall execute an
acceptance of the Easement Agreement and cause the Easement Agreement to be recorded with
the Sonoma County Recorder.
13. Enforcement Discretion. Enforcement of the provisions of this Agreement shall
be at the discretion of the parties, and any forbearance by a party to exercise its rights under this
Agreement in the event of any breach of any provision of this Agreement by the other party shall
not be deemed or construed to be a waiver by the party of such provision or of any subsequent
breach of the same or any other provision of this Agreement or of any of the party's rights under
this Agreement. No delay or omission by a party in the exercise of any right or remedy upon any
breach by the other party shall impair such right or remedy or be construed as a waiver.
14. Access and Control. Except as otherwise expressly provided in this Agreement,
SMART retains the exclusive right of access to and control over the Easement Area. Nothing
contained in this Agreement shall be construed as precluding SMART's right to grant access to
third parties in and across the Easement Area, except that any such grant of access shall not
interfere or conflict with CITY's rights to use the Easement Area in accordance with the terms of
this Agreement.
15. Succes, sors. This Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their respective successors, heirs, assigns and transferees.
16. Amendment. If circumstances arise under which an amendment or modification
of this Agreement would be appropriate, such amendment shall become effective only upon
mutual consent of the parties. Any such amendment shall be in writing and recorded in the
Office of the Sonoma County Recorder.
17. Notices. Any notice, demand, request, approval, or other communication that
either party desires or is required to be given under this Agreement shall be in writing and may
be given by personal delivery or by mail. Notices, demands, requests, approvals, or other
communications sent by mail should be addressed as follows:
SMART: Sonoma -Marin Area Rail 'Transit
Attn: Property Manager
750 Lindaro St., Suite 200
San Rafael, CA 94901
Southwest Boulevard Sewer Trunk rasement
CITY: City of Rohnert Park
P.O. Box 1489
Rohnert Park, CA 94928
Attn: City Manager
and when so addressed, shall be deemed given upon deposit in the United States Mail, registered
or certified, return receipt requested, postage prepaid. In all other instances, notices, demands,
requests, approvals, or other communications shall be deemed given at the time of actual
delivery. Changes may be made in the names and addresses of the persons to whom notices,
demands, requests, approvals, or other communications are to be given by giving notice pursuant
to this section,
18. Applicable Law and Forum. Interpretation and performance of this Agreement
shall be governed by California law and any action to enforce the provisions of this Agreement
or the breach thereof shall be brought and tried in the County of Sonoma.
19. No Third Party Beneficiaries. - Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in third parties.
20. Integration. Thus Agreement is the final and complete expression of the
agreement between the parties and any and all prior or contemporaneous agreements written or
oral are merged into this instrument.
21. Captions. The. captions in this Agreement have been included solely for
convenience of reference. They are not a part of this Agreement and shall have no effect upon
its construction or interpretation.
22. Survival of Agreement. This Agreement, including all representations,
warranties, covenants, agreements, releases and other obligations contained herein, shall survive
the closing of this transaction and recordation of any deed or other document related hereto.
23. Severabilit . If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full
force without being impaired or invalidated in any way.
24. Authority And Execution. Each person executing this Agreement on behalf of a
party represents and warrants that such person is duly and validly authorized to do so on behalf
of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such
partnership, corporation, or trustee has full right and authority to enter into this Agreement and
perform all of its obligations hereunder.
24. Attorneys Fees. In the event either party pursues any right to enforce the
provisions of this Agreement, the prevailing party shall have the right to collect all costs and
expenses, including attorneys' fees, incurred by the prevailing party in enforcing the obligations
of the other party under this Agreement, as fixed by the court.
Southwest Boulevard Sewer Trunk Easement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed.
By SMART this day of
By CITY this day of
SONOMA -MARIN AREA RAIL TRANSIT DISTRICT:
Attest:
By: By:
Chair, Board of Directors Cleric, Board of Directors
Reviewed as to Substance:
By: Date:
General Manager
Approved as to Form:
BY: Date:
Deputy County Counsel
CITY:
By:
Gina Belforte, Mayor
Attest:
Bv:
Judy Hauff, City Clerk
(signature bloclrs continued on next page)
Southwest Boulevard Sewer Trunk Easement
Approved as to Form:
Bv:
City Attorney
Right -of- -Way Section Manager
Southwest Boulevard Sewer Trunk Easement
Date:
Date:
EXHIBIT A
Legal Description of Easement Area
Southwest Boulevard Sewer Trunk laasement
EXHIBIT A
All that certain real property situate in the County of Sonoma, State of California, being a portion
of the lands of Sonoma -Marin Area Transit District, a public agency under California Law,
located and doing business in care of the Sonoma County Transportation Authority, as. described
by deed recorded under document number 2004 - 028629 recorded March 2, 2004, Sonoma
County Records, being more particularly described as follows:
PERMANENT EASEMENT
A strip of land 10 feet wide, the centerline of which is described as follows:
COMMENCING at the southwesterly corner of Lot "U" as shown on that certain Map entitled
"Colegio Vista Unit 3 "recorded May 3, 1973 in Book 184 of Maps, at Pages 47 through 49,
Sonoma County. Records, from which point the northwesterly corner of said Lot "D" bears North
25 139'40" West as shown on said Map; thence along the southeasterly prolongation of the
westerly line of said Lot "D" also being the easterly line of said lands of Sonoma -Marin Area
Transit District, South 25 139'40" East, 19.56 feet to the TRUE POINT OF BEGINNING; thence
leaving said line, South 65 °32'27" West, 60.01 feet to the westerly line of said lands of Sonoma -
Marin Area Transit District and the terminus of said centerline.
Containing 600 square feet, more or less.
The sidelines of said strip shall be shortened or lengthened to terminate at the westerly and
easterly lines of the said lands of Sonoma -Marin Area Transit District.
.Basis Of Bearings: The westerly line of said Lot "D" taken as North 25 °39'40" West as shown
on said Map.
i f e ?/I l
Jonathan R. Olin LS 7590
Expires 3/31/12
End of Description
JA02056 - Rohnett Park \02056 05 024 r:nstside'rrtutk Sewer\SriltVLY\LtiGAL DUSCRIPTIONSWART l OFT tipdated.ftc
Page I of 1
EXHIBIT B
Depiction of Easement Area
Southivest Boulevard Sewer Trunk Easement
I \
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1
APN
143-- 061 --066
S� LOT ..p.,
.164 MAPS 47
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APN
01 143-048-011 \
P.O.C. O +�
go''2
APN
143-061-027
7
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fl +�
_.)►'�� S25'39'40toE
19.56'
LEG
P.O.C. =POINT OF COMMENCEMENT
T.P,O.B. =TRUE POINT OF BEGINNING
r--w-- -�- �- ~---�' PARCEL LINE
CENTER LINE
Lu PERMANENT EASEMENT AREA
0 0 N 6 U 6 T IN* N N 0 INN 9 N
P.O.B. N ato
P
1O Off+