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HomeMy WebLinkAboutT-5312 - Agreement/Covenant - 5/21/2007 Documentary Transfer Tar—$0.00 05/09/2007,20070092174 For the Bene/it of.' FRESNO METROPOLITAN FLOOD ® 0 CONTROL DISTRICT z 5469 EAST OLIVE ® FRESNO CA 93727 W Recording In ormation LU AGREEMENT FOR COMMON USE OF EASEMENTS LOCATION: Tract 5312 and Tract 5237 APN: 310-270-07 and 310-601-22 w THIS AGREEMENT, made and entered into this/-S �y of , 2006, by and between the CITY OF FRESNO, a municipal corporation, hereinafter referre to "CITY", and FRESNO METROPOLITAN FLOOD CONTROL DISTRICT,hereinafter referred to as"FMFCD", with reference to the following Recitations. RECITATIONS: A. FMFCD is the owner of an easement and right-of-way, located on Lot 24 of Tract 5312 and Lot 321 of Tract 5237 between East Redlands Avenue and East Dayton Avenue to the west of North Locan Avenue, to construct, install, operate, maintain, repair, and reconstruct an underground storm drainage pipeline and surface drainage channel, across, over, and through that real property. B. CITY has or will acquire an easement interest in certain lands in the same area as the FMFCD's easement, and CITY intends to use this new easement interest for the purpose of constructing, maintaining and operating an 8-inch diameter PVC C-900 pipeline for potable water purposes for Tract 5312 and future development in the vicinity. C. A portion of CITY's easement will overlap FMFCD's pre-existing easement,which overlapping portion is more specifically described as that area shown on the diagram attached hereto as Exhibit "A" and Exhibit`B", being hereby designated as the"Area of Common Use". D. The improvements to be constructed by CITY within the Area of Common Use are an 8-inch PVC C-900 water main within a 225 linear foot 20-inch diameter steel casing (hereinafter referred to as the"Improvements"). E. FMFCD and CITY wish to establish certain conditions under which the Area of Common Use shall be used by the parties. CADocuments and Settings\mikeceTocal Settings\Temp\city of fresno common use of easement agrmt{t5312-5237)revised(mmm).doe Page 1 AGREEMENT NOW,THEREFORE, it is agreed as follows: I FMFCD hereby consents to the use by CITY of the Area of Common Use for purposes of constructing,maintaining and operating the Improvements. CITY's use of the Area of Common Use shall be subject to FMFCD's right to fully use the Area of Common Use for all of FMFCD's purposes, and to the terms and conditions herein contained. FMFCD does not by this Agreement subordinate any rights it may have in the Area of Common Use to any use which CITY shall make of the land. CITY acknowledges that by FMFCD's consent to CITY's use of the Area of Common Use, FMFCD is making no representation or warranty regarding the existence or non-existence of any third parties claiming a right, title or interest in the Area of Common Use. II CITY shall,at its own cost and with FMFCD's prior approval,locate,construct,and maintain the Improvements in the Area of Common Use in such a manner and of such material as may be required so that it will not at any time be a source of danger to or interference with the present or future uses of FMFCD. CITY is specifically required to coordinate the construction of the Improvements so that it does not interfere with FMFCD's storm drain system and maintenance schedules. The constructed facilities shall be in conformance with the sewer and water plans to be approved for Tract 5312 (incorporated herein by reference). The right of FMFCD to approve such construction details is solely for the benefit of FMFCD and is not intended to assign to FMFCD any responsibility for the safe and proper construction of the Improvements, such responsibility and liability being entirely assigned to Licensee. Approval by FMFCD of construction details shall not result in an assumption of liability for the Improvements. III All of the Improvements constructed or installed pursuant to this Agreement shall be the property of CITY, and all appurtenances and facilities installed or existing in the Area of Common Use which are related to FMFCD's facilities shall be the property of FMFCD. Except as herein otherwise provided,neither FMFCD nor CITY shall have any right,title, or control over the other's the property other than it already has under applicable law. IV Except as expressly set forth herein, this Agreement shall not in any way alter, modify or terminate FMFCD's easement in the Area of Common Use. Both FMFCD and CITY shall use the Area of Common Use in such a manner as not to unreasonably interfere with the rights of one 1AClients\Bonadelle Homes-1346\13460401-Tr5312\city of fresno(t5312-5237)(mmm).doc Page 2 a S another and nothing herein shall be construed as a release or waiver of any claim for compensation or damages which FMFCD or CITY may now have, or may hereafter acquire, resulting from the construction or alteration of existing facilities or the construction or alteration of additional facilities by either FMFCD or CITY which causes damage to or unreasonable interference with the use of the Area of Common Use by the other party. V CITY shall be responsible to pay, and shall reimburse FMFCD upon demand, for any reasonable.cost incurred by FMFCD for work performed by FMFCD that is caused by or required by CITY's construction,maintenance or use of the Improvements,whether such work was completed at CITY's expense or as reasonably determined to be necessary by FMFCD. Except as described above, FMFCD and CITY shall be responsible for the maintenance, repair,alteration,improvement or relocation of their respective facilities within the Area of Common Use. Nothing in this Agreement shall relieve the Parties of any responsibility toward the other for damage to the other's property located outside of the common use area. VI To the fullest extent permitted by law, CITY agrees to be solely responsible for any and all injuries, damages, and claims to persons or property arising out of its use of the Area of Common Use,except for any such claims arising out of the negligence or willful misconduct of FMFCD or its directors,officers,employees or authorized volunteers. CITY agrees to defend,hold harmless, and indemnify FMFCD, its directors, officers, employees or authorized volunteers against any and all such injuries, damages, and claims. This indemnification agreement shall not be restricted to any insurance proceeds. VII Except in the event of an emergency, or as necessary to maintain the FMFCD's storm drain pipeline,each party shall give the other reasonable notice before performing or permitting any work affecting the other's facilities in the Area of Common Use, and shall furnish the other party with plans and specifications describing the work to be done beforehand. Neither party shall permit installation of facilities by others in the Area of Common Use without the written consent of the other party. The reviewing party shall have the right to specify reasonable conditions on,or changes in,the proposed work and schedule when necessary to prevent damage to its facilities or interference with its operations in the Area of Common Use. Where such changes shall result in additional expense, such expense shall be borne by CITY. Each party agrees to repair any damage to the other party's facilities caused by work permitted,directed or performed by it within the Area of Common Use, except that where CITY's facilities within the Area of Common Use must necessarily be damaged, destroyed or removed by FMFCD to accommodate repair,maintenance,modification or CADocuments and Settings\mikece\Local SettingsUemp\city of fresno(t5312-5237)(mmm).doc Page 3 replacement of FMFCD's facilities, FMFCD shall have no obligation to restore CITY's affected facilities. In the event of an emergency, no such notice shall be required and either party may proceed to do what is reasonably necessary to prevent serious loss or damage and to protect the public health and safety. An emergency shall be deemed to exist if immediate action is reasonably required to prevent serious loss or damage to life or property, or to protect the public health and safety. VIII This Agreement shall apply to and bind successors and assigns of the respective parties hereto. IX Violation of any term of this Agreement shall be cause of termination of the Agreement,and in such an event, FMFCD shall have all remedies available at law or equity to enforce FMFCD's right to the unimpeded use of the Area of Common Use. No termination of this Agreement shall release CITY from liability hereunder, whether of indemnity or otherwise. IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the day and year first above written. "CITY" "FMFCD" CITY OF FRESNO FRESNO METROPOLITAN FLOOD CONTROL DISTRICT / .. . . By: By: k.,.. Michael Kim, Public Works Director DATE Bob Van Wyk, District Marfager DATE �I ATT s� a _ By Deputy Da ©, 1:\C1ients\Bonade11e Homes-1346\13460401-Tr5312\city of fresno(t5312-5237)(mmm).doc Page 4 EXHIBIT "A" COMMON USE AGREEMENT FOR TRACT No. 5312 TRACT 5237 VOL 2.OF PLATS, PAGESa± 5 SHEET 1 OF 2 F.C.R. I I SOUTHWEST CORNER I I I I LOT 48, EGGERS COLONY BOOK 4 OF PLATS AT PAGE 60. F.C.R. 20'00 I 26 25 10'a 24 23 10' 1 j 20' I I I AREA OF I I COMMON USE 322 321 320 OQRpfEssin 323 D. 20'Q I I m o. 30501 I 10'PUE I I p. l v k\/08 'P CIV1�- ?�P 1 lF OF CALF M EAST DA YTON AVENUE TRACT No. 5237 VOL 74 OF PLATS, PGS. 25-32, F.C.R. LEGEND: BASIS OF BEARINGS ® REPRESENTS AREA FOR COMMON USE AGREEMENT THE EAST LINE OF THE SOUTHWEST (TOTAL AREA=1,027t SF) 1/4 OF SECTION 23. T. 13 S., R. 21 E., M.B.D.&M. AS SHOWN ON RECORD - PREVIOUSLY OFFERED FOR PUBLIC STREET PURPOSES ON TRACT OF SURVEY AS RECORDED IN BOOK 48 No. 5237 OF RECORD OF SURVEYS, PAGE 35. F.C.R. TAKEN TO BE N 00'00'20' E PUE PUBLIC UTILITY EASEMENT PREVIOUSLY OFFERED ON TRACT No. 5237 Q 20' WIDE STORM DRAIN PIPELINE EASEMENT RECORDED AS DOC. No.aW 7 , O.R.F.C. RECORD OWNER Q09�1 93 O 20' WIDE STORM DRAIN CHANNEL EASEMENT RECORDED OODRA AVALON. INC., A CALIFORNIAC AS DOC. No.2oo s -3 o;89�O.R.F.C. �---� CORPORATION 10' WIDE WATER M N EASEMENT APN: 310-601-22 RECORDED AS DOC. No.662212Y . O.R.F.C." Q 20' WIDE STORM DRAIN PIPELINE EASEMENT RECORDED DEC. 29, SCALE: 1" = 40' 2005 AS DOC. No. 2005-303890 & 2005-303891, O.R.F.C. 0 20' 40' 80' PREPARED BY: YAMABE & HORN ENGINEERING, INC. 1300 EAST SHAW AVE., SUITE 176 FRESNO, CA 93710 06/20/06...04334EAS-WTR2-CU.0W0 SHEET 2 OF 2 EXHIBIT"A" COMMON USE AGREEMENT TRACT 5237 REAL PROPERTY IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THE EAST 10.00 FEET OF THE WEST 20.00 FEET OF LOT 321 OF TRACT 5237 RECORDED IN VOLUME 74 OF PLATS AT PAGES 25 THRU 32, FRESNO COUNTY RECORDS. QppFESS/0,� D. F� m No.30501 7O xpires 3/31/08 civi glFOF CAO F:\2004\04-334\Word Docs\04334EAS-WTR-CU.doc /v pFESS/ON EXHIBIT "B" QR D COMMON USE AGREEMENT FOR TRACT No. 5312 TRACT 5312 m VOL 2.OF PLATS, PAGES SHEET 1 OF 2 3 s01 F.C.R. / Exp. 3/31/08 l s /V,\- ���` EAST REDLANDS AVENUE N • r �rF OF CALF - - - - N / I I 10'PUE —� 20'QQ 10' 26 25 20' 24 23 SOUTHWEST CORNER AREA OF LOT 48, EGGERS COLONY I COMMON USE ` BOOK 4 OF PLATS AT PAGE 60, F.C.R. I I 323 11 322 I I 321 1 320 1 TRACT No. 5237 VOL 74 OF PLATS, PGS. 25-32, F.C.R. LEGEND: BASIS OF BEARINGS ® REPRESENTS AREA FOR COMMON USE AGREEMENT THE EAST LINE OF THE SOUTHWEST 1/4 (TOTAL AREA=I,000* SF) OF SECTION 23, T. 13 S.. R. 21 E., M.B.D.&M. AS SHOWN ON RECORD OF . TO BE OFFERED FOR PUBLIC STREET PURPOSES ON SURVEY AS RECORDED IN BOOK 48 OF TRACT No. 5312 RECORD OF SURVEYS, PAGE 35. F.C.R. TAKEN TO BE N 00'00'20" E PUE PUBLIC UTILITY EASEMENT TO BE OFFERED ON TRACT No. 5312 ��A� RECORD OWNER 20' WIDE STORtA DRAIN PIPELINE EASE BN5312 L.P., A CALIFORNIA LIMITED O RECORDED -QSI AS DOC. No. PARTNERSHIP O.R.F.C. 20' WIDE STORM DRAIN CHANNEL EASEMENT !1 APN: 310-270-07 Q RECORDED 42-1.29-0 AS DOC. No.w O.R.F.C. 10' WIDE WATER MAIN EASEMENT SCALE: 1" = 40' RECORDED -�-D2 AS DOC. Nor�iq!'I O.R.F.C. 0 20' 40' 80' 20' WIDE STORM DRAIN PIPELINE EASEMENT PREPARED BY: Q RECORDED DEC. 29, 2005 AS DOC. No. YAMABE & HORN ENGINEERING. INC. 2005-303890 & 2005-303891. O.R.F.C. 1300 EAST SHAW AVE., SUITE 176 FRESNO, CA 93710 06/20/06...04334EA5-wTR-CD.DWG + a: SHEET 2 OF 2 EXHIBIT`B" COMMON USE AGREEMENT TRACT 5312 REAL PROPERTY IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THE EAST 10.00 FEET OF THE WEST 20.00 FEET OF LOT 24 OF TRACT 5312 RECORDED IN VOLUME OF PLATS AT PAGES,[! &2�FFRESNO COUNTY RECORDS. 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