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2008/07/22 City Council Resolution 2008-118RESOLUTION NO. 2008 -118 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING AND APPROVING AN EASEMENT AGREEMENT WITH SONOMA COUNTY WATER AGENCY AND ACCEPTANCE OF EASEMENT PROPERTY FOR THE COPELAND CREEK BIKE PATH PROJECT CITY PROJECT NO. 2006-11 WHEREAS, the City of Rohnert Park requires easement property for public use for the construction, operation and maintenance of Copeland Creek Bike Path; and WHEREAS, the property is owned by the Sonoma County Water Agency. BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby authorize and approve an easement agreement by and between Sonoma County Water Agency, a body corporate and politic of the State of California, and the City of Rohnert Park, a municipal corporation, to include permanent easement over portions of the Agency Property for the purposes of construction maintenance and operation of the City of Rohnert Park Copeland Creek Bike Path Project. BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute this easement agreement and acceptance in substantially similar form to the attached agreement and acceptance for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 22nd day of July, 2008. RptINB11T ATTEST: CITY OF ROHNERT PARK Mayor BREEZE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE MACKENZIE: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) RECORDED AT NO FEE PER GOVERNMENT CODE § 6103 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rohnert Park 6750 Commerce Blvd. Rohnert Park, CA 94928 EASEMENT AGREEMENT DRAFT This Easement Agreement ( "Agreement ") is made by and between the Sonoma County Water Agency ("Agency ") and the City of Rohnert Park ( "City "). RECITALS WHEREAS, Agency is the owner of certain real property within City of Rohnert Park and the City of Cotati, County of Sonoma, State of California commonly known as the Laguna De Santa Rosa Channel and Copeland Creek Channel, and being more particularly described as follows: All that certain real property situated in the City of Rohnert Park, County of Sonoma, State of California, described as follows: The lands of the Sonoma County Water Agency as described in those certain Grant Deeds recorded on October 11, 1966 in Book 2235 at Page 496 of Official Records of the County of Sonoma and on Junk, 26, 1962 in Book 1897 at Page 656 of Official Records of the County of Sonoma. APN: 046 -072 -025 & APN: 143 -391 -030 All the aforementioned property is hereafter referred to as the "Agency Property". WHEREAS, City wishes to obtain a permanent easement.over portions of the Agency Property for the purposes of construction of the City of Rohnert Park Copeland Creek Bike Path Project (the "Project ") described as follows: That portion of the hereinabove described real property being more particularly described in Exhibit "A ", and as shown in Exhibit "A -1 for reference, attached hereto and made a part hereof (hereinafter referred to as the "Easement Area"). Pagel of 5 - NOW, THEREFORE, for good and valuable consideration and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, Agency and City covenant and agree as follows: AGREEMENT 1. Grant of Non - Exclusive Easement. Agency hereby grants to City a non - exclusive easement, together with access rights, on and over the Easement Area of the nature, character and extent, and subject to the conditions, set forth in this Agreement ("Easement"). 2. Description of Easement over Agency 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 Park Copeland Creek Bike Path Project, dated June 3, 2008 (hereafter referred to as the "Project Plans "), in, under, along, and across the Easement Area and the right at all times to-enter in, over, under, and upon said Easement Area for all purposes connected with the laying down, constructing, reconstructing, removing, replacing, repairing, maintaining, operating and using fixed works indicated in the Project Plans; provided, however, that said use does not damage or restrict Agency's full use of the Agency Property or the improvements existing thereon in any way. Agency reserves the right to install, construct, operate, and maintain both its existing improvements and any future improvements on the Agency Property. This easement is granted, on the condition that City's use of the easement does not damage or restrict Agency's full use of existing Agency improvements in any way. The grant of easement herein is subject and subordinate to the rights of Agency and its successors and assigns, to use the Agency Property in the performance of its governmental and proprietary functions. 3. Term. The easement granted in section 2 above shall continue indefinitely so long as City is in compliance with the terms and conditions of this Agreement. 4. Maintenance of Easement. City shall maintain all improvements within the Easement Area at City's sole cost and expense. Any reconstruction or maintenance activities performed by City and related to the easement shall not interfere with the Agency's continued use of the Agency's Property or the Easement Area or for any purpose. City,shall not materially alter or reconstruct the Projects without first obtaining Agency's written approval of plans for such alteration or reconstruction, which approval shall not be unreasonably held, conditioned or delayed. 5. Waste or Nuisance; Agency's Rights in Property. City shall not commit or suffer: (a) any waste or nuisance on the Easement Area; (b) any action or use of the Easement Area which interferes or conflicts with the use of the Easement Area or Agency Property by Agency or any authorized person; or (c) any action on the Easement Area in violation of any applicable law or ordinance. Except as otherwise provided in this Agreement, City shall not undertake or permit any activity or use on the Easement Area that is inconsistent with the purpose of this Agreement, including, without limitation, the following activities: (a) constructing, reconstructing, replacing, repairing, or maintaining any building, structure, utilities, or other improvement other than as shown on the Project Plans or approved by Agency in writing; (b) altering the surface or contour of the land in any manner not consistent with the Project Plans, including, but not limited to, excavating or removing soil, sand, gravel, rock, sod, trees, shrubs, plants or vegetation; (c) degrading or eroding the soil or polluting any surface or sub - surface waters; (d) dumping, accumulating, or storing trash, ashes, garbage, waste, junk, non - operative vehicles, or other Page 2 of 5 materials; (e) damaging the integrity of the surface beyond normal wear and tear; (f) exploring for or developing and extracting minerals and hydrocarbons by any.mining.method, surface or otherwise; (g) parking any vehicle; and (h) placing or leaving any personal property of City or City's tenants. 6. Non - Liability of AgengN Indemnity. Agency and its officers, agents, and employees shall not be liable to City or any third party for any injury, loss, or damage arising out of or in connection with the use of the easement granted herein. City agrees to defend, indemnify, hold harmless, and release Agency, and its officers, agents, and employees, from and against any and all actions, claims, damages, liabilities, or expenses that may be asserted by any person or entity, including City, arising from the Project or arising from the use of the easement granted herein by City or by any third party in connection with the construction, operation, or maintenance of the Project. City agrees to compensate Agency for any damage to Agency property as a result of the construction, operation, or maintenance of said Project. If future laws or regulations require a greater separation between the Project and any Agency improvements, City shall relocate the Project accordingly and be responsible for any costs associated with the relocation. 7. Enforcement. If through inspection or otherwise Agency determines that City is in violation of the provisions of this Agreement or that. a violation is threatened, Agency 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 fourteen (14) days after receipt of notice thereof from Agency, or under circumstances where the violation cannot reasonably be cured within a fourteen.(14) day period, fails to begin curing such violation within the fourteen (14) day period, or fails to continue diligently to cure such violation until finally cured, Agency 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 to the condition that existed prior to the violation. If Agency reasonably determines that circumstances require immediate action to prevent or mitigate a violation or threatened violation of the provisions of this Agreement, Agency may pursue its remedies under this paragraph upon telephonic notice to City and without waiting for the period for cure to expire. 8. 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 parry shall impair such right or remedy or be construed as a waiver. 9. Access and Control. Except as otherwise expressly provided in this Agreement, Agency retains the exclusive right of access to and control over the Easement Area. Nothing contained in this Agreement shall be construed as precluding Agency's right to grant access to third parties across the Easement Area. 10. Successors. This Agreement shall be binding on and shall inure to ,the benefit of the parties hereto and their respective successors, heirs, assigns and transferees. 11. Amendment. If circumstances arise under which an amendment or modification of this Page 3 of 5 Agreement would be appropriate, City and Agency may jointly amend this Agreement. Any such amendment shall be recorded in the Office of the Sonoma County Recorder. 12. Notices. Any notice, demand, request, approval, or other communication that either parry desires or is required to be given under this Agreement shall be in writing and maybe given by personal delivery or by mail. Notices, demands, requests, approvals, or other communications sent by mail should be addressed as follows: Agency: Sonoma County Water Agency P.O. Box 11628 Santa Rosa, CA 95406 City: City of Rohnert Park 6750.Commerce Boulevard Rohnert Park, CA 94928 Phone: 707- 5882232 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. 13. 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. 14. 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. 15. Integration. This 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. 16. 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. 17. 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. . Page 4 of 5 IN WITNESS WHEREOF, Agency and City have executed this Agreement as set forth below. SONOMA COUNTY WATER AGENCY: Executed by the Sonoma County Water Agency this day of , 2008, pursuant to authority granted by Resolution No. dated 2008: I- Michael Kerns Chair, Board of Directors Reviewed as to Substance: Attest: By: Clerk, Board of Directors By: Date: Randy D. Poole General Manager /Chief Engineer Approved as to Form: By. Date: Deputy County Counsel CITY OF ROHNERT PARK, a municipal corporation: LOW Jake Mackenzie Mayor Resolution Number: Approved as to Form: in City Attorney Date: Date: Page 5 of 5