HomeMy WebLinkAboutFresno Irrigation District - Common Use of Easements Teague School No 6 - 20140 4 I ø3 I 2øt 4,?ø1 400g7 063
Recording Requested By
And When Recorded MailTo:
Fresno Irrigation District
2907 South Maple
Fresno, CA 93725
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The undenigned granto(s) declare(s) :
DOCUMENTARY TRANSFER TAX IS $ O
LOCATION: SÆ Shaw and Polk avenues
APN: 510-030-13
CANAL: Teague School No. 46
AGREEMENT FOR COMMON USE OF EASEMENTS
This Agreement is made effective as of March l8 ,2014, by and between (i) the Fresno
Inigation District, a California inigation 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 "Teague School
No. 46" 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 Agreement for Substitution and Relocation of Pipeline Owned by Fresno Inigation
District dated January 19,2012, recorded February 8,2012, as Document No. 2012-0019143 (the
"District Easement"), Such real property is adjacent to Herndon Avenue.
B. City shall acquire easement rights in cert¿in lands in the same area for its
construction, maintenance, and operation of street and landscaping improvements in connection
with Tract Map 5599. A portion of City's right-of-way will overlap the District Easement, such
overlapping portion is hereby designated the "Area of Common fJse," 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. A¡ea 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
ruueasonably interfere with District's use of its own facilities or the Dístrict Easement. City's
use of the Areaof 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
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 soruce of danger to or
interference with the present or futrue 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 "Plans and Specifications for the Construction of Street Improvements
on North Polk Avenue," dated August 8, 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 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 lor the Improvements,
(d) All of the Improvements constructed or installed pursuant to this
Agreement shall be the property of City, and all appuftenances 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 hcrein 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, modify, or terminate the District Easement in the Area of Common Use. Both District and
City shall use the Area of Cornmon Use in such a manner as not to urueasonably 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 ftom 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 inte¡ference 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
A¡ea of Common Use.
(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.
(i) 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
A¡ea of Common Use, 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 indemnify District, its directors, offrcers, employees o¡ 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 fuea 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 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. Neither party shall permit installation
of facilities by others in the Area of Common Use without the witten 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 Area 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 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.
(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, Fruther 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 fi.uther 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
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 party 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 counteqpart shall be deemed to be an original instrument, all of which together
shall constitute one and the same instrument.
7. Bindins 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.
L lnterpretation. It is agreed and acknowledged by the parties that this Agreement
has been anived 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 party
to this Agreement.
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 sewice, 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 given by first
class mail, registered or certified, postage-prepaid, and properly addressed as follows:
To District: Fresno Inigation District
2907 South Mapl
Fresno, CA93725-2218
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
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date frrst above written.
"District""City"
The City of Fresno, a municipal corporation
Public Works Departnent
ATTEST:
Yvonne Spence, CMC
City Clerk
APPROVED AS TO
Douglas Sloan, City
FORM:
Attorney
The Fresno Inigation District, a California
inigation district
By
CALIFORNIA ALL.PURPO SE ACIO{OWLEDGMENT
State of California
County of Fresno
On March 18,2014 before me,Laurie Kiser, Notary Public
Date
personally appeared
Nme qnd Titlc of Officer (e.g , "Janc Doe, Notary Public")
Gary R. Serato
Nme(s) ofSigne(s)
who proved tome onthe basisofsatisfactory evidence
to be the person(r) whose name@) is/4.É subscribed to the
within instrument and acknowledged to me that
helgtftltbéy executed the same inhislÉrltþu authorized
capacity(þ), and that by hisllfrlth/u signatureþ) on the
instrument the personfi), or the entity upon behalf of
which the person(g) acted, executed the instrument.
I certify under PENALTY OF PERruRY under the laws
of the Slate of California that the forgoing paragraph is
true and correct.
Placc Notary Seal Above
OPTIONAL
Though the informalion below is not required by law, il may prove valuable to persons relying on lhe documen!
and could prevenlfradulenl removal and rcatlachmenr ofthisform lo anolher documenl
Description of Attached Document
Title or Type of Document Agreement for Common Use of Easements
Document Date: March 18,2074 Number of Pages: 7
Signer(s) Other Than Named Above: Ryan Jacobsen
Capacity(ies) Claimed
Signer's Name:
by Signer(s)
[- Individual
Signer's Name:
[- Individual
f- Corporate Officer - Title(s):
f- Partner - f- Limited l--
f- Attorney in Fact
f-- Trustee
[- Guardian or Conservator
f- Other:
[- Corporate Officer - Title(s):
f Partner - [- Lim¡ted [-
f- Attorney in Fact
[- Trustee
[- Guardian or Conservator
f- Other:
General General
LAUßIE KISER
Commlt¡lon # 2053415
t{ot3ry Publlc - C¡lifornia
Flrsno County
y hand and official seal.
S igner Is Representing:Signer Is Representing:
CALIF'ORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
On March 18,2014 before me,Laurie Kiser, Notary Public
personally appeared
Nme md Title of Officcr (e.g,, "Jae Doe, Notary Public")
Ryan Jacobsen
Name(s) ofSigne(s)
who proved tome onthe basisofsatisfactory evidence
to be the person(¡) whose name(d) is/y'e subscribed to the
within instrument and acknowledged to me that
he/$fe/t/ey executed the same in hislh/rltftir authorized
c,apacity(ir+), and that by hislhlr/tÞêir signature@ on the
instrument the person(/), or the entity upon behalf of
which the person(/) acted, executed the instrument.
I certif under PENALTY OF PERIIIRY under the laws
of the State of California that the forgoing paragraph is
true and correct.
Place Notary Seal Above
OPTIONAL
Though the information below is not required by lãw, ¡l may prove valuable lo persons relying on lhe doutmenl
and could preventfradulenl removal and reatlochmenl ojthisform lo anolher documenl
Description of Attached Document
Title or Type of Document Agreement for Common Use of Easements
Document Date: March 18, 2014 Number of Pages: 7
Signer(s) Other Than Named Above: Gary R. Serrato
Capacity(ies) Claimed by Signer(s)
Signer's Name:
f- Individual
Signer's Name;
f- tndividual
f- Corporate Officer - Title(s):
f- Partner - l- Limited a
f- Attorney in Fact
f- Trustee
[- Guardian or Conservator
f- other:
[- Corporate Officer - Title(s):
l- Partner - f- Limited f
l- Attorney in Fact
l-- T¡ustee
[- Guardian or Conservator
f- Other:
General General
c0mmhtlon t 2053415
iloury Publlc - c¡lllornl¡
Fr6no County
hand and official seal.
Signer Is Representing:Signer ls Representing;
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On March 21,2014 before me, Sherrie L. Badertscher, Doqgty Citv Clerk, personally appeared,
Scott Mozier, P.E., Director, Public Works Department , who 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) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and conect.
WITNESS my hand and official seal
WONNE SPENCE, CMC
City Clerk, City of Fresno
EXHIBIT,,A,,
*FRESNO IRRIGAÏON DISTRICT PIPELINE FÁSEMENT RECORDED
FEBRUARY 08, 2012 AS DOC. NO. 20t2-0019145, F.C.R.
NOTE:
CROSS I-IATCHED PORTON
INDICATES ARFA OF
COMMON USE
ARFÂ SI.TARED BENTEEN
ND ASEMENT A¡¡D
CÍI'Y OF FRESNO
PEDES'IRIAN EASEMENT = 172 S.F.
THE WESr UNE OF THE NE 1/4
oF sEc. 15. 13-19
lrl5
F{
THE NORTH LINE OF THE SOUTHWEST
OUARÍER OF THE NORTHFÁST
QUAR'IER OF SECTON 15
TRACT MAP NO. 5599
EASEMENI PERI rnccr IJAP No., ss99
v
-to
a.REMAINDER
SCALE: 1':60'
.IHE SOUTH UNE OF THE NORTH 258.00 FEET
oF THE SW 1/4 OF THE NE 1/+ OF SEC. 15, 15-19
ÈqoI
PREPARED BY:
GARY G. GIANNETTA
1 1 19 ,S' STREET
FRESNO, C,A 95721
559,264.5590
RECORD OWNER
ABN II{IESruENTS [.LC.
5447 N. CtEo A!8.
FRESNO, CA 93722
(55e) 276-1010
OF FRESNO
NORTH GETTYSBURG AVENUE
FRESNO IRRIGATION DISTRICT AND
AREA OF COMMON
CITY
USE