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HomeMy WebLinkAboutFresno Irrigation District - Relocation of Pipeline Maupin No 118 Canal - 2013IE -d .=o9z.o LUOÉ.9UFtLoOØ > _il Lo()ai ı Recording Requested By And When Recorded Mail To: F'RESNO IRRIGATION DISTRICT 2907 SOUTH MAPLE AVENUE FRESNO, C493725-2218 The undersigned grantor(s) declare(s): DOCUMENTARY TRANSFER TAX IS S O AGREEMENT FOR RELOCATION OF'PIPELINE OWNED BY FRESNO IRRIGATION DISTRICT AND COMMON USE AGREEMENT LOCATION: SAil NEES AND WILLOW APN: 404-072-l0s & l1s and 404-481-18, 19s & 20s FACILITY: MAUPIN NO. 118 CANAL å1urre This Agreement is made effective as of 013, 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 an inigation pipeline identified as the Maupin No. 118 (the "Pipeline") located on the real property more particularly described in Exhibit A hereto (the "Property"). District's easement for the Pipeline is described in that certain Grant of Easement and Right of Way dated January 12,1966, recorded January 13,1966 at Book 5263 Page 490 of the Official Records of Fresno County. B. The Property is located at the southwest corner of the intersection of V/illow and Nees Avenues. City desires to widen V/illow Avenue and construct certain road, pedestrian and landscaping improvements on the Property, which will require the relocation of the Pipeline. C. District requires nsw easements for the relocated Pipeline. City has acquired and provided to District new easements for all portions of the Property except Fresno APN 404=072- 10s. These easements are set forth in the following instruments recorded in the Official Records of Fresno County: (i) Grant of Easement dated January 24,2012, recorded June 11,2012, as DocumentNo. 2012-0080855-00; (ii) Grantof Easement dated June26,2012, recorded July 5, 2012 as Document No. 2012-0093373-00; (iii) Grant of Easement dated January 26,2072, recorded August 29,2012, as DocumentNo. 2012-0121380-00; and (iv) Grant of Easement dated December 2,2011, recorded February 25,2013, as Document No. 2013-0028719. 2013-Dn 8-J1676-05 D. Fresno APN 404-072-l0s is currently the subject of eminent domain litigation (City of Fresno v. Donald E. Jackley, et. al, Fresno County Superior Court Case No. 12 CE CG 02346) (the "Eminent Domain Case"). City obtained an Order of Possession on December 12, 2012, pursuant to which it may lawfully take possession and move forward with its construction plans. Following final disposition of the Eminent Domain Case, City will have an easement over, under, and through the Property. E. The parties desire to provide for the relocation of the Pipeline and the grant of a new easement to District for the Pipeline over Fresno APN 404-072-10s, on the terms and subject to the conditions of this Agreement. NOV/ THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: I . 404-072- 10s Easement. City agrees that upon acquisition of suffrcient interest in the Fresno APN 404-072-l0s as contemplated in Recital D above (whether by court order or settlement), City shall grant or cause to be granted to District an easement over Fresno APN 404-072-l0s within the area described in Exhibit B hereto to construct, install, operate, use, maintain, alter, repair, improve, reconstruct, enlarge and supplement pipes, pipelines and conduits, and to flow and conduct water through said pipes, pipelines and conduits, across, over, through and under Fresno APN 404-072-l0s (the"404-072-l0s Easement"). District's rights in the 404-072-10s Easement area shall be at least reasonably equivalent to its rights under the 1966 agreement described in Recital A, subject to the City's rights as described in this Agreement. Without limiting the foregoing: (a) The 404-072-10s Easement shall include all rights convenient or incidental to the use thereof including the right of ingress to and egress from said Easement so described over and across the Property. (b) All pipes, pipelines, conduits and other facilities constructed by or for the benefit of District upon and within the 404-072-10s Easement shall become, and remain the property of District and shall be maintained by District at District's expense and City shall have no obligation, right, title or interest therein. (c) When said pipes, pipelines and other structures or facilities shall be constructed and maintained, the manner in which they shall be constructed and maintained and the time and manner for conducting and discharging water through the same shall be in the sole and absolute control of District. The easements described in Recital C above and the 404-072-l0s Easement are collectively referred to below as the "Easement." 2. Encroachments. (a) District hereby consents to City's installation, maintenance and removal of improvements within the Easement area ("Encroachments") that do not unreasonably interfere with District's use of its own facilities or the Easement. City shall comply with 2013-D118-J1676-0s all federal, state and local codes and ordinances regarding the installation, maintenance, repair and replacement of any Encroachments. (b) Prior to installation of any Encroachments, City shall submit to District for District's approval a site plan which clearly indicates the nature, size, material and location of the Encroachments to be installed within the Easement area. District shall not unreasonably withhold such approval. All Encroachments shall be installed in accordance with the 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 to inspect the installation of the Encroachments to confirm conformance with the site plan. City acknowledges and agrees that District's right to approve the installation and construction of the Encroachments (i) is solely for the benefit of District, (ii) 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. (c) City shall bear all costs of installing, maintaining, repairing and replacing the Encroachments. City shall at all times maintain the Encroachments so as not to interfere with the normal operation and maintenance of District's facilities. Should City fail to maintain, repair, or replace the Encroachments, District shall have the right (but not the obligation) to perform any maintenance, repair, replacement, or removal necessary for District's unhindered use of its facilities or the Easement following reasonable 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 ljYo per annum on any unpaid balance of said costs to accrue starting 30 days after written demand for payment is made. (d) City shall repair or replace at City's sole expense any District facilities damaged by or as a result of the installation, maintenance, repair or replacement of any of the Encroachments. In the event City fails, neglects, or refuses to repair or replace any such damage within 30 days after written notice from District or otherwise fails to proceed diligently in repairing or replacing such damage, District shall have the right, but shall not be required, to make any such repairs or replacements, and City shall repay to District the cost of any such repairs or replacement with interest at the rate of l0o/o per annum from the date(s) amounts were expended by District. (") All Encroachments installed or constructed pursuant to this Agreement shall be the property of City. Except as herein otherwise piovided, neither District nor City shall have any right, title, or control over the other's property, except as provided by law. 3. Pipeline Substitution of Canal. City shall relocate that portion of the Pipeline located on the Property as provided below. (a) City agrees at its expense to lay, construct, and install approximately two thousand and six leef (2,006') of thirty inch (30") diameter ASTM C-36I rubber- gasketed reinforced concrete pipe (RGRCP), with such inlets, outlets, connections and 2013-Dr 18-J1676-0s other structures as may be reasonably specified by District (the "Project"). The Project shall be laid, constructed, installed, and backf,rlled in accordance with plans and specifications approved by District, and the top of said pipeline shall be no less than 36" below the surface ofthe surrounding ground and any proposed or existing roads, streets or alleys crossed thereby. All pipe shall be laid and installed in a good workmanlike manner. The cost of the Project is estimated at $186,619.00. (b) All precast concrete pipe, cast-in-place concrete pipe, and any other type of pipe to be installed shall meet the minimum requirements of the then most current "American Society of Testing and Materials" specifications, "The American Concrete Institute" specifications, andlor the specifications and requirements of District for the type and class of pipe agreed to be installed. (c) The construction and installation of the Project shall not interfere with the flow or distribution of water through the present facilities as required by District. No work on the Project shall begin without the written permission of District, which will not be unreasonably withheld. City and District agtee and acknowledge that the construction of the Project shall not occur during the normal irrigation season of District. The City shall commence the laying and installation of said pipeline and structures within a reasonable time after the execution of this Agreement, and to complete the installation and construction thereof not later than February 15,2015, or as otherwise agreed by the parties. City shall repair or replace, at its expense, any District facilities damaged as a result of the Project. (d) City agrees that the construction of the Project is subject to the District's review and approval, and that the Project must be accepted by District in writing as complying with this Agreement. District shall perform such review within a reasonable time of receipt of City's written notice to District of completion of the Project. Upon such written acceptance, the Project shall become and remain the property of District. The manner, method and time of conducting and discharging water through the Project shall be in the sole and absolute control of District. (e) City shall cause its contractor(s) to repair any defects inthe Project caused by defective parts or workmanship for a period of one (1) year after the acceptance thereof by District, and to pay all costs of such repairs. City shall cause its contractor(s) to furnish a surety bond guaranteeing performance of any required repairs during such one-year period, in an amount equal to fifteen percent (I5%) of the Project contract price. In the event City's contractor(s) fails to repair or replace arry part of the Project during such one (1) year period, District shall have the right, but shall not be obligated to, make any such repairs or replacements that it deems reasonably necessary which is caused by a defect in parts or workmanship, and City shall repay District the cost of any such repairs or replacement with interest at the rate of ten percent (10%) per annum. (Ð Upon District's acceptance of the relocated Pipeline, District agrees to execute a quitclaim deed to City of any interest that District holds in the Property other than the interests described in this Agreement 2013-D118-J 1676-05 4. Indemnit)'. (a) City shall indemnifr, hold harmless and defend District and each of its directors, officers, employees and authorized volunteers from any and all loss, liability, frnes, 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 District, City or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen from the negligent or intentional acts, omissions or willful misconduct of City or any of its officers, officials, employees, agents or authorized volunteers in its use of the Easement. (b) District shall indemnifu, hold harmless and defend City and each of its offrcers, officials, employees, agents and authorized volunteers from any and all loss, liabilþ, 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 the City, District, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses) arising or alleged to have arisen from the negligent or intentional acts, omissions or willful misconduct of District or any of its directors, officers, employees, agents or authorized volunteers in its ownership, maintenance and use of the Easement. (c) In the event of concurrent negligence on the part of City or any of its officers, officials, employees, agents or authoized volunteers, and District or any of its directors, ofhcers, 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, forfeitures, costs and damages shall be apportioned under the State of California's theory of comparative negligence as presently established or as may be modified hereafter. 5. Environmental Compliance. (a) The obligations of the parties under this Agreement are expressly conditioned upon (i) compliance with the California Environmental Quality Act ("CEQA") and other applicable environmental laws with respect to the actions contemplated by this Agreement and (ii) the receipt of all necessary governmental consents for those actions. Each party shall promptly prepare all appropriate environmental documents for it to undertake the actions contemplated in this Agreement. The City shall be the lead agency under CEQA for purposes of this Agreement and shall pay or reimburse the District for all costs incurred by the District for CEQA compliance in connection with this Agreement. The parties shall cooperate to diligently complete all environmental review required in order to implement this Agreement, and shall use reasonable efforts to reduce any overlap in analyzing, mitigating, or studying environmental impacts associated with the actions proposed in this Agreement. (b) Notwithstanding any other provision of this Agreement, no action shall be taken to effect the matters contemplated by this Agreement, and no other action shall be taken that commits any material resources of either party, until all required 20t3-Dr 18-J1676-05 environmental review is completed and all parties have independently made all findings required by CEQA. If, upon completion of such environmental review, aparty finds one or more significant, unmitigated environmental impacts resulting from the actions contemplated by this Agreement and cannot make a finding that the benefits of the proposed project outweigh the impact or impacts, or that the impacts can be mitigated to a level below significance, then this Agreement shall terminate without further obligation or liability of any party. If, upon completion of such environmental review, a party finds one or more significant environmental impacts and further finds that all such impacts can be feasibly mitigated or avoided by undertaking specihc mitigation measures andlor alternatives (based upon the analysis in the environmental documents), including without limitation amendment of this Agreement, then such mitigation measures and/or alternatives shall be undertaken. Each party shall cooperate in good faith to implement such mitigation measures to the extent they are within such party's reasonable control, although the District shall not be responsible for funding any mitigation measure and neither party shall be required to enter into an amendment of this Agreement or take any other action to mitigate an impact that is objectionable to such party. Neither the execution of this Agreement, nor any preliminary steps taken to implement this Agreement, shall be taken into account in determining whether mitigating or avoiding any significant impact is feasible. 6. Specific Performance. City agrees that District will not have an adequate remedy at law if this Agreement is not performed in accordance with its terms, and that any damages available atlaw for breach of this Agreement would not be an adequate remedy. Therefore, City's obligations under this Agreement are enforceable by a decree of specific performance, and appropriate injunctive relief may be applied for and granted in connection therewith. These remedies and all other remedies provided for in this Agreement are cumulative and not exclusive and are in addition to any other remedies that District may have under this Agreement. 7 . 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. 8. 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. 9. Waiver. V/aiver 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. 62013-D118-J1676-0s 10. 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. 11. 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. 12. Interpretation. It is agreed and acknowledged by the parties that this Agreement has been arrived at through negotiation, andthat each party has had a full and fair opportunþ to revise the terms of this Agreement. Consequently, the normal rule of construction that arry ambiguities are to be resolved against the drafting party shall not apply in construing or interpreting this Agreement. 13. 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 areasonable sum for its attorneys', paralegals', accountants', and other professional fees and costs incurred in connection with such action or proceeding. 14. 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 of subrogation or action over and against any party to this Agreement. 15. Survival. Each of the terms, provisions, representations, waranties, and covenants of the parties shall be continuous and shall survive the consummation of the transactions contemplated in this Agreement. 16. 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 given by first class mail, registered or certified, postage-prepaid, and properly addressed as follows: To District:Fresno Inigation District 2907 South Maple Fresno, Cé^93725-2218 Attn: General Manager 2013-Dl l8-J1676-05 To City: City of Fresno Attn: Director of Public V/orks 2600 Fresno Street Fresno, CA9372l A party may change its address for notices by providing notice to the other parties as provided above. ISTGNATURES ON FOLLOWTNG PAGE] 2013-D118-J1676-05 IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date first above written. ..DISTRICT" THE FRESNO IRzuGATION DISTRICT, A California irrigation district ..CITY" THE CITY OF FRESNO, a municipal corporation By Patrick V/iemiller Public V/orks Director APPROVED AS TO FORM: DOUGLAS T. SLOAN, City Attorney ATTEST: YVONNE SPENCE, CMC City Clerk 2013-Dt 1 8-J 1676-05 STATE OF CALIFORNIA COUNTY OF rRes ruo On rr-.rUÉ. ?-l¿2-oLì , before me, JAb/\E 5 A CALD\NEL|-,Notary Public, personally appeared PÈTT-ILI,< VU IE } ILLE R- subscribed to the within instrument and acknowledged to me that heAheÆhcy executed the same I certify under PENALTY OF PERJURY the foregoing paragraph is true and correct WITNESS my hand and offrcial seal. Signature STATE OF CALIFORNIA COUNTY OF On before me,Notary Public, personally appeared 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/herltheir 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 foregoiîgparagraph is true and correct WITNESS my hand and offrcial seal. Signature ) ) ) ) ) ) State of California that Comnl¡¡ton, lg2gfig totuy ¡¡¡ . Criltorntr Fnmo Coünty NOT'ARY SEAL CI-,AI{TFICATION I certi$i under penalty of perjury that the "NotarJ/ Seal" on the document to which this statement is attached reads as follows: Name ofNotary: Commission Number: Date commission expires: Govt. Code, Sec" 27361"7 State and County of Commission: (Firm name, if any) STATE OF CALIFORNIA COUNTY OF On personally ) ) ) before me, S , Notary Public, who proved to me on the of satisfactory evidence to de the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that ey executed the same 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 foregoingparagraph is true and correct hand and official seal. Signature STATE OF CALIFORNIA COUNTY OF On , before me, , Notary Public, personally appeared 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 hislher/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 PEzuURY under the laws of the State of California that the foregoingparagraph is true and correct WITNESS my hand and official seal. Signature ) ) ) rüo¡ftÈI.Gfn|trüGrlt The subject properties are the portíon of the northeast quarter of Section 3Q Townshíp 12 South, Range 20 East, Mount Diablo Base and Merídian, according to the Official United States Government Township Plat thereof, in the County of Fresno, State of California, more particularly with the following APN: 1,. APN 404-481-l_8 2. APN 404-481_-195 3. APN 404-48L-205 4. APN 404-072-1L5 5. APN 404-072-105 EXHIBIT'B' SHEET 1 OF 2 glù- Itr{EOFPârcELz ı OFPArcÉ.2 N l* It'z lll193 tgg ÍrS 3 glE: 19- ,ËE tH9t2t: in ffi tNucATFs MtO BEDFnøteO A'N.10{ o+atrs A¡û140¡t{rr-0€ Nç5t36'É TREFOO{TOF ug!!xr+¡E PROFOSEDSTREETE SETÞtr N4'þ74rW 27, :- - - 1 - - 3ıFæt5ii47 -rããz- - - - - - Iq rc,l,srq ttw-Ë Nsrßrse¡:tö- RET.&RÉV. pt{F fzn PLAT 1162 PARCEL TO BE DEIIICATED TO THE FRESNO IRRIGATI0|¡ ÍXSTRICT AS ATT EASEIIENT FOR IRRIGATIo{ PIPELIìIE PURPOSES ü.ü-L a1Dt ttà DArE $N'4att EXHIBIT'B' SHEET 2OF 2 APN 4f)4-072-1 0S (ponion) lrigâti,on pipeline easement the County of Fresno, State of Cql[fomla, more partlcubrly described as follons: COMMENCING at the southeest comer d sald parcel 4 ürence South 99"51,96. West, along tha south line of sald Parcel 2, a dblanoe of 3420 Þet to tha TRUE POll,lT OF BEGINNING of this descdptlon; thence l{orth lol2'14'w6€t, a d¡stanca of 114.99 Þet ütence North 0o0f129" Wost paralþl nih and 36.50 ßd uÞst of üe east the d said Parcel 2, a dlstanæ of 1¿15.55 feet to the bqinning of a tengent t¡r¡n e ooncave westerly and having a radh¡s of 10.æ bet thence norüredy, along thê arc of said orye, ürrcugh a central angle of 18"11'421, anì anc distenæ of 3.18 fuet b the beglnning d a rwrerce curve concava easbrly and arc of sald curvs, lhlottgh a thenoe l,torth Oo(Xl'2S We¡t u,eÉû of ths east line of sald wsst, a distanoe of27.67 feet; ürence soutñ Sgo4grlı'west, paralblwüür and gz.æ feet souúr d the noffr llne of said Parcel2, a dlshnce of 9.01 feet thence souür 0o11'55" Easl, a d¡stanoe of l5.ffifeeÈ hence Noilh ggo4g,Gi. Easû, parellelrfúm ard 47.@ feet sot¡üt of üre norür line of seH Pa¡æt2, a distance of 3-æ bet thence South 43e31'35'East, a distanæ d 15.74feeü thence Souür 0T92f EasÇ panllelwiür ard 53.50 feet west of the €ast fine d eaid Pa¡oel 2, a dlstance of Z5.SO tebt m Ure begfnning of a tangent curue concay€ easþrly and havftrg e ¡adlus of ¡15.00 feet üþnoe southedy, almg the arc d aaË q¡n¡o, ürrougtr a oentralangþ of 17"(E'4d, an anu dFtance of 13.47 feet; thenæ South OqfXlzg' East, non-tangÞnt to last sald cunp and parallel wilh a¡rd 51.50 bet $r€Et of the east line d 6aH Parcel 2, a distalrce ú lffi.gz feet; herce South 1o12'14' Eesú, a dktrnce sI 114.70feEt to the south Ine of said Parcel 2; thence Noilh 8905136' East, along eaid souür line, a dieûenca oÍ 15.00 foet to the TRUE POINT OF BEGINNING. Contains an arsa of 5,711 sqrale feet, more or less. HNFll?gr D:\DATA\Wl[o¡v - Herdon to N of Shephadt{OHXe.lOS FlD.doo(