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HomeMy WebLinkAboutFresno Irrigation District - Encroachment Agmt Herndon Canal No 39 and Gould Ext No 151 - 2009REPORT TO THE CITY COUNCIL AGENDA ITEM NO. IL 990911 -MEETING 7//lo July 16, 2009 tri: aZ 7 rm xwae FROM: PATRICK N. WIEMILLER, Director Public Works Department BY: EFREN BANUELOS, Assistant Director Public Words Department, Capital Management Division MARK M. JOHNSON, Prefect Manager it Public Works Department, CapHal Management Division SUBJECT: 1. ADOPT CEOA NOTICE OF EXEMPTION, PURSUANT TO SECTION 15302(8)/CLASS 2 OF THE CEOA GUIDELINES, FOR THE NINTH STREET PEDESTRIAN BRIDGE 2. ADOPT CEOA NOTICE OF EXEMPTION, PURSUANT TO SECTIONS 15301(C)/CLASS 1 AND 15304(HpCLASS 4 OF THE CEOA GUIDELINES, FOR THE DEL MAR PEDESTRIAN BRIDGE 3. APPROVE ENCROACHMENT AGREEMENTS WITH FRESNO IRRIGATION DISTRICT (FID) TO CONSTRUCT TWO PEDESTRIAN BRIDGES ACROSS FID'S CANALS (COUNCIL DISTRICTS 2 AND T) RECOMMENDATIONS Adopt finding of a Categorical Exemption, Ne Del Mar Avenue pedestrian bridge has no potential to adversely impact air quality or any order environmental area, therefore, it is exempt from CEOA pursuant to CECA Guidelirrea-15302(c)/Class 1. Adopt finding of a Categorical Exemption, the Ninth Street Pedestrian bridge has no potential to adversely impact air quality or any other environmental area, therefore, it is exempt from CECA pursuant to CEOA Guidellnes-1530l 2. Staff recommends that the Council approve and authorize Ne Public Works Director or his designee to execute bed (2) encroachment agreements to encroach in the area of FID's easement. The encroachment agreements with FID are necessary for Me construction of two (2) pedestrian bridges across FID canals. The construction of the Wiseman bridges will provide public access across the FID canal crossings. The pedestrian bridges are proposed at the FID Gould Extension No. 51 conal at Ninth Street, south of Dakota, and at FID Hemdon No. 39 at Del Mar Avenue, north of Shields Avenue. p,=urc.nmrpryr... .r Report to the City Council Adopt Finding of a Categorical Exemption and Encroachment Agreement With FID for Pedestrian Bridges July 16, 2005 Page 2 EXECUTIVE SUMMARY Staff has determined Mat the Del Mar Pedestrian bridge, north of Shields Avenue, Me within the common of a Categorical Exemption. The Del Mer pedestrian bridge has no potential to adversely impact air quality or any other environmental area, therefore, it is exempt from CEPA Pursuant to CEQA Guidelines -15302 (c)/Class 1. Adopt finding of a Categorical Exemption, Me Ninth Street pedestrian bridge, south of Dakota Avenue, has no potential to adversely impact air quality or any other environmental area, therefore, it is exempt from CERA pursuant to CECA Guidelines -15302 M)/Class 2. FY 2008 City Council appropriated $50,000 from Me Badlands Trail Project Into Contingency. The funds Were designated to he used for pedestrian Improvements adjacent to Irrigation canals. Staff recommends that Me Council approve and authorize the Public Works Director or his designee to execute two (2) encroachment agreements to encroach In Me area of FID's easement. The encroachment agreements with FID are necessary for Me conahvctian of two (2) pedestrian bridges across FID canals. The construction of the pedesMan bridges will provide public access across the FID canals as part of a Suggested Ronda to school and allow access over FID canals to prevent direct unprotected canal crossings. The pedestrian bridges are proposed at the FID Gould EMension No. 51 canal at Ninth Street, south of Dakota, ant at FID Hamdon No. 39 at Del Mar Avenue, north of Shields Avenue. BACKGROUND Staff has determined that Me Dal Mar Avenue pedestrian bridge, north of Shields Avenue, fits within the definition of Categorical Exemption as set font in CERA Guidelines, SWIM 15301 (c)/Class 1 exemption. The minor alten tion of existing public facilities, such as sheets, sidewalks, etc., involving no expansion of use beyod Mat existing W this time, are exempt from CEOA requirements. Section 15304(h)IClass 4 exemption reads: Me creation of bicycle lanes on existing rights-ot-way, Class 4 consists of minor public or private allegations in Me condition of land, water, andlor vegetation which do rot Involve removal of healthy, mature, or scenic bees except for forestry and agricultural purposes. The Pedestrian bridge at Del Mar Avenue is Proposed to be built within the existing Hamdon Canal easement and does not Involve Me removal of healthy, mature or scenic trees. Stag has determined Mat the Ninth Street pedestrian bridge, scrum of Dakota Avenue, fits Within Me dentition of Categorical Exemption as set forth in CEQA Guidelines, Section 15302(b)/Class 2 exempbon which reads: replacement of a cammardal structure with a naw structure d substantially me same size, purpose, and capacity. The replacement of exuding fadlllles, such as sidewalks, bicycle, and pedestrian trails, involving no explanation of use beyond that existing at this time, are exempt from CEQA requirements. FY 2008 City Council appropriated $500,00 from Me Banksina Trail Project into Contingency. The funds were designated to be used for Washed improvements adjacent M litigation canals. Report to the City Council Adopt Finding of a Categorical Exemption aid Encroachment Agreement With FID for Pedestrian Bridges July 16. 20N Page 3 The City Council approved $60.000 set forth in PART III of the Annual Appropriation Resolution No. 2007-214 from the existing Contingency that City Council appropriated from the Bankside Treil Project for pedestrian facilities adjacent to irrigation canals. The revised allocations will be dealt for preliminary engineering for pedestrian facilities adjacent to inigation canals that are Pad of the previously approved Hemdon Camel Bankside Trail capital project, The funding will provide for consulting services to design and engineer pedestrian improvement projects to allow Protected access over Fresno Initiation District (FID) canals to prevent unprotected canal crossings. Staff identified four (4) locations where pedestrians have direct access to FID canals. Public Works proposed to solicut and hire a consultant to design pedestrian crossings over FID canals and/or barriers to discourage unprotected pedestrian travel through the canals. City staff negotiated in good faith to hire a consultant to Provide design services for pedestrian crossings over FID canals. The City was unsuccessful in Secuntg a consultant within budget constraints. City Design staff is providing the design and engineering for Me two above-mentioned pedestrian bridges. 1. East side of Cedar Avenue, south of Dakota Avenue; this site utas denfified as needing a banner and extending an existing sidewalk to an existing bridge crossing. The barrier will discourage pedestrians from directly walking into the canal add will provide a safe pant of travel. This project was designed and completed In 2008 by City maintenance forces. (Council District 4) 2. Ninf Sheet, south of Dakota; there is an existing Pedestrian crossing over the FID canal. Due to Ie poor condition of the bridge and pedestrian banner, they both need b be replaced. This project is being designed by Me City. The encroachment agreement with FID is necessary for the construction of a pedestrian bridge to allow safe access over FID canal to prevent direct canal crossings. (Council District 4) 3. At the intersection of Clark Street and Floradora Avenue. It was determined by Public Works and FID that a pedestrian bridge was not necessary at this location, This location would not serve as a Suggested Route to School and was eliminated as a possible pedestrian bridge crossing. (Council District 7) 4. Del Mar Avenue at the canal, north of Shields Avenue; Iia site has been idenVied as needing a pedestrian bridge W allow access over FID canals W prevent unprotected direct canal crossings. The nearest crossing Point over the canal is approximately one thousand free hundred feet (1,300) west of this location at Maroa Avenue and Contend Avenue. To alleviate this inconvenience and discourage welding through the canal, Public Works Is proposing to Install a banner and designated pedestrian crossing over the FID canal. The encroachment agreement with FID is necessary for the conshudlon of a pedestrian bridge to allow access over FID canal to prevent curl canal aossirins. (Counal District 7) The encroachment agreements with FID are necessary for the construction of two (2) pedastran bridges. The construction of the pedestrian bridges will provide safe public access across the FID canals as part of a Suggested Route to school and allow access over FID canals W prevent direct canal crossings. The pedestrian bridges are proposed at the FID Gould Report to the City Council Adopt Finding of a Categorieel Exemption and Ervxoeehmem Agreement With FID for Pedestrian Bridges July 16, 2009 Page 4 Extension No. 51 canal at Ninth Street, south of Dakota, and at FID Herndon No. 39 at Del Mar Avenue, north of Shields Avenue. Staff recommends that the Council now authorize the Public Works Director to execute the encroachment agreements on beha9 of the City of Fresno. The City Aftonl9)'s Cffios has reviewed and approved to form the atechad encneachmanl agreements. FISCAL IMPACT There will be no impact W the City's General Fund rrrvrenoiw... �m cEw wus a sm -*.o a.e eau.. ro rsr rn sw Attachments: Fiscal Impact Statement Categorical Exemptions Encroachment Agreements FISCAL IMPACT STATEMENT PROGRAM: M00313- PEDESTRIAN BRIDGE CROSSINGS ACROSS FIG CANALS ANNUALIZED COST TOTAL OR RECOMMENDATION CURRENT Direct Coat $0.00 Indir Costs: $60.000 Con0ed management. design coongnation, Mn. (estimated) TOTAL COST WOOD0 A6tlRicnal Revenue or SaNngs Generated -0- Net Nd City Cost Amount B Wgeted (If none budgeted, identify source): $60.000 Indirect coat monists of Me tdloving: Project Management $20,000 Design $30,000 Preliminary Surveying $S,MO Pdntino Purcbas na dc t $s Wg Total $60,000 ANNUALIZED COST CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT NO. EA4BO6 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEOA GUIDELINES. APPLIGMIT: Cly of Fredw (Conch Nero JOMeon) Pudic WOMB DepeMunl 25UD Fresno Sbset Fresno, Cf ihmnia P3121 PROJECTLOCATION: Pndeddan bridge neer NOM NIdh Street. sauM of East DaIva Avenue PROIECTGESCRIPTTON: The Cdy of Fresno Is Pmpodng la repscs an ene3rg peaoural 1uhl whit omfcee Ilse pry Creek Canal neer NOM NNd Steell loud of Ee d andel omAvenue. TMrwwbndge wdopnalnmgobfe dna e.reafinm exduree, The pmleclafunded by Measum asure-cWr �Y role PrOPW Is examPl urflar Sonmin 1531NOYCleaa 2 of IM CelNemle EnNronmeebl Quality Ad (CEGA) Guldellma. EXPLANATION: Section I (byCka32 exemption reeds: repascemem d e commemal STINAIrs ftlm a new mmters of subafanusiyfM serve etre, popcee, and aspactY. The WrAn Rldf d lbdg still ouch as snowfall blcyc nd peaesWn ends, Involving no expansion d Use beyond dot essdg at tns the, are exempt irem CEOA regdreniens. Dan: June 18,2M Prepend By. ler I T ro, B nor Submlaed by. e en sz Panning Man Per Cal of Fmarm (terming and Govenpnnnl GepeMleni (E59)821-8217 CRY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT NO. EA -09-e7 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEOA GUIDELINES. APPLJCANT: Cly of Frewo(Contad: Me* Johnson) Public WORM; Department 2600 Friend Sheet Freane, California 93721 PROJECT LOCATION: HemOon Canal, adjacent R, Nunn Del Mer Avenue between Eaut Fencre and EM COr larM Avenues PROJECT DESCRIPTION: The City Of Fresno Is proposing to OOMW a PedeeMen bridge whin Me Herndon Cenel eesemem. The bndpe art cenuln approach fencing, a walkway and other routed ahuoturae, a poison of which will be busted whindxMhgdgMgf y.Theprojectbfulledby Measure"C"funds. This prolect Is exempt under Sections 15301(cyClaee 1 and 11304MYClm sol Me GlBemle Envlronmemsl Oually Sot (CEOA) Guidelines. EXPLANATION: Under to Broom 1E301(cVClws 1 exemption, pia minor alteration d uesng PM'n fntl00es, such as Slovene, sidewalks, ek.. Involving no axparebn d use beyond Men 10hoinp at Mu its. are exempt but CEOA requiraments. Section IdW4(hyClaw A exemption mode: Me creation of bicycle lanes on Mosserg righta.of-way Cues a 00m uuof minorpudic or Private a0em0ons In Me cond0lon of land, water, w Wm vegetation which SO not Involve removal of hearty, mature, scenic trade except for forestry rt ryoe aagmulbrel puvd. The Pedestrian bWpe Is proPeed IS W bull( wlMin the atlatlrp Herndon Canal easement and does not Invdv i to removal of hastily, mature or SOank hew. Dem: June 20, M9 Prepared By Israel Trejo, Pi BubWlled by p1e Punning Manager Cly of Fresno Plennbp Rod Development Deparmant tb59)82f A2TT r1 c FnERq elr li"15vinelnminea r..Wr.e e FR£9NO IRRIGATION DISTRICT I90 J SOUTH MAUI£ AV£NL'F. FR£SNA CA 93723-2218 ENCROACHMENT AGREEMENT LOCATION: WW SHIELDS& BLACESTONE AVENUES APN: CANAL: HERNDON NO. 39 THIS AGREEMENT is made effective as of �/ 2W9. by and between the City of Fresno, a municipal corporation ("City') and Irrigation Districl, a California irrigation district F'District"), with respectto me following facts: A. District is the owner ofa canal easement and right-of-way for its Herndon No. 39 Canal and related facilities (tire -Canal"), FID's easement for the Canal div ides North Del Mar Avenue between East Fedora and East Contend Avenues (the Easement") B. City desires to encroach into the Easement to install and maintain a pedestrian bridge stratum connecting North Del Mar Avenue over the Cevl, along with related abutments, approach fencin& walkway and other related meactures as shown on Exhibit 'A" attached hereto. incorporated herein by this reference line 'Emir achments''). C. District is willing to allow me Encroachments described above on the terms and conditions Net Iorth or this Agreement. THEREFORE, in consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as but lows: L Enereachmmnt for Pedestrian Bride. District hereby consents to Cue installation, maintenance or removal of the Encroachments within the Easement, subject to the pmamouat right of District to the full and beneficial use nod enjoyment of the Easement. Prior to in No WYMOmS-11615-016mm Amend installation of the Encroachments. City shall submit o District for Districts approval a site plan which clearly indicates the nature, ane. material and location of all Encroachments to be installed within the Easement. All Encroachments shall he installed in accordance with the approved site person a schedule approved by District to avoid interfamace with District's water delivery and maintenance schedules. District shall have the right to inspect the installation ofthe Encroachments to confirm conformance with the site also. City acknowledges and agrees Nat District's right to approve the installation and construction of the Encroachments as provided in this Agreement fi) is solely for the bmmtit of District, hl that not assign to District any responsibility for the safe and proper construction of the Encroachments, and (iii) shall not result in District's assumption of any liability for the Encroachmme, 1 Coslsof Encroachments. City shall bear all costs ofinshlling, maintaining requiring and replacing the Encroachments. 3. Maintenance ofEncroachmonts. City shall at all times maintain the Encroachments sa as not to interfere with the normal operation and maintenance of the Canal. Should City fail to maintain, again or replace the Encroachments. District shall have the right (but not the obligation) to pci form any maintenance, repair, replacement, or removal necessary for District's unhindered use of the Easement following moralistic written notice to City. City shall be responsible to reimburse District on demand for any reasonable cost incurred by District in connection with the Encroachments. with interest at the rate of Iflaper annum on any unpaid balance of said casts to accrue starting 30 days after written demand for payment is made. 4. Reparof Canal. City shall repair or replace at City's sole expense any portion of the Canal damaged by or as result of the installation; maintenance, repair or replacement of any of the Encroachments. In the event City fails, neglects, or refuses to repair or glace the damaged portions of the Canal within 30 days after written notice Earn District or otherwise fails to proceed diligently in repairing or replacing any damaged gonion of the Canal. District shall have Me right, but shall not be required, to make any such repairs or replacemcros, and City shall repay to District the cost of my such repairs or replacement with interest at the rate of IIty per annum Rom the dalchd amounts were expended by District for such relocation. 5. Increased Maintenance Expenses. The parties acknowledge that, as a result of Ne installation of the Encroachments, District's cost for maintenance of the Canal may be increased due in additional reasonable precautions and actions that will be necessary in order to access the Canal without affecting the Enumerators, The parties shall cooperate in connection with the maintenance of the Canal, and shall meet and confer regarding the purpond increased maintenance resulting from the Canal. City shall, within 30 days after written demand from Distdc4 mandiorse District for the cost of such additional precautions and actions that would not have been necessary Irthe Encroachments had not been installed, with interest at the rate of] 0% per amum on any unpaid balance of said costs to accme starting 30 days after written demand for payment is made. 6. retaliating of Encroachment. City shall comply with all external, shire and local codes and ordinnnces regarding the installation, maintenance, repair and replacement of any rmrvo. Nis? M3041615 01 ue,owhucu, Encroechmrnts. City shall locate, construct and maintain the Encroachments in such a meaner and of such material as may be required to prevent interference with Distinct s present or future uses Office Eaaement, 7. TidetoProosarty. All Encroachments installed orcorvsvucted pursuant to this Agreement shall he the property of City, l'he Easement and the Canal shall remain the property of District, said City shall haveno right. title or interest therein except as Offsvlyprovided hdreia Without limiting the generality of the foregoing, the manner. mdhod and time of conducting and discharging water through the Canal shall be in the sole and absolute control of District, and the nature said extent of the Easement shall in no way he diminished or rmtdmel by the Encroachments. Except m herein otherwise provided, neither District nor City shall have any right, title, or control over the other's property, except as provided by law. 8. No Grant of Read Notwithstanding any other provision ofdds Agreement, nothing herein shall constitute a grant ofany real property, rights to City. City acknowledges that all rights required for the Encroachments must be acquired from other parties (tothe extent that City does not already have such rights). By this Agteament, District is only agreeing not to object to the location at Encroachments within the Easement (subject to the terns and conditions set forth herein), and is not purpentng to grant any rights to install the Encroachments (except as set both herein). 9. Reg ase. District shall not be liable for any damage to the Encroachments, or to any other City property associated with the Encroachments, that may result from DisbiuPs operation, maintenance, repair or replacement ofthe Canal, with the exception ofdamage caused by District's gross neglect of care in performing operations, maintenance, repair, or replacement of the Canal. 10. No Precedent. 'fhe rights herein granted to City are limited to the Eneroachmcros and shall not constitute a precedent for the grinning of any other permission for encroachments upon any other casement or right -of way of District. City acknowledges and agrees that the rights herein granted are not intc idM to diminish the rights of District in the use or maintenance of its facilities. II. Emigra'y. (a) City shall indemnify. hold hominess and defend District and each of its directors, officers. employees and authorized volunteers from any arM all loss, liability, fines, penalties, f r atures, costs and damages (whether in contract, tori or strict liability, including but not limited to personal injury, death at any time and property damage) tricurrod by District, City or any other person, and from any and all claims, demands and actions in law or equity(including attomey'sf and litigation expenses), arising boom the negligent or intentional acts, omissions or willful misconduct of City or any of its officers, officials, employees, agentsor authorized volunteers in its ownership or use of the Encroachments. Fruits Eu'mrcamrnr (b) District shall indemnify, hold harmless and defend City and each of its effects, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfellems, costs and damages (whether in contract, Ion or strict liability, including but net IimiteA to personal injury, death at any tine and property damage) incurred by the City, District, or any other person, and Gum any and all claims, demands and actions in law or equity lincluding attorney's fees and litigation expanses) arising from the negligent or intentional acts, omissions or willful misconduct of District or any of its directors, officers, employees, agents or auntu nzd volunteers in its ownership, mainternmtee and use ol'the Canal, to the extent that City's liability arises from its ownership or operation 01 the Encroachments. (c) In the event of concurrent negligence on the pan of City or any of its Officers, officials, employees, agents or mothorieed volunteers, and District or any of its directors, Officers, employees, agents or authouzed volunteers, the liability for any and all such claims, demands and actions in law or equity for such losses, fines, penalties, literatures, costs and damages shall be apportioned under the State of California's theory OfImperative negligence w presently estatahmd or as may be modified hereafter. (d) Ilia section shall survive termination or expiration of this Agreement. 12. Ex'sfnn R'elns N gRedd. Nothing herein shall be construed as a release or waiver of tory claim which District may have as of the dale of this Agreement with respect to any City encroachments within the Easement which do not comply with the teams of this Agreement or which are oat otherwiseauthomcd by law or by agreement betwcce the parties. 13. '1'emrinalion for Default. Distract shall have the right to terminate this Agreement upon City's failure to cure a default of this Agreement within thirty (30) days after wdnen notice [hereof fmm the District, in addition to any other rights District may have at law or in Nair for such default. Upon such termination, the City shall remove the Encroachments and repair any damages. to the Canal caused by such removal, at City's expense. 14. Further�u_rances. From time to lbne and at any time after the execution and delivery hereof, each of the factors, 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. I5. Entire Agreement. This Agreement constitutes the entire agmement between the parties pertaining to the subject maria contained in it and supersedes all prior and contcmpmaneous agreements, representation and understandings ofthe parties pertaining hereto. No supplement modification, or amendment of this Agreement shall be binding unless executed in writing by all of the parties hereto. lo, Waiver. Waiver army breach of this Agreement by any panybereto shall not constitute a continuing waiver or 4 waiver of any breach of the same or another provision of this Agreement. FID N, 10(s) D039-n61cin enirmdnmen 17. 9indine Effect This Agreement shall be funding upon and inure to the benefit of the assigns and successors ofthe parries hereto. 18. tele ad Feea. Should any legal action or proceeding he commenced between the panics hereto concerning this Agreement, or the rights and duties of other party in relation Oracle, the party prevailing in such action or proceeding shall no entitled, in addition to such other relief as may ona be gramed, to recover from the other party its reasonable attorneys and paralegals' tees and other legal expenses incurred in connection with such action or proceeding. 19. Governing Law. This Agreement shall be governed by the laws of the Slate of California. 20. Construction, Al I writes used in this Agreement shat l be construed to include the plural as well as the singular number and vice versa. Words used herein in the present tense shall include the mine as Well as Ne presents, and wards used in the masculine gender shall include the feminine and neuter Sunders. 21. Parties int tr t. Nothing in this Agreement, whether expressed or implied, is attended to confer any rights or remedies on any persons other than the parries hereto and their respective successor 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 Agement, nor shall any provision give any third person any right ofabrogation or action over and against any party to this Agreement, 22. NO[ICaa. Al l mucus and other communications required under this Agreement shall be in writing and shall be deemed to have been du lv given (p on the date at sarvice, if arrived personally on the person to whom notice is to be given. (ii) on the date of service if sent by teloa pier with confirmation of successful transmission, provided that tritium 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 survive, or (iv) on me mind day after mailing, i (mailed to the party to whom notice is to be given by first clam out, registered or certified, postage prepaid, and properly addressed as follows: To District Fresno Irrigation Distinct 2907 South Maple Avenue Fresno, CA 93725-2218 Atm: General Manager Fax: (559)233-8227 To City: City of Fresno Atm: City Engineer Fax: MI)NOA s9-0ms.naiscr mmamm,ger A parry may change its address for notices by providing notice to the other parries as provided above. W WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the dale first above written. ,.City" CITY OF FRESNO By Scott Mozier, Assistant DTiccmq Public Works Department ATTEST: R aE. Kliech �/p7 City Clerk APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney j�—,,��,p Dy:W� Katherine Bradley Date Deputy City Attorney BI REVIEWED BY: E'n Roulades, Assistant Public Works irccter Department of Public Works FIDNu. 2IX [)0391161541 Encuarlin n `District" FRESNO IRRIGATION DISTRICT By — Jeff Boswell, Presidenr By. Gary RAS rneto, Secretary �J it T 0.. I Z F h IIS � I y a a o K fk Ik �i 'a s STATE OF CALIFORNC, ) ISS. COUNTY OF/q6�y70 ) On /}%pyy pursonadlyappd— before me,_ (,(p/ Notary Public, who povNll t e it Webat esatisfactorywledge ohe tthapetson(s)whosenamd theica re m 4islihN to the within instrument and and that acknowledged to me thastorso /they n the icd the same n bPerso/their authorized tutility camcupon beams L and that byblegoms) ar ed, execute on the instrument the persoo(s), or the mttity upon behalforwhich the person(s) edea, executed Iheioawmcm. I certify under penalty Orpc�ury under the laws of the State ofCalifomia that the foregoing paragraph is true and correct. / rwsns.. ceca Wins roar ring- caxxno cwv - Notary Public tMcm�u Borert o.= Is ame STATE OF CALIFORNIA I ISS. COUNTY OF On . before mq J NotaryPublic, personallyappeared who provui to me on the basis ofsatislaclory evidence to be the persons) whose nae(s) is/arc subscribed to the within instrument and acknowledged to me that he/she/thcy executed the same in hisfher/thoh authorized dapacitAres), and that by hlsdi /their sigoalurgs) on the instrument the persov(s), or the corny upon hehalfof which the persons) acted, executed the instrument_ I certify under penalty ofpee ury under the laws of Ne State of California that the foregoing paragraph is toe and eoveeL Notary Public - FID STATE OF CALIFORNIA ) )SS. COUNTY OF No. Z ic, haw 11615111 Lnemssamrnt On )g 1e_�, before me, XEuf QumwY +�auJrc Notary Public. personally appeared Seor MUZ C1 who proved to me on the basis ofsetisfactory evidence to he the person(s) whose names) Blare subscribed to the within instrument and acknowledged to me that he/she they executed the same in his/houtheir authonzed capaciry(ics), and that by his/her/their sig idurep) on the instrument the personls), or the entity upon behalf of which the Perseids) acted, executed the instrument, 1 coni fy under penalty of perjury under the laws of the Stale of California that the foregoing paragraph is tme and correct. STATE OF CALIFORNIA ) )SS. COUNTY OF On ,before me, ,Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to he the person(s) whose nanrefs) is/arc subscribed to the within ilumunent and acknowledged to me that WsheAhey executed the same in his/her/their authorized upacity(iod. and that byhis/her/their signaturc(s) on the instrument the petaon(s), or the entity upon behalfof which the personls) amei, executed the instrument. I certify under penalty ofpepury under the laws ofthe Stale of Calif anal that the foregoing proncruph is me and coma t. Notary Public RD NeaW9 W39JI415-0I U oo cjnant riwtaR-kI0 on auks ecce D"snon ,_,.axa.e� FREsissi sturA r/UN D/SPR/[r 2907SOUT11 sLAPG£AVFNb£ FRESNO. CA 93]25-2218 ENCROACHMENT.AGREEMENT LOCATION: S/E DAKOTA AVENUE& NINTH STREET APN: CANAL GOULDEK'1'ENSIONNO.15i THIS AGREEMENT is cede d4clive as wr/dt 229, 2009, by and between the City of Fresim, a municipal corporation ("Cit.') and the Fresn��``�-pttiun District, a California irrigation district (..Distdef ), wilh mspect to the following facts: A. District is file owner of a canal easement and right-of-way recorded on November 21, 1978 as Document Number 130063 Official Records of Fresno County, for its Gould Extension No, 151 Canal and relanal facilities, as shown on Exhibit "A" attached hem o. incorpnmvrl harem by this mference (the "Easement"). D. City desims to encroach into the Easement to remove an existing pedestrian bridge, and to install and maintam a new bridge, abutments, approach fencing, walkway and other related structures as drown on Lxbibit `H^ atached heretm incorponowl herein by this reference (the "Encroachments"). C. District is wi l ling to allow the Encroachments described above on the fvms-and conditions set forth in this Agreement. THEREFORE, in consideration of -the mutual covenants and conditions con Wined in this Agreement, the parlisa aguee. as follows: 1. Encroachment Pedestrian r _ District hereby consents to City's removal of life existing pedestrian Endre and related stmctums, and to file installation, maintenance or removal of the Encroachments within the Easement subject to the paremm nt night of District to 9m rvu'009.D 151 1161s432 Ems,"nmml / Me full and heneficIa] use and enjoyment of the Easement. prior to installation of the Encroachments. City shall submit to District for D idners approval a site plan which clearly indicates the nature, size, material and location efall Encroachments to be installed within the 2. Easement. Removal ofthe existing bridge and installation ofall new Encroazhments, shall be in accordance with tlm approved site plan on a schedule approved by District to avoid interference with District s water delivery and maintenance schedules. District shall have the right In inspect the Installation of the Encroachments to confirm conformance with thesite plan. City acknowledges and agrees that District'a right to approve the installation and construction of the Encroachments as provided in this Agreement (i) is solely for the benefit of District, (it) shall not assign to District any responsibility for the safe and proper construction of the Encroachments. and (iii) shall not result in District's assumption of any liability for the Encroachments. 3, Costs of Eneroachmems. City shall bear all costs ofremoving the existing pedestrian bridge and relntcd sWctures, end ofinstalling, meinttintntg, repairing and replazing thetncroaehments. 4 Maintenance of Encroachments. City shall at all times maintain the Encroachments so as not to interfere with the normal operation and maintenance of the Canal. Should City fail to maintain, repair. or replace the Encroachments. District shall have the right (but not the obfigation) to perform sty maimenence, mime. effacement, or nmwal necessary for District's unhindered use ol'the Easement fallowing reasonable written notice to City. City shal I be responsible to reimburse District on demand for any reasonable cast incurred by District in connection with the Encroachments, with interest at the rate of 10% per annum on any unpaid balance of said costs to accme starting 31)days after writer demand for payment is made. 5. Reser of Canal, City. shall repair or replace at City's sole expense my portion of the Canal damaged by or as a result of the removal of the existing pedestrian bridge and the installation, maintenance, repair or replacement of any of the Encroachments. In the event City fails, neglects, or refuses to repair or replace the damaged potions of the Canal within 30 days alter written notice from District or otherwise fails to proceed diligently in repairing or replacing any damaged portion of the Canal, District shall have Me right, but shall not he squired, to make any such repairs or replacements, and City shall repay to Distinct the cost of any such repairs. or replacement with interest at the rate of 10% per annum from the data(s) mounts were expended by District for such mlecation. 6. lncrcosed Maimcnance Fxoens_es, ate parties acknowledge that, as a result of the installation of the Encroachments. District'a cos; for maintenance of the Canal maybe increased due to additional reasonable precautions and nbons that will be necessary in order to access the Canal without affecting the Eneruachments. The parties shall coopente in connection with the maintenance of the Canal, and shall meet and confer reyardi ng be punponN increased maintenance resulting from the Canal. City shall, within 30 days alter written demand from Districts reimburse District Por the cost of such additional precautions and actions that would not have been necessary if the Encroachments had not been installed. with interest at rate of 104 Fm NoOWa-OI51-1Ifi15L]lnmmcM1irtm o per annum on any unpaid balance of said costs to premeditating 30 days after written demand for payment is made. 7. Installation of Encroachments, City shall comply with at I federal, state and local codes and ordinances regarding the removal of the existing pedestrian bridge and the instal Iation, maintenance, repair and replacement of any Encroachments. City shall locate, consamen, and maintain the Encroachments in such a manner and of such material as may be required to prevent interference with District's present or future uses of the Eosemenl. g. Titleto Prall All Encreachmems installed orconsmucted pursuant to this Agreement shall be the property obCity. The Easement and the Coca] shall remain the property of District, and City shal I have no right, tide or interest therein except as expressly provided herein. Without limiting the generality of the foregoing, the manner, method and time of conducting and discharging water through the Canal shall be in the sole and absolute central of District. and the nature and extent of the Easement shall in no way be diminished or restricted by the Encreachmenta Except as herein otherwise provided, neither District nor City steal l have my right, title, or control over the other's property, except as provided by law, 9. NO Grant ofRealP Rah . Notwithstandingaayotherpmvisionof Ws Agcemen,nothing humin shall constitute a grant ofany mal property, rights to City City acknowledges that all rights required For the Encroachments must be acquired from other parties (m the extent that City does not already have such rights), By this Agreement, District is only agreeing not to object m the location of Encroachments within the Easement (spbjG to the terns and conditions set both hernia), and is not purporting to green any rights to install the Encroachments (except as sa forth herein). lo. Release. District seal not be liable for any damage to the Enemazhments. or to any other City property associated with the Encroachments, that may result from District's operation, maintenance. repair or replacement of me Canal with the exception of damage caused by District's gross neglect create in performing operations, maintenance, repair, or replacement of the Canal. it. No Precedent, The rights herein granted to City are limited to the Encroachments and shall not constitute a precedent for the ginning of My other prnnission for encroachments upon any other easement or right-aGway of District. City aeknowledgesand agrees Mat he rights herein granted am not intended to diminish the rights of District in the use or maintenance of its facilities. 12.. Indemnity. (a) City shall indemni fy, hold harmless and defend District and each of its directors, mincers, employees and authorized volunteers from My and all loss, liability, Rues, penalties, forfeitures. costs and damages. (whether in contract, tot or strict liability. Including but not limited to personal injury, death at any time and property damage) mored by District. City or any other person, and tram any and all claws, demands and lions in law or equity (including attorney's fees and litigation exponsue), arising from am Nm 2W4ms IJarS xEnememmlm the negligent or intentional acts, omissions or wi l l fol misconduct of City or any or its officers, officials, employees, agents or aadtodzed volunteers in its ownership or use of the Encroachments. (b) District shall normally, hold harmless and defend City and each of its officers, officials, employees, agents and auPoorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by tlm City, District, or any other person, and from any and all claims, demands and actions in law or equity (including edorner, s lees and litigation expenses) arising from the negligent or Intentional acts, emissions or willful misconduct of'Disviel or any of its directors. Officers, employees, agents or authorized volunteers in its owners hip. maintenance and use of the Canal. to the extent that City's liability miser fiom its ownership or operation of the Encroachments. (c). In the event or commercial negligence on the part of City or any of its ofTcem, officials, employees, agents or authorized volunteers, and District or any of its directors, officers, employees, agents or authorized volunteers, the liability for any and all such claims, demands and actions in law or equity for such losses, fines, penalties. foh itures, casts and damages shall be apportioned under the State of California's theory of comparative negligence as presently established or as may be modified hereafter. (d) This section shall survive termination or expiration of this Agreement. 13. ExisElnRiight Not Ar dM. Nothing herein shall be construed Asa releaseor waiver of any claim which District may have as of the date of this Agreement with respect to any City encroachments within the Easement which do not comply with the terms or this Agreement Or which arc not otherwise authonzcd bylaw or byarpoement between me panics. 1q. Formulation for Default.. Diapid shall have the right to terminate this Agreement upon City s failure to cure a default ofthis Agreement within thirty (30) days after written notice thereoffmm the Disldd, in addition In any other rights District may have at law or in afwty for such default. 15. fnmher Assures. From time to time and at any time after the execution and delivery hereof. each of the padies, at its own expense, shall execute, acknowledge and deliver any Posher instruments, documents and other assurances reasombly requested by the other pony, and shad) cake any other action consistent with the tames of this Agreemrent that may reasonably be requested by the other party, to evidence or tarty out the intent of this Agreement. 10. Entire Agreement. This Agreement conslitntes the entire agreement between the parties pertaining to the subject matter commistrl in it and supersedes all poor it contemporaneous agreements, representations, and understandings of the parties penaisu ig hereto. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all of the parties hereto. PID rvp u0s-D15e11615 02 mem¢1imem 17. Waiver. Waiver of my breach of this Agreement by any party Hereto shall not naticate a continuing waiver or a waiver ofany breach of the same or another provision of this Agreement. 18. Binding Effeel. This Agreement shall he binding upon and inure to the benefit of the assigns and successors of the parties hcrem. 19. Lucas. Should any legal action or prucceding be commenced New eenthe Parties hereto conceming this Agreement, or the riehts and duties or either party in relation therdo, the party prevailing m such action or proceeding shall be entitled, in addition m such other rel ic£as may be granted, to recover from the other party its reasonable attorneys' and paralegals' &es and other legal expenses incurred in connection with such action or preceeding. 20. GOveming Law. This Agreement shall be governed by the laws ofthe State of California. 21. Construction. All words used in this Agreement sbd11 be cmrsmsd to include the plural as well as the singular number and vice versa. Words used herein in the present tense shall include the future as well as the present, and words used in the masculine gender shall include the feminine and neuter genders_ 22. Panics in mtemst 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 crony third person to any patty to this Agreement, nor shall any provision give any third person any right of subrogation or action over and against any party to this Agreement. 23, Notices. A 11 natives and other communications Marriott under this Agreement shall be in writing and shall be deemed to have been duly given (i) on the dam or service, if served personally on the person an whom notice is m be given, (a) on fie date of service ifscnt by telecopier with conlimlation ofmccessml hansmismon, providod that notices received by tommigier after 5:00 p.m. shall be deemed given on the next business day, (iii) on the next business day under deposit with a recogNzed overnight delivery service, or (iv) on tic third day alter mailing, if mailed to the party to whom notice is to be given by first class math regismrd or coni tied, posmge-prepaid, and properly addressed as follows: To District: Prose Irrigation District 2907 South Maple Avenue Fresno, CA 93725-2218 Attn: General Manager Put: (559)233-8229 Fm Na. 20W.n 151-11615.02 F.nvoavhmmr To City CityofFmxno Alm: City Engineer Fax A party may change its address for notices by providing notice to the other parties as provided above. [remainder afpage MAnno tally left blank] FID N, Nx9-0151J1615-14 F.nurauh,,M M WITNESS WHEREOF, the Parties have executed this Agreement to be etrective as of the dam first above written. 'City" CITY OF FRESNO BY Scott Mosier, Assistant DiW Pubhe Works Department ATTEST. R ccs. E.KIi�~y(EZloq C yClerk APPROVED AS TO FORM JAMES C SANC'HEZ City Attorney BY: � I Katherine Bmdley DAte Deputy City AttomeY III REVIEWED BY�) En Bshuelos, Assistant Public Works rector Departmentof Public. Warks FID Ne2009.DI6111015 02 Enam¢hMni "District" FRESNO IRRIGATION DISTRICT By JeFFR swelrdent By. Gary Rato, Secret Sae FaBlbit "An atrelhea Ind made a pert M1ereo T. with a_aecoadary assonant for access to and mono from ed as to See Exhibit "B" attached and made ap ry hereof e any pertro£rNa proPorgylreset" Onto ncladed within maid le a ndaryves the �� to tifor any purpose c cted with Grantors' we of Ceir ed oin e IaMa o lobi a said 'meis not inchwiatent with r does not in[eerrfetw Grantee. with nteea' use of its snit eaa®an s or any right herein granted to IN WITNESS WEEEEGE, Grmve tore hosamcond this Grant the day am year flnt above written. Signed and aallarea in the presence of: GIs 3758 EXHIE (NINTH AVENU& PEDESTRIAN BRI EGE 6 GOULD EXTENSION NO 151) 5w 7l% a 55e RECORDED AT INE xEGEEST OF An RENXN TO Mt RVNyE, I G 16 Imd R4 E x a Aram. anm rO, lli,g Fe Y ORIGINAL TWd 06-Frt-41-27,2 Is( ]5140 xis CMdT OF 6R.ra6i WAY MIS xNOEMVRP, pude and entered into this day of Detwer I915 by and between Q. T. WFAwAx , .ne vluiE xeu FAUWAx - xn.enna .ne Rite - g a. Gt.ntor...m FRFSxO IMOVATtGx DISTRICT, a public corponciw 137 tLs Couany of from", Stets of Ceilfornir, am Grantee, o\ WITN E 5 S 8T R: *yl I>Brmt Granton Ertl 9001 :M Valuable Consideration, de hereb is Grantee a DereerwS an _ Sae FaBlbit "An atrelhea Ind made a pert M1ereo T. with a_aecoadary assonant for access to and mono from ed as to See Exhibit "B" attached and made ap ry hereof e any pertro£rNa proPorgylreset" Onto ncladed within maid le a ndaryves the �� to tifor any purpose c cted with Grantors' we of Ceir ed oin e IaMa o lobi a said 'meis not inchwiatent with r does not in[eerrfetw Grantee. with nteea' use of its snit eaa®an s or any right herein granted to IN WITNESS WEEEEGE, Grmve tore hosamcond this Grant the day am year flnt above written. Signed and aallarea in the presence of: GIs 3758 EXHIE (NINTH AVENU& PEDESTRIAN BRI EGE 6 GOULD EXTENSION NO 151) 9a,7: fi 1i•tuf 560 EXNIBIE "A" ones 1 TEor aRetportion f act s 1 in National Colony per map recorded In ea follows. of t page J8, Fresno Cooney Records dvmited 6GGi NNING at the southwest corner of the land conveyed to 0. T. Germany.9Fee oo Count[ Offirecorded cial a....do va said southwestin .net 6922 bears aR 1'10'06"N. 410.00 feet free he Intersection of the west line of slid lot with the south line of the north 20 feet of the S. E. k of Steel,, 20, T. 13 5., R. 10 E., N. I. M.; TRENCE (1), along said west line, N.l°10'06"E., 29.58 feet 3H Dan (2). 5.66.21'11' E., 49.63 feet; MIKE e3). 5.89.49'44"E., 81.41 feet to the east line of the vest 1 acres of said lot; THENCE Bou, along last said "at line, 5.1'10'06^4 .. 18.86 feet to the south Ilow of the land conveyed by sold deed; DRENCE [5), along last said south line, N.89-43'ST'N.. 136.N fee[ to he point of begioning. IIIM IN ui: 23rd"' , ._ Octgbe[�" Nd INNN N, wri xo-.., ix ..Nna. No., off,- N, F, IN. IN. Ne.e eL.��i.1 N,Nvsw1, al"Ni, e.0 . of........,..w n 1..w .N.. -IN. w.,ovo soli w. w.p, ..,�/-1vvN4. lillof IN, I Ids owl New. s �� G. T. Gateway and Nlllle R11 CaaSway, sax evow illif wn....,• w.•he. wOOMµ F01M whom Sanu.Ille_NolRA. 11 OYI� Gloria L. Atl® Part of lohaenr No. 19140 -NTS, dated Blinker 19, 1938 EXIT A - ^IL�CROpCEMENT AG�RE .fAENT (NINTH AVENUE PEDESTRIAN BRIDGE 6 GO= EXTENSION NO 151) ="a7!59,'aaE561 ENX1Bli "g" BEGINNING at the r,aterly terminus of Caurye (2) described In Mhlbit "A". THENCE along. Coucaea (2) and $3j 41 deecrlbed In Exhlblt "A", he fallowing 87.41 feet (to the86-21 1e east line of4 the3westtIndl act,, O Be aid let;"E.. Id let; ITENCE (3), 11,19 paid east line. N.1'l0'06"E.. 13.16 fee[, (HENCE (4), 5.89'35'06"W., 87.17 feet; THENCE (5). N.86'31'IP'M.. 48.)0 feet to the ,At lips.. of said lay THENCE O6). along slid wear tin,. S. PIO'06'W., 12.01 feet to the point f boginni,g. Containing 0.0led912 of n acre a r or less In addition to that ofrtionDnew e Crews a,",wana l ad and being used far ecce a to and the maintenance Part of Wcunent No. 79140-M(E, dated Catcher 19, 1978 EXHIBIT A — (NINTH AVENITE PMESTRIAN BRIDGEMS GOOLO EXTENSION NO 1511 STATE OF CALIFORNIA ) )SS. COUNTYOFFMW ) On �!!% ,hcrorcin QiNotary taryPublic, personally app me who proved to me on the basis o' satisfactory cvl "cct a the person(s)whosc name(s}idare subscribed to the within instrument and acknowledged to me that lielahca'they executed the same ink,/thou authorized camelay(Ies), and that by.hiW their signamm(s) on the instrument Me Keele (s), or the entity upon behalf of which the persons) acted, executed the instrument. 1 certify under penalty or perjury under the laws of the State of California that the foregoing paragraph is We and correct. rspaxu cstt ---/ h _ tm.rmrnasa> l(f r�oes.s' € Notary Public ulCum,1'gY�LYe11,�V STATE OFCALIFORNIA ) )SS. COUNTY OF On ,ho[uoc mq ,Notary Public, Personally appeared _ who proved to me on the basis of saliefactory evidence w be the pcmon(s) whose wne(s) is/we Subscribed to the within instmmem and acknowledged to me that hwid /they executed the some in bis/ber/Their authorized capaciry(ics), and that by his/her/their signaturc(s) on the instrument the person(s), or the entity upon behall'ofwhich the persons) acted, executed the minumment. I certify under penalty Ofpcq ury, under the laws of the State of California that the foregoing paragraph is we and correct. Notary Public STATE OF CALIFORNIA I SS. COUNTY OF ) FID No_20g)-m51-I lrlP02 enemu hmeu lm ul-v AR,1o.,9, before me.Notary Public, Personally appealed Sir ✓ D' ! E le who proved to me on the basis ol'satisfactery evidence to he the person( whose nanicKl ue subscribed to the within instrament and acknowledged to me that he/ybe/yhey executed the some m his/I o[cor authmixed capaciy(bou, and that by his',bat/t}iar signatmeW on the instrument the petsn i), or line entity upon behalf ofwhich the persn(s) acted, executed the instrument. 1 cedify under penalty Of limply Ruder the lawsof the State of California that the Ibregoing Paragraph is nue and correct. Irtw[m ultxoxrsoeoutx �—'�e cwxrm nNtw Nomry Public ��'--� M�aWle� emp tmpi 11 M1J STATEOP'CALIPORNIA ) gb. COUNIYOF ) On _ _, before me. , Notary Public, Personal ly appeared who proved to me on lhehasisof antis( tory evidence to be Rha pcmon(s)whose osmo(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized aapacity(ies), and that by hoeher(their signatures) on the instrument the person(s), or the entity upon behal fofwbich the persan(s) acted, executed the instrument. I codify under penalty orpeoury under the taws of the State of CaliPomia that the foregoing paragraph is true amt correct. Notary Public do x�. ma-ntsetsts.oz a��ao<nmm, to Flnko n iE- a z z 0 I fF �o� _ a 1I � m a I F uFi lr Y 2 2