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HomeMy WebLinkAboutGreen Valley Recycling a dba of Kochergen Farms Composting Inc Indemnification Agreement 1.18.2023 INDEMNIFICATION AGREEMENT THIS AGREEMENT is entered into and effective on _ O 9 -X23 , by and between the CITY OF FRESNO, a municipal corporation (City), and All Valley Environmental, Inc., Kochergen Farms Composting, Inc., dba Green Valley Recycling (Applicant). RECITALS WHEREAS, Applicant has applied to City for a Land Use Approval for the Subject Property, described on the attached Legal Description (Exhibit A) and with the addresses of 2912 South Cedar Avenue, Fresno, CA 93725, in accordance with Conditional Use Permit Application No. P18-01457 and Conditional Use Permit Major Revised Exhibit Application No. P22-04195; and, WHEREAS, litigation challenging the granting or issuance of land use approvals by governmental bodies is proliferating, and such litigation exposes City to potential liability for damages, costs, and attorney's fees; and, WHEREAS, in such litigation, the person or entity receiving land use approvals is designated as a real party in interest and is the party that primarily and directly benefits from the granting or issuance of the land use approvals; and, WHEREAS, the City's Director of Planning and Development, Fresno City Planning Commission and Fresno City Council are objective decision-making bodies, and therefore have no special interest in the approval or denial of land use applications or the outcome of litigation arising from such grant or denial, except as to those which promote public policy; and, WHEREAS, City incurs great expense in the active defense of such litigation and, if unsuccessful, may also be required to pay the prevailing party's attorney's fees and costs; and, WHEREAS, fairness and sound fiscal policy require that the person or entity receiving the benefits of a land use approval should also bear the burden of the liability for potential injuries and the expense of such litigation and claims: and, WHEREAS, Applicant and City mutually desire to enter into this Indemnification Agreement, by which Applicant shall indemnify, (at City's request) defend, save and hold City harmless, in order that City shall bear no fiscal or financial burden whatsoever resulting from any litigation challenging the City's grant or issuance of land use approvals to Applicant, subject to the provisions of Section 2, below. 1. DEFINITIONS. (a) "Applicant" means All Valley Environmental, Inc., Kochergen Farms Composting, Inc., dba Green Valley Recycling, and its heirs, assigns, or successors in interest. (b) "Land Use Approval", for purposes of this Agreement, shall mean any benefits arising from any of the following: the grant of [Conditional Use Permit Application No. P18-01457 and Conditional Use Permit Major Revised Exhibit Application No. P22-04195, any approval of conditional use or development permits, any approval of building and demolition permits by the Historic Preservation Commission, and any document prepared pursuant to the California Environmental Quality Act (CEQA) or other lawthat isapproved in conjunction with any of these entitlements and permits. Land Use Approval does not include a ministerial permit. (c) "City" shall mean the City of Fresno, a municipal corporation. (d) "Project" shall mean the use of the land authorized by the Land Use Approval. 2. HOLD HARMLESS AND INDEMNIFICATION RELATED TO LAND USE APPROVAL. To the furthest extent allowed by law, Applicant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether statutory, in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City in connection with any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses) arising from, resulting from, or in connection with any City action in granting, issuing or approving the Land Use Approval, including, but not limited to claims alleging violations of the California Environmental Quality Act or the Housing Crisis Act of 2019. Applicant's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents, or volunteers are actively or passively negligent, but shall not apply to any indemnification, loss, liability, fines, penalties forfeitures, costs or damages caused solely by the gross negligence or willful misconduct of the City or any of its officers, officials, employees, agents, or volunteers. 3. INSURANCE REQUIREMENTS (a) Throughout the life of this Agreement, Applicant shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by City's Risk Manager or designee at any time and in its discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Applicant fail to maintain any required insurance in full force and effect, all terms under this Agreement shall be discontinued immediately, and all payments due or that become due to Applicant shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Applicant of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Applicant shall not be deemed to release or diminish the liability of Applicant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Applicant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Applicant, vendors, suppliers, invitees, contractors, sub-contractors, consultants, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of Insurance." 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. MINIMUM LIMITS OF INSURANCE Applicant shall procure and maintain for the duration of the agreement, insurance with limits of liability not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1 COMMERCIAL GENERAL LIABILITY (i) $2,000,000 per occurrence for bodily injury and property damage; (ii) $2,000,000 per occurrence for personal and advertising injury; (iii) $4,000,000 aggregate for products and completed operations; and, (iv) $4,000,000 general aggregate applying separately to the work performed under the Agreement. 2_ COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation Insurance as required by the State of California with statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. UMBRELLA OR EXCESS INSURANCE In the event Applicant purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Applicant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Applicant shall also be responsible for payment of any self-insured retentions. Any self-insured retentions must be declared on the Certificate of Insurance, and approved by, the City's Risk Manager or designee. At the option of the City's Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Applicant shall provide a financial guarantee, satisfactory to City's Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar days'written notice has been given to City, except ten days for nonpayment of premium. Applicant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Applicant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Applicant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees, and volunteers as an additional insured. Applicant shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the Applicants' insurance shall be primary to and require no contribution from the City. The Commercial General policy is required to include primary and non-contributory coverage in favor of the City for both the ongoing and completed operations coverage. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. If Applicant maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Applicant. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, Applicant's insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, agents, employees, and volunteers shall be excess of the Applicant's insurance and shall not contribute with it. (vii) The Workers' Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers. (viii) The Commercial General and Automobile Liability insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers. PROVIDING OF DOCUMENTS - Applicant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be received and approved by the City's Risk Manager or designee prior to City's execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Applicant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All sub-applicants working under the direction of Applicant shall also be required to provide all documents noted herein. CLAIMS-MADE POLICIES - If any coverage required is written on a claims-made coverage form: (i) The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Applicant. (ii) Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work or termination of the Agreement, whichever first occurs. (iii) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement, or work commencement date, Applicant must purchase "extended reporting" period coverage for a minimum of five years after completion of the work or termination of the Agreement, whichever first occu rs. (iv) A copy of the claims reporting requirements must be submitted to City for review. (v) These requirements shall survive expiration or termination of the Agreement. 4. NOTIFICATIONS AND COOPERATION BY CITY. City shall notify Applicant within a reasonable period of time of its receipt of any demand, claim, action, proceeding, or litigation in which City is to be indemnified and held harmless by Applicant. If City requests that Applicant defend City, it shall notify Applicant in writing within a reasonable period of time of its receipt of any such demand, claim, action, proceeding, or litigation and City shall cooperate fully in such defense. City shall have the right to select the attorney or attorneys who will defend the City. In selecting defense counsel, City should consider the prevailing local rates for attorneys with the requisite skills. City should further consider whether a joint defense arrangement utilizing counsel for Applicant will suffice in lieu of separate counsel. City reserves its rights at all times to retain separate defense counsel subject to the provisions of this paragraph, and Applicant agrees to accept such selection. City and Applicant shall at all times cooperate with respect to the retention of counsel. Applicant further agrees to be fully responsible for any and all costs and attorney's fees generated by said attorney(s) in the defense of City in any claim, demand, action, proceeding, or litigation arising out of the Project. 5. CITY'S PARTICIPATING IN DEFENSE. Nothing contained herein shall prohibit City, in its sole discretion, from participating in the defense of any demand, claim, action, proceeding, or litigation over and above representation by outside counsel, or from participating in the defense of any demand, claim, action, proceeding, or litigation. If City elects to also defend, it shall do so in good faith. In no event shall City's participation in the defense of any demand claim, action, proceeding, or litigation affect the obligations imposed upon Applicant in section 2 of this Agreement. 6. REIMBURSEMENT OF CITY'S COSTS RE: ADMINISTRATIVE RECORD. Without limiting the City's right to recover its costs from Applicant under paragraph 2 herein above, Applicant agrees to reimburse the City for its actual cost incurred, including, but not limited to, City staff and attorney time expended for certifying and/or preparing the administrative record in connection with any proceedings related to the subject matter of this Indemnification Agreement. Applicant and City agree to work cooperatively with respect to preparation of the administrative record, and Applicant shall ensure that City is fully reimbursed for the costs of preparation before receiving such administrative record. To the extent administrative record reimbursement and related costs are recovered in any litigation by the City, Applicant shall be reimbursed to the extent any such recovery is made as cost recovery items. 7. BINDING OBLIGATION. Applicant hereby agrees that this Agreement shall be recorded in the office of the Recorder of the County of Fresno and the obligations thereunder shall run with and be appurtenant to and be a charge upon the land and be binding on Applicant's successor(s) in interest, heirs, transferee(s), and assign(s}. 8. COVENANT NOT TO SUE. (a) Applicant on behalf of itself, and its successors, and assigns, hereby fully releases City, its successors, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained, or may be sustained, as a result of the above-described Land Use Approval and covenants not to sue relating to such claims, excluding gross negligence orwillful misconduct of City,asset forth in Section 2,above. (b) Applicant acknowledges and agrees that this release applies to all claims that Applicant may have against City arising out of the above-described Land Use Approval for injuries, damages, or losses to Applicant's person and property, real or personal, whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent. (c) Applicant certifies that Applicant has read section 1542 of the Civil Code, set out below: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. (d) Applicant hereby waives application of section 1542 of the Civil Code. (e) Applicant understands and acknowledges that the significance and consequence of this waiver of section 1542 of the Civil Code is that even if Applicant should eventually suffer additional damages arising out of the above described Land Use Approval, Applicant will not be permitted to make any claim for those damages. Furthermore, Applicant acknowledges that Applicant intends these consequences even as to claims for damages that may exist as of the date of this release but which Applicant does not know exist, and which, if known, would materially affect Applicant's decision to execute this release, regardless of whether Applicant's lack of knowledge is the result of ignorance, oversight, error, negligence or any other cause. (fl Applicant warrants and represents that in executing this release, Applicant has relied on legal advice from the attorney of Applicant's choice that the terms of this release and its consequences have been completely read and explained to Applicant by that attorney, and that Applicant fully understands the terms of this release. (g) Applicant acknowledges and warrants that Applicant's execution of this release is free and voluntary. (h) This release pertains to a disputed claim and does not constitute an admission of liability by City for the above-described Land Use Approval. () The provisions of paragraph 10 herein below shall not apply to this covenant not to sue. 9. TERMINATION OF AGREEMENT. (a) This Indemnification Agreement may be terminated only upon the following conditions: (i) The parties agree to terminate this Indemnification Agreement by their express, mutual written consent; or (ii) The Applicant petitions the Fresno City Council to terminate this Indemnification Agreement by providing to the Council a written opinion of Applicant's legal counsel and the Fresno City Council, in its sole discretion, determines that termination of this Indemnification Agreement is in the best interest of the public and the City. It is understood and agreed that the City, in making such determination of whether to terminate this Indemnification Agreement, may reasonably rely upon said opinion of Applicant's legalcounsel. (b) If this Indemnification Agreement is terminated as provided above, the City shall execute a written release of Applicant's obligations under this Indemnification Agreement. It shall be Applicant's responsibility to record such document with the office of the Recorder of the County of Fresno. 10. ATTORNEY'S FEES. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. For the purposes of this agreement, "attorneys' fees" and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses, and all other expenses incurred by the prevailing party's attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation, whether or not otherwise recoverable as "attorneys' fees" or as "costs" under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys' fees. 11. SEVERABILITY. If any provision of this Agreement is determined to be invalid in a final judgment by a court of competent jurisdiction, each and every other provision hereof shall remain infull force and effect. 12. CONSTRUCTION OF CONTRACT. The parties hereby acknowledge that they and their respective counsel have cooperated in the drafting and preparation of this agreement, for which reason this agreement shall not be construed against any party as the drafter thereof. [Signatures follow on the next page.] IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY: APPLICANT: CITY OF FRESNO, All Valley Environmental, Inc., A California municipal corporation Kochergen Farms Composting, Inc., dba C�� Green Valley Recycling. By: Je n f Clark, AICP, Director By: N Pla ning and Development _ Department Name: N1`k2 J VDC�VI,eilr erl No signature of City Attorney required. Standard Document "DEV-S Land Use Title: Approval Indemnity (02-2022)" has been Parties authorized to sign on used without modification, as certified by behalf of applicant the undersi By: By. [R ph Kachadourian [Supervising Planner Name: Planning and Development Department Title: Parties authorized to sign on ATTEST: behalf of applicant TODD STERMER, CMC City Cler By_ �3 ScJ Pi[Ji°s tip Attachment: Exhibit A EXHIBIT A Legal Description Real property in the City of Fresno, County of Fresno, State of California, described as follows: PARCEL 1: AN IRREGULAR SHAPED PARCEL OF LAND, BEING A PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 20 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23; THENCE NORTH ALONG THE WEST LINE OF SAID QUARTER QUARTER 523.7 FEET, MORE OR LESS, TO THE NORTHEASTERLY LINE OF PROPERTY OF THE FRESNO IRRIGATION DISTRICT; THEN SOUTH 400 24 MIN. 30 SEC. EAST ALONG SAID NORTHEAST LINE 314.35 FEET TO THE TRUE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE EASTERLY ALONG THE ARC OF A CURVE, TANGENT TO LAST COURSE CONCAVE NORTHERLY AND HAVING A RADIUS OF 407.79 FEET THROUGH AN ANGLE OF 71° 03 MIN. 30 SEC. AN ARC DISTANCE OF 505.74 FEET; THENCE NORTH 68' 32 MIN. EAST, TANGENT TO SAID CURVE 65.27 FEET; THENCE EASTERLY ALONG THE ARC OF A CURVE, TANGENT TO LAST COURSE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 387.79 FEET, AN ARC DISTANCE OF 327.64 FEET; THENCE COMPOUNDING TO A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 331.76 FEET THROUGH AN ANGLE OF 160 49 MIN. 30 SEC. AN ARC DISTANCE OF 97.42 FEET TO A POINT OF INTERSECTION WITH A LINE THAT IS 34 FEET SOUTHWESTERLY FROM THE SOUTHWESTERLY LINE OF THE STATE HIGHWAY; THENCE SOUTHEASTERLY ALONG SAID HIGHWAY LINE BEING A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 2394 FEET A DISTANCE OF 200 FEET; MORE OR LESS, TO THE SOUTHERLY LINE OF SAID QUARTER QUARTER; THENCE SOUTH 89' 59 MIN. WEST ALONG SAID SOUTH LINE 793.4 FEET, MORE OR LESS, TO SAID NORTHEAST LINE OF THE FRESNO IRRIGATION DISTRICT PROPERTY; THENCE NORTH 40' 24 MIN. 30 SEC. WEST ALONG SAID NORTHEAST LINE 372.5 FEET TO SAID TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF CONVEYED TO THE STATE OF CALIFORNIA, BY GRANT DEED RECORDED JANUARY 22, 2016, INSTRUMENT NO. 2016-7476, OFFICIAL RECORDS. PARCEL 2: THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 20 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, WHICH LIES NORTH AND EAST OF A STRIP OF LAND 82-1/2 FEET IN WIDTH, CONVEYED TO THE FRESNO IRRIGATION DISTRICT, ENTIRELY OVER AND ACROSS SAID SOUTHEAST QUARTER OF SAID SECTION 23, WHICH STRIP OF LAND IS DESCRIBED AS FOLLOWS,BEGINNING AT A POINT IN THE NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23, FROM WHICH THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23, BEARS WEST 444.6 FEET; THENCE SOUTH 400 20 MIN. EAST 1352.5 FEET TO A POINT IN THE EAST LINE OF SAID SECTION 23 FROM WHICH THE SOUTHEAST QUARTER OF SAID SECTION BEARS SOUTH 289 FEET; THENCE SOUTH ALONG THE EAST LINE OF SAID SECTION 23, 127.5 FEET; THENCE NORTH 40" 20 MIN. WEST 1519.5 FEET TO A POINT IN THE NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23 FROM WHICH THE NORTHWEST CORNER OF SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23 BEARS WEST 336.4 FEET; THENCE EAST ALONG SAID NORTH LINE 108.2 FEET TO THE POINT OF. BEGINNING: EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23, WITH THE EAST LINE OF SAID SECTION 23, SAID INTERSECTION BEARING NORTH 00 05 MIN. 44 SEC. WEST 1320.73 FEET FROM THE SOUTHEAST CORNER OF SAID SECTION 23, AND ALSO BEARING SOUTH 00 05 MIN. 44 SEC. EAST 167.54 FEET FROM ENGINEER'S STATION 301+52.89 OF THE DEPARTMENT OF PUBLIC WORKS SURVEY BETWEEN CALWA OVERPASS AND FRESNO ROAD VI- FRE-4-13; THENCE (1) SOUTH 0° 05 MIN. 44 SEC. EAST 44.45 FEET ALONG SAID EAST LINE TO A LINE WHICH IS PARALLEL WITH AND 190 FEET SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD COMPANY'S RIGHT OF WAY 100 FEET WIDE; THENCE (2) NORTH 410 28 MIN. WEST 58.98 FEET ALONG SAID PARALLEL LINE; THENCE (3) NORTHWESTERLY ALONG A TANGENT CURVE CONCAVE TO THE SOUTHWEST WITH A RADIUS OF 2428 FEET AN ARC DISTANCE OF 0.23 OF A FOOT TO SAID NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23; THENCE (4) NORTH 89052 MIN. 33 SEC. EAST, 39.13 FEET ALONG SAID NORTH LINE TO THE POINT OF BEGINNING; ALSO EXCEPTING THEREFROM THE FOLLOWING: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 23 WITH A LINE WHICH IS PARALLEL WITH AND 224 FEET SOUTHWESTERLY, MEASURED AT RIGHT ANGLES FROM THE SOUTHWESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD COMPANY'S RIGHT OF WAY 100 FEET WIDE, SAID INTERSECTION BEARING NORTH 00 05 MIN. 44 SEC. WEST 1224.84 FEET FROM THE SOUTHEAST CORNER OF SAID SECTION 23 AND ALSO BEARING SOUTH 00 05 MIN 44 SEC. EAST 263.43 FEET FROM ENGINEERS STATION 301+52.89 OF DEPARTMENT OF PUBLIC WORKS' SURVEY BETWEEN CALWA OVERPASS AND FRESNO, ROAD VI- FRE-4-B; THENCE (1) NORTH 00 05 MIN. 44 SEC. WEST 51.44 FEET ALONG SAID EAST LINE TO A LINE WHICH IS PARALLEL WITH AND DISTANT 190 FEET SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM SAID SOUTHWESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD COMPANY'S RIGHT OF WAY 100 FEET WIDE; THENCE (2) NORTH 41° 28 MIN. WEST 58.98 FEET ALONG LAST SAID PARALLEL LINE; THENCE (3) NORTHWESTERLY ALONG A TANGENT CURVE CONCAVE TO THE SOUTHWEST WITH A RADIUS OF 2428 FEET, THROUGH AN ANGLE OF 00 00 MIN. 20 SEC. A DISTANCE OF 0.23 FEET TO A POINT IN THE NORTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23; THENCE (4) SOUTH 89' 52 MIN. 33 SEC. WEST 45.54 FEET ALONG SAID NORTH LINE; THENCE (5) SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE SOUTHWEST WITH A RADIUS OF 2394 FEET THROUGH AN ANGLE OF 00 43' 32" A DISTANCE OF 30.32 FEET TO A POINT OF TANGENCY WITH FIRST PARALLEL LINE (A RADIAL LINE OF LAST SAID CURVE AT ITS POINT OF INTERSECTION WITH SAID NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 23 BEARS NORTH 470 48 MIN. 28 SEC. EAST); THENCE,(6) SOUTH 41° 28 MIN, EAST 97.58 FEET ALONG FIRST SAID PARALLEL LINE TO THE POINT OF BEGINNING; ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 23 AND THE NORTHEASTERLY LINE THAT 82-1/2 FOOT STRIP OF LAND CONVEYED TO THE FRESNO IRRIGATION DISTRICT BY DEED RECORDED NOVEMBER 14, 1932, IN BOOK 1241 PAGE 401 OF OFFICIAL RECORDS, DOCUMENT NO. 20699; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION 150 FEET TO A POINT; THENCE WEST AND PARALLEL TO THE NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23, 160 FEET, MORE OR LESS, TO A POINT OF THE NORTHEASTERLY LINE OF SAID 82-1/2 FOOT STRIP OF LAND, THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY LINE TO THE POINT OF BEGINNING. AND ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 23 AND THE NORTHEASTERLY LINE OF THAT CERTAIN 82-1/2 FOOT STRIP OF LAND CONVEYED TO THE FRESNO IRRIGATION DISTRICT BY DEED DATED NOVEMBER 4, 1932, RECORDED NOVEMBER 14, 1932 IN BOOK 1241 PAGE 401 OF OFFICIAL RECORDS, DOCUMENT NO. 20699; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION 23, A DISTANCE OF 150 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING THE EAST LINE OF SAID SECTION 23, A DISTANCE OF 160 FEET, MORE OR LESS, TO A POINT ON THE NORTHEASTERLY LINE OF SAID 82- 112 FOOT STRIP OF LAND, A DISTANCE OF 510 FEET, MORE OR LESS; THENCE LEAVING SAID NORTHEASTERLY LINE EASTERLY PARALLEL WITH THE NORTH LINE OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 23, TO A POINT ON THE EAST LINE OF SAID SECTION 23; THENCE SOUTH ALONG THE EAST LINE OF SAID SECTION 23; THENCE SOUTH ALONG THE EAST LINE OF SAID SECTION 23, A DISTANCE OF 390.00 FEET TO THE TRUE POINT OF BEGINNING. SAID LAND IS ALSO DESCRIBED AS FOLLOWS: ALL THAT CERTAIN REAL PROPERTY BEING A PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER AND A PORTION OF THE SOUTHEAST QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 20 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION23; THENCE NORTH ALONG THE WEST LINE OF SAID QUARTER NORTH 000 01' 06" WEST 521.86 FEET, MORE OR LESS, TO THE NORTHEASTERLY LINE OF PROPERTY OF THE FRESNO IRRIGATION DISTRICT; THENCE SOUTH 40" 29' 09" EAST ALONG SAID NORTHEAST LINE 312.12 FEET TO THE TRUE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE EASTERLY ALONG THE ARC OF A CURVE, TANGENT TO LAST COURSE CONCAVE NORTHERLY AND HAVING A RADIUS OF 407.85 FEET, THROUGH AN ANGLE OF 710 03' 30" AN ARC DISTANCE OF 505.82 FEET; THENCE NORTH 680 17' 14" EAST, TANGENT TO SAID CURVE 65.27 FEET; THENCE EASTERLY ALONG THE ARC OF A CURVE, TANGENT TO THE LAST COURSE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 387.85 FEET, THROUGH AN ANGLE OF 480 24' 31" , AN ARC DISTANCE OF 327.69 FEET; THENCE COMPOUNDING TO A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 331.81 FEETTHROUGH AN ANGLE OF 160 49' 30"AN ARC DISTANCE OF 97.44 FEET TO A POINT OF INTERSECTION WITH A LINE THAT IS 34 FEET SOUTHWESTERLY FROM THE SOUTHWESTERLY LINE OF THE STATE HIGHWAY; THENCE SOUTHEASTERLY ALONG SAID HIGHWAY LINE BEING A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 2394.36 FEET, THROUGH AN ANGLE OF 040 47' 39"A DISTANCE OF 200.34 FEET; THENCE CONTINUING ALONG SAID LINE, SOUTH 410 28' 19" EAST 52.20 FEET TO THE WEST RIGHT OF WAY LINE OF SOUTH CEDAR AVENUE, BEING 60.00 FEET IN WIDTH; THENCE ALONG SAID WEST LINE SOUTH 000 07' 40" EAST 430.74 FEET TO THE NORTH LINE OF PARCEL A, AS SAID PARCEL IS SHOWN UPON THAT CERTAIN MAP ENTITLED "PARCEL MAP NO. 97- 01, RECORDED IN BOOK 58 OF PARCEL MAPS AT PAGES 2 AND 3, FRESNO COUNTY RECORDS; THENCE ALONG SAID NORTH LINE, SOUTH 890 42' 46" WEST 429.88 FEET TO THE SAID NORTHEASTERLY LINE OF LANDS OF THE FRESNO IRRIGATION DISTRICT; THENCE ALONG SAID LINE, NORTH 400 29' 52" WEST 647.29 FEET AND NORTH 400 33' 54" WEST 372.43 FEET TO THE SAID POINT OF BEGINNING OF THIS DESCRIPTION. APN: 487-140-46 (Affect this & other property)