HomeMy WebLinkAboutFresno Irrigation District - Common Use of Easements Bullard No 124 - 2014.þ t4 - LLrq
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Recording Requested By
And When Recorded Mail To:
Fresno Irrigation District
2907 South Maple
Fresno, CA 93725
lø I 28 I 2øt4, 20 1 40 1 2249 I
The undersigned grantor(s) declare(s):
DOCUMENTARY TRANSFER TAX IS S O
LOCATION: SÆ HERNDON & BRAWLEY AVENLIES
APN: 406-4ll-54 &, -47
CANAL: BULLARD NO. 124
AGREEMENT FOR COMMON USE OF EASEMENTS
This Agreement is made effective as (
,zLI4,by and between (i) the Fresno
Irrigation District, a California irrigation district ("District") and (ii) the City of Fresno, a
municipal corporation ("City"), with respect to the following facts:
A. District owns and operates an underground pipeline as part of its "Bullard Canal"
facilities, located on the real property more particularly described in Exhibit A hereto, pursuant
to certain easement rights, including those exclusive easement rights described in that certain
Grant of Easement dated November 22,2000, recorded November 27,2000,as Document No.
2000-0144152 (the "District Easement"). Such real property is adjacent to Herndon Avenue.
B. City has acquired easement rights in certain lands in the same area for its
construction, maintenance, and operation of street and landscaping improvements under that
certain Deed of Easement dated December l3,2\l2,recorded March 29,2013, as Document No.
2013-0046247. Aportion of City's right-of-way will overlap the District Easement, such
overlapping portion is hereby designated the "Area of Common IJse," as depicted in the diagram
attached hereto as Exhibit A.
C. District and City wish to establish certain conditions under which the Area of
Common Use shall be used by the parties.
NOW THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the parties agree as follows:
1. Area of Common Use.
(a) District hereby consents to the use by City of the Area of Common Use for
purposes of constructing, maintaining and operating improvements ("Improvements") that do not
unreasonably interfere with District's use of its own facilities or the District Easement. City's
use of the Area of Common Use shall be subject to District Easement and to the terms and
conditions herein contained. District does not by this Agreement subordinate any rights it may
2013-D124-J1690-02
have in the Area of Common Use to any use which City shall make of the land. City
acknowledges that by this Agreement, 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.
(b) 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 constructed facilities shall be in conformance with the
construction plans titled "Herndon Avenue Widening from Brawley to Valentine," dated March
18,2013, as prepared by the City and approved by District.
(c) 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 responsibihty 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.
(d) All of the Improvements constructed or installed pursuant to this
Agreement shall be the property of City, and all appurtenances and facilities installed by District
or existing in the Area of Common Use which are 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 property.
(e) Except as expressly set forth herein, this Agreement shall not in any way
alter, modifu, or terminate the District Easement in the Area of Common Use. Both District and
City shall use the Area of Common Use in such a maûrer 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 construction 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.
(Ð City shall be responsible to pay, and shall reimburse District upon
demand, 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. District
shall provide reasonable advanced written notice of the necessity of such work prior to
commencement.
(g) 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.
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(h) 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.
(Ð 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 lJse, except for any such claims arising out of the willful misconduct or sole
negligence or those of District or its directors, officers, employees or authorized volunteers, or
those claims which violate the City's sovereign immunities. City agrees to defend, hold
harmless, and indemnifu District, its directors, offlcers, employees or authorized volunteers
against any and all such injuries, damages, and claims. This indemnification agreement shall not
be restricted to any insurance proceeds.
û) 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 A¡ea of Common Use,
and shall furnish the other party with plans and specifications describing the work to be done
beforehand. The reviewing party shall have the right to specifiz 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. Neither party shall permit installation
of facilities by others in the Area of Common Use without the written consent of the other party.
Each party agrees to repair any damage to the other party's facilities caused by work directed or
performed by it within the A¡ea of Common Use, except that where City's facilities within the
Area of Common Use must necessarily be damaged, destroyed or removed by District to
accommodate repair, maintenance, modification or replacement of District's facilities, District
shall have no obligation to restore City's affected facilities. In the event of an emergency, no
such notice shall be required and either pafi 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 properfy, or to protect the public health and safety.
(k) Violation of any term of this Agreement shall be cause of termination of
the Agreement, and in such an event, the aggrieved party shall have all remedies available at law
or equity, including the right to enforce District's right to the unimpeded use of the Area of
Common Use. No termination of this Agreement shall release the other party from liability
hereunder, whether of indemnity or otherwise.
2. Further Assurances. From time to time and at any time after the execution and
delivery hereof, each of the parties, at its own expense, shall execute, acknowledge and deliver
any further instruments, documents and other assurances reasonably requested by the other party,
and shall take any other action consistent with the terms of this Agreement that may reasonably
be requested by the other party, to evidence or carry out the intent of this Agreement.
3. Time and Computation of Time. Time is of the essence of this Agreement and
each and all of its provisions. The parties agree that the time for performance of any action
2013-D124-J1690-02
permitted or required under this Agreement shall be computed as if such action were "an act
provided by law" within the meaning of California Civil Code $10, which provides: "The time in
which any act provided by law to be done is computed by excluding the first day and including
the last, unless the last day is a holiday, and then it is also excluded."
4. Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and understandings of the parties. No
supplement, modification, or amendment of this Agreement shall be binding unless executed in
writing by all of the parties hereto.
5. Waiver. Waiver of any breach of this Agreement by any parly hereto shall not
constitute a continuing waiver or a waiver of any breach of the same or another provision of this
Agreement.
6. Counterparts. This Agreement may be executed in any number of counterparts
and each such counterpart shall be deemed to be an original instrument, all of which together
shall constitute one and the same instrument.
7. Binding Effect. This Agreement shall "run with the land" and be binding upon
and inure to the benefit of the heirs, executors, administrators, assigns, and successors of the
parties hereto.
8. Intemretation. It is agreed and acknowledged by the parties that this Agreement
has been arrived at through negotiation, and that each party has had a full and fair opportunity to
revise the terms of this Agreement. Consequently, the normal rule of construction that any
ambiguities are to be resolved against the drafting party shall not apply in construing or
interpreting this Agreement.
9. Professionals' Fees. Should any action or proceeding be commenced between the
parties hereto concerning this Agreement, or the rights and duties of any party in relation thereto,
the party prevailing in such action or proceeding shall be entitled, in addition to such other relief
as may be granted, to recover from the losing party a reasonable sum for its attorneys',
paralegals', accountants', and other professional fees and costs incurred in connection with such
action or proceeding.
10. Parties in Interest. Nothing in this Agreement, whether expressed or implied, is
intended to confer any rights or remedies on any persons other than the parties hereto and their
respective successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any party to this Agreement, nor shall
any provision give any third person any right ofsubrogation or action over and against any pafi
to this Agreement.
2013-D124-J1690-02
I l. Survival. Each of the terms, provisions, representations, warranties, and
covenants of the parties shall be continuous and shall survive the consummation of the
transactions contemplated in this Agreement.
12. Notices. All notices and other communications required under this Agreement
shall be in writing and shall be deemed to have been duly given (i) on the date of service, if
served personally on the person to whom notice is to be given, (ii) on the date of service if sent
by telecopier, provided the original is concurrently sent by first class mail, and provided that
notices received by telecopier after 5:00 p.m. shall be deemed given on the next business day,
(iii) on the next business day after deposit with a recognized overnight delivery service, or (iv) or
on the third (3rd) day after mailing, if mailed to the party to whom notice is to be givenby first
class mail, registered or certified, postage-prepaid, and properly addressed as follows:
To District: Fresno Irrigation District
2907 South Maple
Fresno, Cy'^93725-2218
Attn: General Manager
To City: City of Fresno
Attn: Director of Public Works
2600 Fresno Street
Fresno, CA9372l
A party may change its address for notices by providing notice to the other parties as
provided above.
[remainder of page intentionally left blankJ
2013-D124-J1690-O2
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date first above written.
"District""city"
The Fresno Irrigation District, a California The City of Fresno, a municipal corporation
irrigation district
R
By
Gary R.
P*bLi¿
Robør+ETSøN
City Clerk
APPROVED AS FORM:
Douglas Sloan, City Attorney
2013-D124-J1690-02
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
October 21,2014 before me,Laurie Kiser, Notary Public
personally appeared
Name a¡d Title ofOfficer (e g, "Jane Doe, Notay Public")
Gary R. Serrato
Nme(s) of Signer(s)
who proved to me onthe basis of satisfactory evidence
to be the person(s) whose name(+) is subscribed to the
within instrument and acknowledged to me that
instrument the person(+), or the entity upon behalf of
which the person(+) acted, executed the instrument.
I certifo under PENALTY OF PERJURY under the laws
ofthe State of California that the forgoing paragraph is
true and correct.
Place Notary Seal Above
OPTIONAL
Though the information below ís not required by latt, il may prove valuable to persons relying on the document
and could prevent fradulent removal and reattachment of this þrm to another document
Description of Attached I)ocument
Title or Type of Document Agreement for Common Use of Easements
Document Date: October 21,2014 Number of Pages: 8
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
f tndividual
Signer's Name:
[- Individual
l- Corporate Officer - Title(s):
l-- Partner - [- Limited f
l-- Attomey in Fact
f- Trustee
f- Guardian or Conservator
l- other:
General
f- Corporate Officer - Title(s):
l- Panner - l- timited f
f- Attorney in Fact
l- Trustee
l- Guardian or Conservator
f- other:
General
Commla¡lon # 2053415
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trcano County
hand and official seal.
Signer Is Representing:Signer Is Representing:
CALIFORI\IA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
On October 21,2014 before me,Laurie Kiser, Notary Public
personally appeared
Name and Title ofOfñcer (e g , "Jane Doe, Notary Public")
Ryan Jacobsen
Name(s) ofSigner(s)
who proved tome onthe basisofsatisfactory evidence
to be the person(+) whose name(e) is subscribed to the
within instrument and acknowledged to me that
instrument the person(e), or the entity upon behalf of
which the person(r) acted, executed the instrument.
I certifo under PENALTY OF PERruRY under the laws
ofthe State of California that the forgoing paragraph is
true and correct.
Place Notary Seal Above
OPTIOI{AL
Though the ínformalíon below is not required by law, it may prove valuable to persons relyíng on the document
and could prevent fradulent removol and reatlachment of this form to another document
Description of Attached Document
Title or Type of Document Agreement for Common Use of Easements
Document Date: Octob er 2l , 2014 Number of Pages: 8
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
I-- Individual
Signer's Name:
l- Individual
l-- Corporate Officer - Title(s):
l- Partner - J- Limited f
l- Auomey in Fact
J-- Trustee
f- Guardian or Conservator
l-- Other:
General
l- Corporate Officer - Title(s):
l- Partner - f- Limited T
[- Attorney in Fact
l- Trustee
[- Guardian or Conseryator
l- other:
General
comml¡don t 2053415
tlot¡ry Puþllc - C¡llfornia
Fræno County
Signer Is Representing:Signer Is Representing:
CALIFORNIA ALL-PURPO S E
CERTIFICATE OF ACKNOWLEDGME,NT
State of California
County of 6w.ø
before me,
personally appeared
I certifu under PENALTY oF PERJURY under the laws of the State of Califomia that rhe foregoing paragraph
is true and correct.
NorAnY FuBLto - cnuroRrun !
coMMtô8roN # 1934S30 eFRESNocouNw i
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My Comm. Exp. May gl, 2Of5
(Notåry Seål)
(Here insert name
WITNESS my hand and official seal.
ADDITIONAL OPTIONAL INFORMATIO N
DESCRIPTTON OF THE ATTACHED DOCTII\4ENT
(Title or descriphon of aÍåched dæument)
(Title or dacription of atlached docment continued¡
Number of Pages _ Document Date
(Additional infomtion)
INSTRUCTIONS FOR COMPLETû{G TT{IS FORM
hæ the dæument
wledpent
ly appeued which
r The nota¡y public must print bjs or her name as it appers within his or hscommission followed by a cornma and then you title (notary pubtic).. Print the nam{s) of documsnt signe(s) who pesonally appeår at the time of
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notarization
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the c¡rr€ct forms. Failrre to correctly indicate this
n of document rcording.
CAPACITY CLAIMED BY TTIE SIGNER
tr krdividual (s)
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(Titte)
¡ Partne(s)
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! Trustee(s)
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2008 Ve¡sion CAPA vl2.10.07 800-873-9865 www.NotaryClasses com
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O = PREVIOUSLY DEDICATED AS AN EASEMENT FOR PUBLIC
STREET PURPOSES BYA DEEO OF EASEMENT RECORDED
JUNE 2, 1S83 AS DOCUMENT NO.830118407, O.R.F.C.
@ = PREVIOUSLY DEDICATED AS AN EASEMENT FOR PUBLIC
STREET PURPOSES BYA OEED OF EASEMENT RECORDEO
ocToBER 11, 't990 AS DOCUMENT NO.90123332, O.R.F.C.
@ = PREVIOUSLY DEDICATED AS AN EASEMENT FOR PUBLIC
STREET PURPOSES BY PARCEL MAP NO.2OO'1{,2 RECORDED
IN BOOK 61 OF PARCEL MAPS AT PAGE 61, F,C.R.
@ = PREVIOUSLY DEDICATED AS AN EASEMENT FOR PUBLIC
SÏREET PURPOSES BY A DEED OF EASEMENT RECORDED
MARCH 29, 2013 AS DOCUMENT NO.201340,4,6247, O.R.F.C.
@ = PREVIOUSLY OEDICATED AS AN EASEMENT FOR PUBLIC
PEDESTRIAN WALI(WAY & BICYCLE PATH PURPOSES BY
A DEED OF EASEMENT RECORDED MARCH 29,2013 AS
DOCUMENT NO. 20 I 3{046247, O.R.F.C.
@ = PREVIOUSLY OEDICATED TO THE FRESNO IRRIGATION
DISTRICT AS AN EASEMENT FOR IRRIGATION PIPELINE
PURPOSES BY A GRANT OF EASEMENT RECORDED
NOVEMBER 27, 2000 AS DOCUMENT NO. 2000{144152, O.R.F.C.
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REF& REY.
PWF 11493
PI-AT 1348
CITY OF FRESNO
DEPARÏM EA/T OF P U BU C WORKS
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