HomeMy WebLinkAboutAgreement A-21-027 with Alta Irrigation District.pdf1
RECORDING REQUESTED BY:
COUNTY OF FRESNO
No Fee – Govt. Code
Sections 6103 and 27383
When Recorded Mail Document To:
County of Fresno, Department of Public
Works and Planning Design Division
(Real Property)
2220 Tulare Street, 6th Floor
Fresno, CA 93721
SPACE ABOVE THIS LINE FOR RECORDER’S USE
The undersigned grantor(s) declare(s):
DOCUMENTARY TRANSFER TAX IS $0
AGREEMENT FOR COMMON USE OF EASEMENTS
THIS AGREEMENT FOR COMMON USE OF EASEMENTS (this “Agreement”) is
made and entered into as of this ___ day of ____________, 2021 (the “Effective Date”), by and
between ALTA IRRIGATION DISTRICT, a California Irrigation District (“District”), and the
COUNTY OF FRESNO, a political subdivision of the State of California (“County”). The District
and the County are sometimes collectively referred in this Agreement as the “Parties” or singularly
as a “Party” or by their individual names.
RECITALS
A.WHEREAS, the District has prior rights and was formed on August 14, 1888, for
the purpose of delivering surface water from the Kings River to landowners in the Counties of
Fresno, Kings and Tulare; and
B.WHEREAS, the District is a California Irrigation District organized and existing
under and by virtue of the Irrigation District Law, Division 11, of the California Water Code; and
C.WHEREAS, the District holds easements and prescriptive right-of-way interests
pursuant to Water Code section 22438 for access to and conveyance of water over, under, across,
and through, and maintenance of, certain real property known as Travers Creek in Fresno
County, California (the “District Easements”); and
D. WHEREAS, the County has or will acquire right-of-way interests in certain real
property within the District’s boundaries located in Fresno County, California and more
particularly described in Exhibit “A” which is attached hereto and incorporated herein by this
reference (the “Property”), in order to replace the Travers Creek Bridge on Lincoln Avenue, a
public roadway in the County of Fresno, with a new two-lane concrete box culvert bridge (the
“Project”); and
E.WHEREAS, the County has acquired new easements for all portions of the
Property except Fresno County APN 373-310-34. These easements are set forth in the following
26th January
Agreement No. 21-027
20-1515
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instruments recorded in the Official Records of Fresno County: (i) Grant of Easement dated
December 19, 2018, recorded February 19, 2019, as Document No. 2019-0016174; (ii) Grant of
Easement dated May 29, 2018, recorded February 21, 2019, as Document No. 2019-0017436;
and (iii) Grant of Easement dated August 20, 2018, recorded October 24, 2018, as Document No.
2018-0129486.
F.WHEREAS, Fresno County APN 373-310-34 is currently the subject of eminent
domain litigation (County of Fresno v. Patricia A. Rogers, et al., Fresno Superior Court Case No.
20CECG01833) (the “Eminent Domain Case”). Following final disposition of the Eminent
Domain Case, the County will have right-of-way easements necessary for the Project as depicted
in Exhibit “A” hereto (together referred as the "County Easements"); and
G.WHEREAS, the County Easements overlap the existing District Easements,
which overlapping portions are more specifically described as that area shown on the depiction
attached hereto as Exhibit “B”, being hereby designated as the “Area of Common Use”; and
H. WHEREAS, the District and County wish to establish certain conditions under
which the Area of Common Use shall be used by the Parties.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
in this Agreement, the Parties hereby agree as follows:
1.Recording of Agreement. The Parties agree that upon acquisition of sufficient
interest in Fresno County APN 373-310-34 as contemplated in Recital F above (whether by court
order or settlement) County shall cause this Agreement to be recorded in the Official Records of
Fresno County .
2.District’s Consent. District hereby consents to the use by County of the Area of
Common Use for purposes of maintaining and operating the Project. County’s use of the Area of
Common Use shall be subject to District’s right to fully use the Area of Common Use for all of
District’s purposes, and to the terms and conditions herein contained. Parties acknowledge that
District has a prior right in the Area of Common Use and District does not by this Agreement
subordinate any rights it may have in the Area of Common Use to any use thereof by County.
County acknowledges that by District’s consent to County’s use of the Area of Common Use,
District is making no representation or warranty regarding the existence or non-existence of any
third parties claiming a right, title, or interest in the Area of Common Use.
3.County’s Consent. County hereby consents to the use by District of the Area of
Common Use for exercise of the District Easements, including, but not limited to, ingress and
egress to Travers Creek. County does not by this Agreement subordinate any rights it may have
in the Area of Common Use to any use County shall make of the land. More specifically, the
District consent to the County’s use of the Area of Common Use for the Project.
4.The Project. County shall, at its own cost and expense, locate, construct,
operate, and maintain, the Project in the Area of Common Use in such a manner and using such
material as may be required so that the Project will not at any time damage, unreasonably impair,
or interfere with the use by District of the District Easements. The County shall coordinate any
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construction or maintenance of the Project so that it does not interfere with the District’s water
delivery, operations, and maintenance schedules.
5. Common Use. Except as expressly set forth herein, this Agreement shall not in
any way alter, modify, or terminate the District Easements in the Area of Common Use. Both
District and County shall use the Area of Common Use in such a manner as not to unreasonably
interfere with the rights of one another and nothing herein shall be construed as a release or waiver
of any claim for compensation or damages that District or County may now have, or may hereafter
acquire, resulting from the construction or alteration of existing facilities or the construction or
alteration of additional facilities by either District or County, which causes damage to or
unreasonably interferes with the use of the Area of Common Use by the other Party. Each Party
shall construct, operate, or maintain their improvements in the Area of Common Use in a manner
that does not diminish or restrict the ability of the other Party to use the Area of Common Use for
the purpose identified in this Agreement. Neither Party shall have the right to increase the extent
or scope of their use of the Area of Common Use as identified in this Agreement, without the
express written authorization of the other Party.
6. Responsibilities of the Parties.
(a) Except as described above, District and County shall be responsible for the
maintenance, repair, alteration, improvement, or relocation of their respective facilities within
the Area of Common Use.
(b) Nothing in this Agreement shall relieve the Parties of any responsibility
toward the other for damage to the other’s property located outside of the Area of Common Use.
7. No Grant of Rights. The Parties acknowledge that this Agreement only governs
the Area of Common Use and does not grant any rights in the underlying real property, or affect
the rights of any third party to such property.
8. Indemnification.
(a) District shall indemnify, hold harmless and defend County and each of its
officers, officials, employees, agents, and 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 County,
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 directly or
indirectly from use of the District Easements in the Area of Common Use, except for the
intentional acts or omissions, or willful misconduct of County or any of its officers, officials,
employees, agents, and volunteers in performance of this Agreement; provided nothing herein
shall constitute a waiver by District of governmental immunities including California
Government Code sections 810 et seq.
(b) County shall indemnify, hold harmless and defend District and each of its
officers, officials, employees, agents, and 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 District,
County or any other person, and from any and all claims, demands, and actions in law or equity
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(including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or
indirectly from the use of the County Easements in the Area of Common Use, including the
Project, except for the intentional acts or omissions, or willful misconduct of District or any of its
officers, officials, employees, agents, and volunteers in the performance of this Agreement;
provided nothing herein shall constitute a waiver by County of governmental immunities
including California Government Code sections 810 et seq.
9. Insurance. It is understood and agreed that County and District will maintain
insurance policies or self-insurance programs to fund their respective liabilities. Evidence of
Insurance, e.g., Certificates of Insurance or other similar documentation, shall not be required of
either Party under this Agreement.
10. Further Assurances. From time to time and at any time after the execution and
delivery of this Agreement, 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.
11. Term. The term of this Agreement shall be in perpetuity.
12. Termination. Violation of any term of this Agreement shall be cause for
termination of the Agreement, and in such an event, each Party shall have all remedies available
at law or equity to enforce that Party’s right to unimpeded use of the Area of Common Use and
the Parties’ Easements.
13. Relationship of Parties. Neither Party hereto is, nor shall it become or be
deemed to be, a partner or a joint venture with the other by reason of the provisions of this
Agreement, nor shall this Agreement be construed to authorize either Party to act as the agent for
the other; and each of the Parties hereby affirms and acknowledges that neither Party is an officer
of the other. Nothing contained in this Agreement shall be deemed to create any contractual
relationship between the Parties hereto with any third parties.
14. Entire Agreement. This Agreement and items incorporated herein contain all of
the agreements of the Parties with respect to the matters contained herein, and no prior
agreement or understanding pertaining to any such matter shall be effective for any purpose.
15. Amendments. No provisions of this Agreement may be amended or modified in
any manner whatsoever except by an agreement in writing duly authorized and signed by
representatives of both Parties.
16. Successors. The terms, covenants, and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the heirs, executors, and administrators of the
respective Parties.
17. Assignment. Neither Party hereto shall assign this Agreement, or any interest
herein, without the prior written consent of the other Party, which consent shall not be
unreasonably withheld. Any such attempted assignment in violation of this Agreement shall be
null and void.
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18. Governing Law; Venue. This Agreement and all documents provided for herein
and the rights and obligations of the Parties hereto shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of California. Venue for the purposes
of the filing of any action regarding the enforcement or interpretation of this Agreement and any
rights and duties hereunder shall be in Fresno County, California.
19. Attorney’s Fees. Should any action or proceeding be commenced between the
Parties hereto concerning this Agreement, or the rights and duties of any Party in relation thereto,
the Party prevailing in such action or proceeding shall be entitled, in addition to such other relief
as may be granted, to recover from the losing Party a reasonable sum for its attorneys’,
paralegals’, and costs incurred in connection with such action or proceeding.
20. Severability. If any term or provision of this Agreement is, to any extent, held
invalid or unenforceable, the remainder of this Agreement shall not be affected.
21. Headings. The subject headings of the sections of this Agreement are included
for purposes of convenience only and shall not affect the construction or interpretation of any of
the provisions herein.
22. Binding Effect. This Agreement shall “run with the land” and be binding upon
and inure to the benefit of the successors and assigns of the Parties hereto.
23. 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.
IN WITNESS WHEREOF , the Parties have executed this Agreement as of the Effective
Date.
DA TE: ~I +-=l z.,~<a=-+-"f :tn~v~' __ _
COUNTY
COUNTY OF FRESNO,
a political subdivision of the State of
California ~
By .,,d
STEVE BRANDAU , Chairman
of the Board of Supervisors of
the County of Fresno
ATTEST:
Bernice E . Seidel
Clerk of the Board of Supervisors
County of Fresno , State of California
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DATE: _1i~/_n~[_1P_2~-0 __ _
DISTRICT
ALTA IRRIGATION DISTRICT,
a California irrigation district
By:_-+-,l--,L-~--l'-----4F-../1A4-f4.J.+-
Name 1/h ,d Jz IJ ~
Title: ~eri~/ ~Jh j P
APPROVED AS TO FORM:
By:~
Na~
Firm: Baker Manock & Jensen , PC
Title: Attorneys for the District
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of Califo);Q ia
County of t't"C.Ano
before me, --='-=~=!;=;=-rt-n-'--~'--~....::~=a=n=d-t-+il l_e'\J_o_~-=th~e.;;;:::o,,,..~ ..... ic....;;:~=rf =~--=L :a...-_
personally appeared ---~-=..c· --=-----=-~~~--'--=--_;:__=::..,_--------------
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature cf., J\o . ',( t._.. 'l,:
1············ @··"·'"• ., LISA K. CRAFT f
:;: .• '!>." ·. Notary Public -Californ ia z
j _ ·-. · Fresno County !ic
: . Commiss ion# 2193173 -
My Comm . Expi re s May 17, 2021
(Seal)
EXHIBIT “A”
Depiction of County Easements
EXHIBIT “B”
Area of Common Use
N 16°28'18" E49.58'N 1/4 COR.
SEC. 8-15/24
NORTH LINE, 10' STRIP IRREVOCABLE
OFFER OF CONVEYANCE EASEMENT TO
COUNTY OF FRESNO DOC. #2009-0107131
S 90°00'00" W
70.09'
S 83°54'53" E, 1
2
0
.
0
4
'20'20'20'20'S 90°00'00" W, 157.29'
S 00°00'00" W
16.06'
S 09°13'53" E
35.86'
N 86°29'01" E
30.90'N 01°13'18" E62.29'N 90°00'00" E, 179.65'
S 83°22'53" W, 1
3
0
.
1
4
'
N 90°00'00" W
21.65'
S 03°21'33" E
45.35'
S 86°29'01" W
32.77'
N 89°43'53" E
63.86'
S 90°00'00" W, 173.80'
S 90°00'00" E
15.75'N 73°23'48" E
31.99'N 64°
3
1'
2
0
"
E
48.44'
N 24°41'24" E
37.97'
S 70°56'42" E
22.17'
S 70°56'42" E
32.02'
S 21°59'19" W
22.82'
S 65°06'01" E
37.83'S 16°28'18" W60.01'NW COR.
SEC. 9-15/24
NE COR. LOT 88
MOST SOUTHWESTERLY COR. LOT 81
58.92'
S72°11' 23"E
24.26'
N90°00' 00"E
15.41'
N59°57' 35"E
14.81'
51.33'
GRADE MATCH
AREA=250 SQ. FT.
A
B C
D E
F
GH
I
JK
AREA OF COMMON USE MAPTRAVERS CREEK BRIDGE ON LINLCON AVENUE
BRIDGE REPLACEMENT
PROJECT DEPARTMENT OF PUBLIC WORKS & PLANNING
BASIS OF BEARINGS:
THE NORTH LINE OF THE NORTHEAST QUARTER OF SECTION 8,
TOWNSHIP 15 SOUTH, RANGE 24 EAST, MOUNTAIN DIABLO BASELINE
AND MERIDIAN, WAS TAKEN TO BEAR N90°00'00"E.
J
E
G
I
H
S0° 00' 00"W
S0° 00' 00"W
S90° 00' 00"W
S83° 54' 53"E
S4° 54' 39"W
15.00'
9.32'
47.62'
12.13'
27.60'
LINE TABLE
LINE DIRECTION LENGTH
F S65° 06' 01"E 15.71'
A
C
D
N64° 31' 20"E 27.75'
47.91'
50.02'
B N9° 28' 49"E 18.60'
N90° 00' 00"E
S90° 00' 00"W
K N90° 00' 00"E 50.38'