HomeMy WebLinkAboutFresno Irrigation District - Common Use of Easements Gould Canal No 97 - 2012J)oc lllllelltary Transfer Tax -$0.00
For 'lie /tel/eji'of:
AGREEMENT FOR COMMON USE OF EASEMENTS
F RESNO I RRIGA TlON DISTRICr
2 907 SO UTH MA PLE A VENUE
F Rt."'SNO CA 93725-22 18
R ecording Ill/ orm flfioll
AS HLAN AND C HESTNUT AVENUES
N/A
GOU LD CANA L NO .97
LOCAT ION :
APN:
CAN AL:
T Ill S AGR EEMENT,mad e and e ntered into thi s c!day o f -LJ-J_H-__
2012,by and between the FRESNO IRRI GATION DISTRICT ,a public eo rporati in the
Co unty o f Fres no,State of Ca lifornia,hereinafter referre d t o as "DISTR ICT"a nd C ITY OF
FRESNO, hereinafter referred to as "CITY",w ith reference to the following Recita tions.
R E C IT A T ION S:
A. DIST RICT is the owner of an open cha nnel easement and right-of-way,
reco rded o n Ja nuary 23, 1997,as Docu ment Number 97009618,Officia l Records of Fresno
Co unty, for its usc in connection with the const ruction,main tenance,o peration a nd use of an
irr igation cana l an d incidenta l a ppurtenances ,known as the GOULD CANAL NO. 97 .
B .C ITY has or wi ll ac quire a right-o f-way interest in ce rtain land s in the
same ar ea as t he DISTR ICT's casement a nd ri g ht o f wa y,a nd C ITY i nte nd s to use th is new
right-of-way int erest for the purpose of constructing,maintaining and operating a 18-inc h
d iameter wa ter ma in and oth er pertinent s tructures.
C. A port ion of C ITY's right-of-way will over lap DISTRICT's open c hannel
ease ment or rig ht-of-way ,which ove rlapping portion is more specifically describe as that area
shown o n the diagram attac hed hereto as Ex hibit "A", s uch overlapping area being hereby
desig nated as the "Area of Co mmon Use".
D. DISTRICT and CITY wish to establish certain conditions under which the
Area of Common Use shall be used by the Parties.
AGREEMENT
NOW,THEREFORE,it is agreed as follows:
I
DISTRICT 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 DISTRICT'S right to fully use the Area of Common Use for
all of DISTRICT's purposes, and to the terms and conditions herein contained. DISTRICT does
not by this Agreement subordinate any rights it may have in the Area of Common Usc 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 Use,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.
11
CITY shall, at its own cost and with DISTRICT's prior approval, locate,
construct,and maintain the Improvements in the Area of Common Usc 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 docs 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 Usc which are related to DISTRICT's facilities shall be the property of the DISTRICT.
Except as herein otherwise provided, neither DISTRICT nor Cl'TY 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 easement in the Area of Common Use. Both DISTRICT and
Gould Canal -Chestnut Water Main -COMMON USE AGREEMENT.doc 2
CITY shall use the Area of Common Use in sueh 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 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.
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 notice (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 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 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
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
Gould Canal - Chestnut Water Main - COMMON USE AGREEMENT.doc 3
DI STRICT to accommodate repair, maintenance,modification or replacement of DISTRICT's
facilities,DISTRICT s hall have no obligation to restore CITY's affected facilities .In t he event
of a n emergency, no such notice shall be required a nd either Party may proceed to do what is
reasonably necessary to prevent serious loss or damage and to prot ect the public health a nd
safe ty.An emergency shall be de emed to exis t if immediate action is reasonably required to
prevent se rious loss or d amage to life or property, o r to protect th e publi c health and safety.
VIII
T his Agreement shall ap ply to and bind successors and assig ns of the respective
Parties hereto.
I X
Violation o f a ny term o f this Agreement shall be ca use of termination of the
Agreement, and in such an event, DISTR ICT shall have all remedies a vailable at law or equity to
enforce FID'S ri ght to the unimpeded use o f the Area of Common Use. No lega lly valid
termination o f this Agreem ent shall release C ITY from liability hereunder,whether o f indemnity
or otherwi se.
IN WITNESS WHER EOF,the Part ies hereto hav e exec uted thi s Agreement as of
the day and year first above written .
"C IT Y"
C ITY O F FRESNO
A Mun icipa l Corporation
BY:~G @
PATRICK W IEMILLER,Publ ic
Works Director
APPROVED AS TO FORM
:~EZ'City Attorney
Deputy City Attorney lL ·D-Y
A ITEST :
YVONNE S PEN~;;?ty Clerk
BY :JIr..wu;,&dutxk.u ./
Deputy C ity C lerk Lf-/;).{pl fd-
Go uld Ca nal -Chestnut W at er Main -COMMON USE AG REEMENT .doc
"DISTR ICT"
FRESNO IRRIGATION DISTR ICT
A Public Corporation
BY :z!f ~~~)/\4-JEEF NE ~y,~e n t
4
CLERK'S CER TIFICA TlON
Stat e of Ca lifornia )
C ounty of Fr esno )
On Jun e 19, 2 012 b efore me,Sherri e L. Bad ertscher,Deputy Cit y Cl erk, pe rsonally a ppeared,
Patrick W iemiller, Dir ector,Publi c W orks Department, w ho p roved to m e on th e basis of
sa tisfactory e vidence,to be th e pe rson(s)w hose name(s)is/are s ubscribed to th e w ithin
instrument a nd ack nowledged to me th at he/she/they executed t he sa me in hi s/her/their
authorized ca pacity(ies),a nd th at by his/her/their s ignature(s)o n th e instrument th e perso n(s),o r
the e ntity upon be half of w hich the pe rson(s)ac ted,executed th e instrument.
I certify under PEN AL T Y OF P ERJURY u nder the laws o f the Sta te of California that the
foregoing paragraph is true and co rrect.
W ITNESS my hand a nd official sea l
YV ONNE S PENCE,CMC
C ity C lerk ,City of Fresno
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ASSOCIATES
EXHIBIT "A"
PIPELINE EASEMENT
FOR COMMON USE AGREEMENT
GOULD CANAL, CITY OF FRESNO, CA.
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@6120/2012,2@12@085714
Documentary Transfer Tax-so.00
For tile Benefitof:
FRESNO IRRIGATION DISTRICT
2907 SOUTH MAPLE AVENUE
FRESNO CA 93725-2218
Recording Information
AGREEMENT FOR'COMMON USEOF EASEMENTS
LOCATION: ASHLAN AND CHESTNUT AVENUES
APN: N/A
CANAL: GOULD CANAL NO. 97
THIS AGREEMENT, made and entered into this 1 day of m ,
2012, by and between the FRESNO IRRIGATION DISTRICT, a public corporati in the
County of Fresno, State of California,hereinafter referred to as "DISTRICT"and CITY OF
FRESNO,hereinafter referred to as "CITY",with reference to the following Recitations.
RECITATIONS:
A. DISTRICT is the owner of an open channel easement and right-of-way,
recorded on January 23, 1997, as Document Number 97009618, Official Records of Fresno
County, for its use in connection with the construction,maintenance,operation and use of an
irrigation canal and incidental appurtenances, known as the GOULD CANAL NO. 97.
B. CITY has or will acquire 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 lS-inch
diameter water main and other pertinent 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", such overlapping area being hereby
designated as the "Area of Common Use".