HomeMy WebLinkAboutT-5446 - Agreement/Covenant - 9/1/2006 t�
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FRESNO County Recorder
Robert C, 6lerner
DOC— 2005-0019047
Thursday, JAN 27, 2003 11:27:43
Tt l Pd $1.N Nbr-0081720386
EMF/R5/1-8
Documentary Transfer Tax-$0.00
For the Benefit of.
FRESNO IRRIGATION DISTRICT
2907 SOUTH MAPLE AVENUE Recording Information
FRESNO CA 93725-2218
AGREEMENT FOR RELOCATION OF OPEN CHANNEL
OWNED BY FRESNO IRRIGATION DISTRICT
LOCATION: N/W CHURCH AND CLOVIS AVENUES
APN: 481-040-02,481-040-07S AND 481-040-11
THIS AGREEMENT,made and entered into this_JAN day of December, 2004,
by and between McMILLIN SUNNYSIDE RANCH, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, hereinafter referred to as "FIRST PARTY", and the FRESNO
IRRIGATION DISTRICT,a public corporation in the County of Fresno,State of California,
hereinafter referred to as "DISTRICT";
WITNESSETH:
WHEREAS,FIRST PARTY is the owner of that certain real property in the County
of Fresno, State of California,described as follows:
Parcel 1: APN 481-040-02
All that portion of the north half of the northeast quarter of Section 17,Township 14 South,
Range 21 East, M.D.B.&M., in the City of Fresno, County of Fresno, State of California,
according to the United States Government Survey lying north and east ofFancher Creek;
Excepting the north 30 feet of said section conveyed to Pacific Improvement Company, a
Corporation,by Deed recorded in Book 65,Page 76 of Deeds.
FID No:2004-DO06-J 1320-03
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Parcel 2: APN 481-040-07S
That portion of the east half of the northeast quarter of Section 17, Township 14 South,
Range 21 East, M.D.B.&M., in the City of Fresno, County of Fresno, State of California,
according to the United States Government Survey lying north and west of Fancher Creek;
Except one quarter of all the oil, gas hydrocarbon substances and minerals in, under and
which may be produced from said real property, and one quarter of all of the royalties,
payments,rights and benefits reserved to the lessor in any oil,gas or minerals lease of said
Iand,and the right to enter upon said real property and to explore and prospect for and store
and remove said oil,gas,hydrocarbons and minerals therefrom,and the right to construct and
maintain on said land such roads, pipe lines, telephone lines, tanks, buildings and other
appurtenances as may be reasonably necessary or incidental to such operations, and to
exercise such other rights, including the right of ingress and egress, as may be reasonable
necessary or incidental thereto,as reserved in the deed from Milton G.Cooper and Son,inc.,
a Corporation, in the Deed Recorded March 22, 1945, in Book 2237, page 469 of Official
Records, Document No.11685.
Parcel 3; APN 481-040-11
All that portion of the south three-fourths of the east half of Section 17,Township 14 South,
Range 21 East,Mount Diablo Base and Meridian, in the City of Fresno,County of Fresno,
State of California, according to the official plat thereof, lying southeasterly of Fancher
Creek and Washington Canal, as said Creek and Canal now exist.
Except therefrom the south 2319 feet thereof.
Also excepting therefrom that portion described as:
.Beginning at the east quarter comer of said Section 17;thence south along the east boundary
of the said southeast quarter of Section 17,a distance of 357 feet;thence north 89°38'west,a
distance of 36.94 feet;thence north 01'06'30"east,a distance of 357.07 feet;thence easterly
along the north boundary of said southeast quarter, a distance of 30 feet to the point of
beginning, as conveyed to the County of Fresno by Deed Recorded June 30, 1970 as
Document No.44439 in Book 5798 Page 147 of Official Records,Fresno County Records.
WHEREAS,DISTRICT owns an easement and right-of-way over and through said
real property for its use, operation, and maintenance of an open irrigation canal known as the
FANCHER CREEK Canal No.6 and
WHEREAS,FIRST PARTY desires to relocate said canal within an easement and
right-of-way recorded on/- 1^as Document Number 2O0 5009111 . Official
Records of Fresno County, and DISTRICT is willing to consent to the relocation of said canal
subject to the conditions herein specified.
FID No:2004-D006-31320-03
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NOW,THEREFORE, it is agreed as follows:
I
FIRST PARTY agrees at its expense to relocate,concrete line,construct and install
with and along the said easement and right-of-way,herein described,an irrigation canal with inlets,
outlets and such connections and other structures as may be specified by the engineer of DISTRICT.
Said canal,structures and other appurtenances shall be laid,constructed,installed,and backfilled in
accordance with plans and specifications approved by DISTRICT.
lI
FIRST PARTY agrees to commence the relocation of said canal and appurtenant
structures within a reasonable time after the execution of this Agreement, and to complete the
relocation and construction thereof not later than FEBRUARY 13,2005 or as otherwise agreed by
the parties. FIRST PARTY agrees that the relocation and construction of said canal and structures
shall not interfere with the flow or distribution of water through DISTRICT's canal as required by
DISTRICT.
III
FIRST PARTY agrees not to damage, destroy, alter, disrupt, discard, remove or
connect to any existing facilities owned by DISTRICT, and that no work on the relocation of the
irrigation canal shall begin without the written permission of DISTRICT.
IV
FIRST PARTY and DISTRICT agree and acknowledge that the relocation and
construction of said canal shall not be during the normal irrigation season of DISTRICT unless
otherwise agreed by the parties.
V
FIRST PARTY agrees within thirty(30)days after the completion of the work and
acceptance by DISTRICT, to pay the entire cost of relocating and constructing and lining of said
canal,pipeline,inlets,outlets,and other structures appurtenant thereto,including the cost of all labor,
materials,equipment,installation,trenching,backfilling,leveling and testing and to finalize payment
to all contractors. In the event FIRST PARTY neglects, fails, or refuses to pay the entire cost
thereof,and complete said work in accordance herewith,DISTRICT may,but shall not be required to
pay such cost and complete such work and FIRST PARTY does hereby agree to repay to DISTRICT
any amounts so expended with interest thereon at the rate of ten percent(10%)per annum.
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VI
FIRST PARTY agrees to keep and maintain said relocated canal, pipeline, inlets,
outlets,and other structures appurtenant thereto,in good operating condition and repair for a period
of one(1)year after the completion of construction and the acceptance thereof by DISTRICT,and to
pay all costs of such repairs and maintenance and of any replacement of any part thereof required to
maintain said canal, pipeline and other structures appurtenant thereto in good operating condition.
FIRST PARTY agrees that said acceptance must be evidenced in writing by a dated letter from
DISTRICT. In the event FIRST PARTY fails,neglects,or refuses to repair,maintain or replace any
part of said pipelines or structures during said period of one(1)year,DISTRICT shall have the right,
but shall not be required,to make any such repairs or replacements and FIRST PARTY does hereby
agree to repay to DISTRICT the cost of any such repairs or replacement with interest at the rate of
ten percent(10%)per annum.
VII
FIRST PARTY agrees that the relocated canal, pipes, pipelines, conduits, inlets,
outlets and other structures appurtenant thereto,constructed within said easement and right-of-way
deeded herein,shall become and remain the property of DISTRICT,and FIRST PARTY shal I have
no right,title,or interest therein,except as otherwise provided herein.FIRST PARTY further agrees
that said easement and right-of-way deeded herein and said canal,pipes,and any other pipelines and
conduits to be constructed therein, by or for DISTRICT and the manner, method and time of
conducting and discharging water through said canal, pipeline, pipelines, or conduits shall be
maintained by DISTRICT at DISTRICT'S expense and in the sole and absolute control of
DISTRICT,and the nature and extent of said easement and right-of-way shall not be diminished or
restricted by the relocation of said canal by FIRST PARTY. FIRST PARTY shall maintain the
surface of said land and keep it in a safe condition for the use of DISTRICT and others.
VII
FIRST PARTY agrees prior to commencement of any work contemplated herein,to
furnish DISTRICT with a surety bond in the amount of SEVEN HUNDRED ONE THOUSAND
SEVEN HUNDRED TWENTY SIX AND 00/100 DOLLARS ($701,726.00) guaranteeing the
performance of this Agreement by FIRST PARTY and the payment of all amounts herein agreed to
be paid by FIRST PARTY. DISTRICT shall have the right to request from FIRST PARTY,FIRST
PARTY's contractor cost of laying, constructing, and installing said pipeline, inlets, outlets, and
other structures. If said contractor's cost is greater than FIRST PARTY's surety bond,DISTRICT
shall have the right to request an additional bond from FIRST PARTY,at FIRST PARTY's expense,
to guarantee performance by FIRST PARTY's contractor. Said bond may be reduced to
ONE HUNDRED FIVE THOUSAND TWO HUNDRED FIFTY EIGHT AND 90/100 DOLLARS
($105,258.90)after the completion and acceptance of said work of construction,and all other condi-
tions, terms, undertakings of this Agreement. This reduced amount shall be for guaranteeing the
maintenance and repair of said pipeline and appurtenant structures for a period of one year from the
date of said acceptance. The expense of bonds shall be borne by FIRST PARTY. All such bonds
shall be executed by FIRST PARTY and a corporate bonding company licensed to transact such
FID No: 2004-D006-J1320-03
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business in the State of California and acceptable to DISTRICT. Evidence of authority of an
attorney-in-fact acting for the corporate surety must be provided in the form of a certificate as to his
power of attorney and to effect on the date of the bonds. The form of the bonds or any alternative
security offered by FIRST PARTY shall be subject to the approval of the DISTRICT.
Ix
FIRST PARTY agrees to indemnify and save DISTRICT free and harmless of and
from any liability,loss,cost,damage,attorneys'fees or expense arising out of any claim of personal
injury or property damage suffered by any person, or the death of any person, which arises as the
result of any negligence on the part of FIRST PARTY, incurred in the performance of this
Agreement,commencing upon the execution of this Agreement and continuing without interruption
for a period of one year after acceptance of said pipeline by DISTRICT.
X
FIRST PARTY agrees, at its own expense, to procure a Policy of Title Insurance
issued to DISTRICT with liability limited to SEVEN HUNDRED ONE THOUSAND SEVEN
HUNDRED TWENTY SIX AND 00/100 DOLLARS ($701,726.00)showing title to the easement
and right-of-way herein granted to DISTRICT to be free and clear of encumbrances,which would in
any way interfere with DISTRICT's use of said easement and right-of-way. FIRST PARTY shall
furnish DISTRICT with said Policy after the completion and acceptance of said work.
XI
FIRST PARTY agrees to pay to DISTRICT,payment to accompany this Agreement,
the principle sum of EIGHT THOUSAND FOUR HUNDRED EIGHTY AND NO/100 DOLLARS
($8,480.00) to cover the cost of the preparation of agreements and plan review of said canal
relocation project. FIRST PARTY further agrees to pay those costs for preparation of agreements
and plan review that exceed the amount of EIGHT THOUSAND FOUR HUNDRED AND NO/100
DOLLARS ($8,480.00) to DISTRICT as determined by DISTRICT. Said sum shall be paid to
DISTRICT upon execution of this Agreement and prior to the commencement of said work FIRST
PARTY agrees and acknowledges that this fee is non-refundable and non-transferable.
XII
Upon fiili performance of this Agreement by FIRST PARTY and the acceptance of said pipeline and
structures by DISTRICT, DISTRICT agrees to quitclaim that portion of its present FANCHER
CREEK Canal right-of-way which will be replaced by said canal easement and right-of-way.
This Agreement shall apply to and be binding upon the heirs, executors,
administrators,successors,and assigns of the respective parties hereto.
FID No:2004-DO06-J1320-03
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IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the
day and year first above mentioned.
McMILLIN SUNNYSIDE RANCH,LLC,
A Delaware Limited Liability Company
By: McMILLIN MANAGEMENT SERVICES, L.P.,
A California Limited Partnership, as Manager
By: CORKY McMILLIN CONSTRUCTION
SERVICES, INC.,
A California Corporation, as General Partner
BY: q2 "I q & ,
J se A. a Executive Vice President
B
m V. Robinson, Vice President
"FIRST PARTY"
FRESNO IRRIGATION DISTRICT
A Public Corporation
BY: \ A 0— _
JATB C. ANDRESEN,President
ATTEST:
GARY fjERRATO, Secretary
"DISTRICT'
FID No:2004-D006-31320-03
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* * * * * * * * * * * * * * *
STATE OF CALIFORNIA)
ss.
COUNTY OF TULARE )
On December 15, 2004, before me, the undersigned, a notary public for the state,
personally appeared JOSEPH A. LEAL and JIM W. ROBINSON personally known to
me (or 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); or the entity behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal � G
y'
.� EON
1454944
.�.'PUBLIC-WFORMIA
TULARE COUNTY �+
My Corton.Eon Dee.26.£009
NOT SIGN URE SEAL
.D. STURGEON
COMM. 1464944
WTMY RAM-CAt,IiD"
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
�5ry D ss.
County of l
On 267 051 before me,
Date Name and Tule of 011eer(e. Jane Doe.Very Pubicl
personallyappeared jAxwh �' � �,dl •-Se�i�ic' ,
Names)of Signer(s)
E-15'ersonally known to me
O proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
SEUN►ADAM to the within instrument and acknowledged to me that
r.0 C_4n_Vfib*M#14b8OU he/she/they executed the same in his/her/their
weary P,da-CdHOnro authorized capacity(ies), and that by his/her/their
IKt M Caedy signature(s) on the instrument the person(s), or the
eiNCOM• DOC 23.2W? entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand anil official seal.
Plow Notary Seal Above
Signature of Notary PubW
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached ocumen
Title or Type of Document: /A � �/aCA&Z 61( C�aA1x-/a01 �Lc., FCD
Document Date: Number of Pages: Co
Signer(s) Other Than Named Above: D)V45,
Capacity(les) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s):
❑ Partner—❑Limited ❑ General ❑ Partner—❑ Limited O General
❑ Attorney in Fact Top of thumb here ❑ Attorney in Fact
Top of t► here
here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator O Guardian or Conservator
❑ Other. ❑ Other.
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association•9350 De Sow Ave.,P.O.Box 2402•Chatsworth,CA 91313.2402 hem No.9907 Reorder.Cal Toll-Free 1-BOD-a7 27