HomeMy WebLinkAboutFresno Irrigation District - Common Use of Easements Big Dry Creek No 150 - 2012DOCllnre"taTJ'Transfer Tax -SO.00
For the Renefit 0/:
F Rt."SNO IRRIGATION DISTRICT
1 907 SOUTH M APLE A VENUE
FRt."SNO CA 93 715-1118
Record;"K Information
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AG REEMENT FO R C OMMON USE OF EASEMENTS
HW Y 168 AND C HESTNUT AVENUE
N /A
BIG DRY C REEK N O .I SO
THIS AGR EEMENT,made and entered into this %day o f /J1/Li A...-,
2012,by and between th e FR ESNO IRRIGATION DISTRICT, a publ ic co~e
Co unty of Fresno ,State of Ca lifornia,hereinafter referred to as "DIST RICT" and CITY OF
F RESNO,hereinafter refe rred to as "C ITY", with reference to the following Recitations.
R E C IT A T I O N S:
A.DISTRICT is the own er of an open channel case ment and r ight-of-way ,
record ed on March 13, 2003,as Document N o.2003-0058446,Official Records of Fresno
C ounty, for its use in conn ection with the co nstruction, maintenance ,op eration and use of an
irrigation ca nal a nd incidental a ppurtenances ,known as the BIG DRY C REEK NO .I SO .
B.CITY has or will acquire a right-of-way interest in certain lands in the
same area as the DIST RICT's ease ment and right of way, and C ITY intend s to use thi s new
r ight-of-way interest for the purpose of const ructing ,mai ntaining and operati ng a 18-inch
diam eter water main and other pertinent structures.
C. A portion of C IT Y's right-of-wa y wi ll overlap DISTRICT's open channe l
ease ment or right-of-way,which o verlapping portion is more specifically describe as that area
shown on the diagram attached hereto as Exhibit "A" a nd "B",such ove rlapping area being
hereby designated as t he "Area of Common Use".
D. DISTRICT and CITY wish to establish certain conditions under which the
Area of Common Usc shall be used by the Parties.
AGREEMENT
NOW, THEREFORE, it is agreed as follows:
DISTRICT hereby consents to the usc by CITY of the Area of Common Usc for
purposes of constructing, maintaining and operating the Improvements.CITY's usc of the Area
of Common Use shall be subject to DISTRICT's right to fully use the Area of Common Usc for
all of DISTRICT's purposes, and to the terms and conditions herein contained. DISTRICT docs
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 DISTRICT's consent to
CITY's usc of the Area of Common Usc, DISTRICT 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 DISTRICT'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 DISTRICT. CITY is specifically required to
coordinate the construction of the Improvements so that it does not interfere with DISTRICT's
water delivery and maintenance schedules.
The right of the DISTRICT to approve such construction details is solely for the
benefit of the DISTRICT and is not intended to assign to DISTRICT any responsibility for the
safe and proper construction of the Improvements, such responsibility and liability being entirely
assigned to CITY. Approval by DISTRICT 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 arc related to DISTRICT's facilities shall be the property of DISTRICT.
Except as herein otherwise provided, neither DISTRICT nor CITY shall have any right, title, or
control over the other's said 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 DISTRICT's casement in the Area of Common Use. Both DISTRICT and
Big Dry Creek -ChestnutWater Main·COMMON USE AGREEMENT,doc 2
CITY shall use the Area of Common Use in such a manner as not to unreasonably interfere with
the rights of one another and nothing herein shall be construed as a release or waiver of any
claim for compensation or damages which DISTRICT or CITY may now have, or may hereafter
acquire, resulting from the construetion or alteration of existing facilities or the construction or
alteration of additional facilities by either DISTRICT 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 DISTRICT upon demand,
but after DISTRICT gives to CITY at least thirty (30) days written notiee (except in the case of
an emergency) and an opportunity for CITY to perform the required work,for any reasonable
cost incurred by DISTRICT for work performed by DISTRICT that is caused by or required by
CITY's construction, maintenance or use of the Improvements.
Except as described above, DISTRICT 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 from any responsibility toward
the other for damage to the other's property located outside of the Area of Common Use.
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 willful misconduct of DISTRICT
or its directors,officers,employees or authorized volunteers. CITY agrees to defend, hold
harmless, and indemnify DISTRICT, its directors,officers,employees or authorized volunteers
against any and all sueh 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 flow of
water in DISTRICT's canal or 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
speeify reasonable conditions on, or changes in, the proposed work and schedule when neeessary
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
Big Dry Creek - Chestnut Water Main - COMMON USE AGREEMENT.doc 3
DISTR ICT to accommodate repair,ma intenanc e,modification o r rep lacement o f DISTRI CT's
facilities,DISTRI CT sha ll have no obli gation to restor e C ITY's affected faci lities.In the e vent
of an emergency, no such no t ice shall be requ ired and eit her Party ma y proceed to do what is
reasonably necessary to prevent seriou s loss or damage a nd to protect the public health and
safety. An e mergency s hall be deem ed to exist if immediate action i s reas onably required to
prevent se r ious loss or dam age to life or prop erty,or to prot ect the p ublic health and sa fety.
V lII
T his A greement shall a pply to a nd bind successors a nd ass igns of the respective
Parties hereto.
IX
Violation of any term o f this Agreem ent shall be cause of termin at ion of th e
Agreement,a nd in such an event ,DISTRICT sha ll have all remedi es avail ab le at law or equity to
enforc e DISTR ICT's right to the unimpeded use of the Area of Common Usc .No lega lly valid
t ermina tion of this Agree ment shall re lease C ITY from liability hereu nder ,whet her of inde mnity
or ot herwise.
IN WITNESS WH EREOF,t he Parties he reto have exec uted th is Agreement as of
the da y a nd year first a bove w ritten.
,President
"C ITY"
C ITY OF F RESNO
A Mun icipal Corporat ion
BY:_?:2.~~~~:::::::__
PATR ICK W IEMILLER,Public
Works Director
APPROV ED A S T O FORM
JAM S C .SANCHEZ,City Attorn ey
BY1::;;i~~"'::::_,-----
Deputy C ity Attorney Li>a-rr
ATTEST:
YVONNE SP ENCE,City C lerk
BY :/lPRM M'.ilfndLJli:W
Dep uty City C lerk </{:l(p /I;).
Big Dry c reek -chestnut Water Main -COMMONUSE AGREEMENT,doc
"DIST RICT"
FRESNO IRRIGATIO N DISTRICT
A P ublic Corpor ation
4
CLERK'S CERTIFICA TlON
S tate of Ca lifornia
Co unty of Fr esno
On Jun e 19,2 012 before m e,Sh errie L. Badertscher,Deputy Cit y C lerk ,personally appeared,
P atrick Wi emiller,Dir ector,Publi c W orks D epartment ,w ho pro ved to me on th e b asis o f
sa tisfactory ev idence ,to be t he person(s)who se n ame(s)is/are s ubscribed to t he w ithin
in strument a nd ack nowledged to me th at he/she/they executed t he sa me in his/her/their
a uthorized ca paci ty(ies),and th at by his/her/their s ignature(s)o n the i nstrument th e pe rson(s),o r
th e entity up on behalf of w hich t he person(s) ac ted,executed th e instrum ent.
I ce rtify un d er PEN ALTY OF P ERJURY under the laws o f the S tate of California that the
foregoing p ara graph is tru e a nd co rrect.
W ITNESS my h and a nd officia l sea l
YVONNE SP ENCE,C MC
C ity C lerk ,Ci ty of Fresno
Apnl14,2010
Jobno.NC09256
EXHIBIT 'A'
A Portion of the Parcels of Land described in the Directors Deed to FlO recorded
in Instrument Number 2003-0058446,Official Records of Fresno County being a
portion of Section 13,Township 13 South,Range 20 East,and Section 18,
Township 13 South,Range 21 East,Mount Diablo Baseand Meridian,Cityof
Fresno,Countyof Fresno,State of California,being more particularly described
as follows:
A 3.66'(44")stripof land lying bothsidesofthe following described centerline:
Commencing at the Northeast corner of said Section 13;thence South 00°19'12"
Westfor a distance of 1442.88'the intersection of the Easterly lineofsaid
Section 13andthe Northwesterly lineof theabove described Lands of FlO;
Thence South 36°39'40"West along said Northwesterly linefora distance of
78.12feet to theTrue Pointof Beginning;
Thence leaving said Northwesterty line South 54°38'11"Eastfora distance of
62.36'to a pointonthe Southeasterly lineof said Landsof FlOand termination of
said centerline description.
Contains 228square feet,moreor less.
BASIS OF BEARINGS:
The Basis of Bearings ofthe above described metes and bounds description is
the Northwesterly lineof said Lands of FID as described in Instrument Number
2003-0058446,Official Records of Fresno County,said Northwesterly line being
South 36°39'40"West.Distances shown hereon aregrid distances.Multiply
distances by 1.00006576 to obtain ground distances.
NOTE:
The sidelines of the above described stripshallbe
lengthened or shortened asthe case maybeto terminat .
in the Northwesterly and Southeasterly lineof said Lands
of FlO.
SeeExhibit'B'attached hereto and made a part hereof.
END OF DESCRIPTION.
Page 1 of1
P:ICADINC09256IMAPILEGALSINC09256EAS-FID.doc
THE BASIS OF BEARINGS:
INSTRUMENT NUMBER 2003-0058449,ORFC.
DISTANCES SHOWN HEREON ARE GRID DISTANCES.
MULTIPLY BY 1.00006576 TO OBTAIN i:3
GROUND DISTANCES.
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Jab No.:NC09256 IN 11/£CITY or Fli'ESNO
Phone:866.526.4214 COUNTY OF FRESNO CALIFORNIA
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Documentary Transfer Tax-SO.00
For tile Benefit of;.
FRESNO IR11IGATION DISTRICT
2907 SOUTH MAPLE A VENUE
FRESNO CA 93725-2218
RecordingInformation
AGREEMENT FOR COMMON USE OF EASEMENTS
LOCATION: HWY168AND CHESTNUTAVENUE
APN: N/A
CANAL: BIGDRYCREEKNO. 150
THIS AGREEMENT,made and enteredintothis l?day of ,
2012, by and between the FRESNO IRRIGATION DISTRICT,a public corporati f in the
County of Fresno, State of California, hereinafter referred to as "DISTRICT" and CITY OF
FRESNO, hereinafterreferredto as "CITY", with referencetothe followingRecitations.
RECITA TrONS:
A. DISTRICT is the owner of an open channel easement and right-of-way,
recorded on March 13, 2003, as Document No.2003-0058446,Official Records of Fresno
County, for its use in connection with the construction,maintenance,operation and use of an
irrigation canal and incidental appnrtenances,known as the BIGDRY CREEK NO. 150.
B.CITY has or will acqnire a right-of-way interest in certain lands in the
same area as the DISTRICT's easement and right of way, and CITY intends to use this new
right-of-way interest for the purpose of constructing,maintaining and operating a 18-inch
diameter water mainandotherpertinent structures.
C. A portion of CITY's right-of-way will overlap DISTRICT's open channel
easement or right-of-way,which overlapping portion is more specifically describe as that area
shown on the diagram attached hereto as Exhibit "A"and "B",such overlapping area being
hereby designatedasthe"Area of CommonUse"..