1 Recording Requested By and
When Recorded Return To:
SOLANO IRRIGATION DISTRICT
810 Vaca Valley Parkway, Suite 201
Vacaville, CA 95688
Subject Title: Dally D-1 Canal/Vanden Road Expansion
Agreement
This agreement is entered into on the _________day of ___________by the 1 Solano Irrigation District, an irrigation district formed and existing under the provisions 2 of Division II of the Water Code of the State of California (hereinafter referred to as 3 “District”) and the City of Fairfield, a general law city under the laws of the State of 4 California (hereinafter referred to as “City”) who do for full and adequate consideration 5 the receipt of which is hereby acknowledged as received agree as follows: 6 7 1.0 Background Facts. The following background facts are true and correct and 8 form the consideration for this Agreement. 9
2 1.1. The city of Fairfield, through annexation into the city boundaries, 10 has become the owner of portions of Vanden Road, an easement and in certain 11 locations, a dedicated fee of interest. Vanden Road was formerly named Adnock Road 12 under the County of Solano Road designation system. The City of Fairfield wishes to 13 widen and provide for certain changes in the width and elevation of the roadway and 14 its shoulders. District holds a fee interest in real property upon which the Dally D-1 15 Canal was constructed and located where the planned expansion of Vanden Road will 16 occur. The D-1 Canal of District transitions to become a pipeline of approximately 36 17 inches in diameter, which is installed and located within an approximate 48-inch 18 diameter casement through the existing Vanden Road to protect that water pipeline 19 which the casement and water pipeline extends in a north westerly direction through 20 the existing Vanden Road and then proceeds through a casement located within the 21 railroad track bed of the Union Pacific Railroad. 22
1.2. The District’s Dally D-1 Canal is located upon real property owned 23 in fee by District. The City, as a condition of receiving funding from the Department 24 of Transportation of the United States is required to certify that it has fee title to the 25 area made subject to expansion and improvement if federal highway funds are 26 utilized. District wishes to cooperate with City and therefore will quit claim its fee 27 interest title without charge for the portion of the real property of District reasonably 28 required for this expansion of Vanden Road, extension of the casement and water 29 pipeline, District will simultaneously reserve an exclusive easement for District 30 except that reserved easement for the portion of the interest in real property to be 31
3 located in the expanded roadway. The easement terms reserved to District set forth in 32 this Agreement will provide the allocation of responsibility for work and the expense 33 of work of relocation and thereafter maintenance, repair, and reconstruction of the 34 water pipeline. The existing and extended casement and other structures and facilities 35 associated with the repair, maintenance, and reconstruction of the water pipeline, 36 casement, and associated facilities between City and District, and attempt to include 37 coordination of such work to reduce the costs to all parties and assure that each of the 38 parties’ facilities can be reasonably and economically inspected and maintained, 39 including the Casement Facilities through the full width of Vanden Road and 40 District’s water pipeline located in the Casement Facilities or exiting or entering those 41 facilities. 42
1.3. The City proposes changes in elevation of the shoulders of Vanden 43 Road and the installation of retaining walls and similar improvements along and upon 44 the Union Pacific Railroad facilities. Those changes or new facilities may require 45 changes in the way operation, maintenance, and repair are conducted by District of its 46 water pipeline, the Casement Facilities, and/or water line by Union Pacific Railroad in 47 the future, which changes in the Union Pacific Railroad facilities may be the 48 responsibility of District to bear the cost under the terms of District’s Agreement with 49 Union Pacific Railroad. District and City wish to provide for the means of 50 accommodating and adjusting for the decreased space for operation and maintenance 51 work and the new retaining wall facilities that City may install upon or in proximity to 52
4 the Union Pacific Railroad facilities and assign responsibility for conduct and 53 payment of costs of any such work. 54
2.0 District does hereby quit claim to City, subject to the reservation to the 55 District of an exclusive easement, right of way, and right of use by District contained 56 in this Agreement, the right title and interest of District in that real property described 57 in Exhibit A attached hereto and shown in the Diagram attached as Exhibit A-1 58 hereto which Exhibits A and A-1 are included herein as if set forth in full. District 59 reserves to itself an exclusive easement for water control and conveyance once 60 facilities are used upon the area described in Exhibit A and upon and across the 61 remainder of the travelled roadway of Vanden Road existing from time to time 62 including adjacent shoulders and embankments associated with City’s Vanden Road 63 for the purposes and uses of installation, maintenance, inspection, and reconstruction 64 of a water conveyance pipeline or pipelines not in excess of 36 inches in diameter to 65 be located and maintained within a casement of no less than 48 inches in diameter 66 casement or protective tunnel or channel facility. The casement, tunnel, or channel 67 facilities including the existing facilities (hereinafter the “Casement Facilities”) shall 68 be owned by, inspected, repaired, maintained, and reconstructed promptly by City 69 who shall bear all costs related to the Casement Facilities. City shall bear all costs of 70 removing and protecting the water line facilities and reinstalling those facilities in the 71 extended Casement Facilities. The Casement Facilities shall be constructed and 72 maintained hereafter at all times by City at it’s sole cost in a fashion and manner that 73 the water pipelines of District can be maintained within and protected by the 74
5 Casement Facilities in a level and straight alignment, and installed and extracted from 75 the Casement Facilities in an economical and safe fashion by District for the purpose 76 of inspection, repair, and replacement by District including the storage of removed 77 pipe sections, their repair and replacement, and making available for District’s use, 78 reasonable areas for the organizing and marshalling of removed and replaced pipe and 79 of equipment and labor utilized in the work by District or its contractors. 80
2.1. District will bear the costs of repair and maintenance of the water 81 pipeline facilities located within the Casement Facilities owned by City after City has 82 completed, at City’s sole cost, the work of its expansion and modification in 83 accordance with the drawings described in Paragraph 4.0 and District has accepted the 84 extended water pipeline and existing water pipeline Casement Facilities subject to the 85 warranty obligations of City. The areas to be made available to District for its use in 86 construction, maintenance, repair, or reconstruction of the water pipeline facilities 87 thereafter without charge or expense to District by City are shown on Exhibit A-1 as 88 “construction and maintenance easement areas.” City will bear all costs and expenses 89 of inspection, repair, and reconstruction of the Casement Facilities and of removing 90 and reinstalling the water pipeline within the Casement Facilities as described in 91 Paragraph 4.0 and the drawings described therein. 92
2.2. City’s Obligations to District Customers. If any damage or 93 interference with District’s facilities for delivery of water through water pipeline 94 facilities located in the Casement Facilities shall occur, including delay in completion 95 of those extension or replacement facilities which has been proximately caused by the 96
6 acts or omissions of City, its agents, employees, independent contractors of City or 97 any third party, which third party’s act is proximately caused by the work or project of 98 the City and which third party is acting within the direct control or authority of City, 99 and such damage shall result in interference or disruption of water service of District 100 to District landowners or occupants of District lands, City shall be fully responsible 101 and shall pay all damages suffered by any water service customer of District to whom 102 such service is interrupted, delayed, or interfered with in any way. City shall defend 103 and hold District and the Indemnified Parties free and harmless from all reasonable 104 legal costs, expert witness costs, and consultant costs incurred by those parties in 105 defending themselves from the claims of such water service customers, and further 106 shall pay any and all damages which may be levied against District or the Indemnified 107 Parties as a result of the interference or disruption. District and City will reasonably 108 communicate and cooperate in the defense of such claims. 109
2.3. City Acting Independently of the District. City shall not, in 110 performing work or protecting, replacing, or reconstructing District facilities, be 111 deemed to be acting as the agent or contractor of District. The recordation of this 112 Agreement shall constitute a notice of non-responsibility and notice to all persons that 113 the District is not responsible for and will not be liable for the costs or expenses of 114 such work or for the reasonable value of improvement of District’s properties. 115
2.4. City’s Insurance Obligations. Prior to commencing work upon the 116 property of District or the work of replacement of District’s water pipeline, City and 117 all parties operating on behalf of City upon the site shall provide satisfactory evidence 118
7 of Worker’s Compensation insurance, liability insurance, and automobile insurance, 119 including contractual assumption coverage in limits and with coverage and financial 120 qualification of insurers as currently specified by the Board of Directors of District 121 are reasonably adequate, which coverages and terms are incorporated herein as if set 122 forth in full. Those limits and coverages shall be $5,000,000 single limits and 123 $1,000,000 property damage coverage with the District and its Directors, employees, 124 and consultants named as additional named insureds. 125
2.5. District’s Obligation Regarding Defects. City hereby agrees to pay 126 District, or to make at his own expense, all repairs, replacements, or payments 127 necessitated by defects in materials (except for materials supplied by District) or 128 workmanship supplied under the terms of this Agreement, which exist within one (1) 129 year after the date of final acceptance of the work by District. 130
2.5.1. This Agreement shall cover defects which shall be in 131 existence during such one (1) year period, but which shall not become apparent 132 until thereafter, subject to the limitation of CCP Section 337.15 as to latent 133 defects. 134
2.5.2. The City shall be fully responsible for all direct and indirect 135 damages and expenses to the District proximately caused by such defects in 136 materials or workmanship, including defects in materials or workmanship 137 supplied to City by subcontractors or manufacturers of equipment. As to any 138 equipment, which bears a guarantee or warranty in writing or by law for a 139 period longer than one (1) year, City hereby stipulates and agrees that such 140
8 guarantee shall be and insure to the benefit of this District for such longer 141 period. 142
2.5.3. The City also agrees to hold the District harmless from 143 liability, costs, or expenses of any kind arising from damage caused to property 144 or persons due to said defects. City shall make all repairs and replacements or 145 payments promptly upon receipt of written order for same from the District. If 146 the City fails to make the repairs, replacements, or payments promptly, the 147 District may do the work and City shall be liable for the cost thereof. 148
2.6. City’s Warranties. Upon acceptance of any portion or part of the 149 work by District, City shall provide to District any warranties, guarantees or 150 covenants, express or implied, by any manufacturer, supplier, or installer of 151 materials, and District shall be a third party beneficiary of such agreements. If 152 District shall elect, City agrees to pursue any such guarantees and/or warranties, 153 implied or expressed, as requested by District from time to time at the expense of 154 City for damage or defects identified by District that exist within one (1) year of 155 completion. 156
2.7. City’s Wage Obligations. City shall conform with and provide for 157 conformance of its agents, employees, or consultants to all wage, apprentice 158 safety, health and legal requirements in completing the facilities, including without 159 limitation to others, the payment of prevailing wage rates upon any work related to 160 facilities to be delivered to District upon pursuant to Paragraph 4.0 of this 161 Agreement. 162
9 2.8. Specific Performance. Each of the Parties to this Agreement 163 stipulate and agree that the obligations to be performed under the terms of this 164 Agreement are unique and that if a breach should occur, monetary damages would 165 not be an adequate remedy of this specific performance or injunction would be an 166 appropriate remedy to require performance of unique obligations undertaken 167 hereunder. Each of the parties and their successors shall be required to make such 168 a stipulation before the arbitrator and/or before any Court that the enforcement of 169 this Agreement may come before. 170
2.9. Default Interest Rate. If, under the terms of this Agreement, amounts 171 of money are payable to either party, or performances are required by either party 172 which require the incurrence of expense to another party because of a failure to 173 perform by a party, interest on the defaulted amount shall be paid by the party 174 failing to perform at the rate specified within this Agreement, and if none is stated, 175 then at the rate of interest published by the Bank of America, NT&SA, as its price 176 rate during such period plus three percent (3%) until the full amount is paid or 177 reimbursed. Any amounts of money owed shall be deemed to be owed thirty (30) 178 days from the date of mailing of a billing or request for….[incomplete pages] 179
3.0 A continuing condition of this quit claim of interest by District to City and 180 of the easement rights reserved to District shall be the duty and responsibility of City 181 to promptly: 182
A) Pay all costs of inspecting, maintaining, repairing, and reconstructing the 183 Casement Facilities and any costs of damages or expenses of protecting, repairing, 184
10 or replacing the water pipeline facilities of District should the Casement Facilities 185 be damaged, fail, or cause damage to District’s water pipeline or appurtenant 186 facilities due to any cause whatsoever including without exclusion of others, acts 187 of god; such as earthquake, floods, or unreasonable amounts of drainage into or 188 through Casement Facilities; and 189
B) City agrees should District need to utilize the construction and maintenance 190 areas or repair access or a portion thereof shown upon Exhibit A-1 or any of them 191 or should access be required through or upon the adjacent areas owned or 192 occupied by City to the Casement Facilities for accessing District’s waterline 193 crossing Vanden Road or its shoulder areas in the Casement Facilities, that City 194 will provide, bear, and pay for all costs of traffic barricades, traffic control 195 facilities, and labor in providing for those traffic management and control 196 activities in accordance with customary procedures and practices for the 197 reasonable period of District or its contractors work. This traffic control and 198 protection work shall include the periodic shutdown of traffic in one or more lanes 199 of Vanden Road if such shutdown and diversion of traffic is reasonable to reduce 200 the costs of repair, maintenance, or reconstruction of District water pipeline 201 facilities and appurtenances thereto; and 202
C) City proposes to construct and thereafter maintain a retaining wall facility 203 upon the Union Pacific Railroad real property or adjacent thereto in the area 204 shown upon Exhibit B, attached hereto and included herein. The Retaining Wall 205 of District or third parties to retain soil and rock and provide for subjacent or 206
11 lateral support adjacent to City’s Vanden Road facilities and shoulder access areas. 207 Those retaining wall facilities would potentially block or make more expensive to 208 District the maintenance, repair, inspection, or reconstruction of District’s water 209 pipeline facilities and Casement Facilities owned by District which proceed 210 through the Union Pacific Railroad embankment and facilities. If it shall become 211 reasonably necessary to provide for repair, relocation, replacement, or 212 reconstruction of those District Casement and/or water pipeline facilities 213 associated with passage through the Union Pacific Railroad property, City agrees 214 to bear the costs of removing, protecting, replacing, and reconfiguring its retaining 215 wall and associated facilities upon receipt of written notice from District or from 216 Union Pacific Railroad of the need to provide for that work upon the retaining wall 217 or associated facilities, City agrees to provide for a construction easement to store 218 District’s waterline and Casement Facilities and supplies removed or stored for 219 repair, replacement, or relocation of those District facilities associated with the 220 work on the Union Pacific Railroad site during periods of work being conducted 221 upon those facilities associated with and located upon areas of City’s Vanden 222 Road and its shoulders adjacent to the work site or the side of the City’s retaining 223 wall. 224
4.0 City agrees, at its cost and expense, to alter, construct, install the Casement 225 Facilities and the Retaining Wall structures as shown on Drawings No. 226 _________________ Revision dates _____________________________ in 227 accordance with the dimensions, materials, and specifications of those drawings. 228
12 (Hereinafter referred to as the “Drawings”) which drawings are incorporated in this 229 Agreement by reference but not attached to the recorded Agreement. City agrees that 230 no alteration, changes in the materials, design, location, or the conditions for their 231 construction or installation will be permitted in the facilities constructed or installed 232 pursuant to those Drawings except with prior District written approval by the Chief 233 Engineer of District; and 234
4.1. City agrees that it will not permit any utilities for the transmission of 235 electricity, information, or pipelines for r the transmission of water, fuel, or other 236 liquids to be installed in or upon the area of the Casement Facilities located on 237 Exhibit A without prior written approval and consent of District or in the area 238 described in Exhibit B where retaining wall facilities will be located. City agrees 239 that the installation, location and maintenance of easements, pipelines, or similar 240 facilities within the area of the Casement Facilities and Retaining Wall Facilities 241 could unreasonably burden and interfere with the use of those areas by District 242 pursuant to its reserved easement and be inconsistent with the rights reserved and 243 retained by District or granted under the terms of this Agreement. 244
5.0 Indemnification. City agrees to hold District, its officers, directors, 245 employees, agents, and independent contractors (the “Indemnified Parties”) free and 246 harmless from, and to defend, indemnify, and pay to the Indemnified Parties any and 247 all damages or costs, including reasonable attorney fees, expert witness costs, and 248 other expenses reasonably incurred in the defense, and any fines, fees, or other 249 impositions as may be suffered as a result of claims, actions, or proceedings against 250
13 the Indemnified Parties by any third party (including other governmental agencies) 251 related to the acts or omissions of City in inspecting, constructing, installing, or 252 maintaining the Casement Facilities and/or the Retaining Wall Facilities. This 253 agreement to indemnify, defend, and hold harmless shall extend to any expert witness 254 fees, attorney fees, investigatory fees, costs, or expenses incurred by District. The 255 widening of Vanden Road, the institution of a Parkway function to that roadway, and 256 the proposed limitation upon vehicular entrance to the roadway to permit higher 257 passage speeds on Vanden Parkway will provide challenges to District in providing 258 for vehicular access exiting from the new Vanden Parkway expansion to the area of 259 the Districts D-1 Dally Canal. Because the District will require conditions for safe and 260 efficient exit of Vanden Parkway to approach and provide for inspection or the 261 provision of labor or materials for repair, maintenance, or reconstruction of the 262 Districts Dally D-1 canal and pipeline, District and City agree to the following 263 measures and steps: 264
5.1. City will provide for a sufficient paved shoulder area to permit SID vehicles or 265 vehicles of its suppliers or contractors to safely decelerate in the exterior South 266 bound lane and then continue that deceleration and turn at slow speeds onto a 267 paved shoulder area of Vanden Road in order to complete the deceleration before 268 turning onto a new roadway to be constructed and thereafter maintained by City. 269 City will be solely responsible for determining a safe design for those facilities. 270 The shoulder area contemplated by the Parties to be used for slowing the vehicle 271 down will be a distance of approximately ________ feet in length parallel to the 272
14 South bound exterior lane of Vanden Parkway commencing at approximately 273 Station No ____ as shown on Drawing No _______, Edition No _____ dated 274 ___________, and continuing to approximately Station No _______. The paved 275 shoulder area shall be at least ______ feet wide. The shoulder area shall be 276 constructed and installed and therefore maintained by City so that braking of a 277 vehicle will be effective on the shoulder and will be approximately _____ feet 278 wide. The shoulder area, so improved, will transition to a roadway constructed 279 and maintained by City at least 16 feet in width extending from the shoulder 280 deceleration area and permitting vehicles to drive on the roadway to, but not from 281 the District’s Dally D-1 lateral for the purposes of operation, inspection, 282 maintenance, repair, and reconstruction of the District’s facilities and access to 283 those facilities. Signage to prevent public use or use of the roadway to reenter the 284 Vanden Parkway will be maintained by City. The roadway will have at least 285 ______ inches of gravel and be compacted during construction so that the 286 roadway will be usable at all times of the year despite inclement weather 287 conditions. The roadway shall be maintained and repaired by City at the cost of 288 City from time to time. City may elect to install a gate system on the roadway a 289 sufficient distance from the shoulder area so that vehicles and personnel can be 290 clear of the shoulder deceleration area before having to open the gate to gain 291 access to the remainder of the roadway. The gate shall have one locking 292 mechanism of the City of Fairfield and a second locking mechanism of the 293 District permitting each of their personnel to open and close the gate 294
15 independently. District will, during periods when it is accessing the road for 295 inspection or performing work upon the Dally D-1 lateral or adjacent thereto, 296 provide for closing and locking of the gate to discourage public access or the 297 dumping of refuge or debris upon the roadway or adjacent property by third 298 parties. City will maintain the shoulder and roadway free of obstruction or such 299 dumped refuge or debris by regularly providing for inspection and removal of 300 those dumped materials. 301
5.2. The design of the roadway and location of the roadway to be planned, installed, 302 and constructed by City shall include (a) an adequate culvert to provide for 303 crossing of the drainage and collector ditch bounding the District’s Dally D-1 304 Canal; and (b) for installation and maintenance of a gate across the roadway near 305 the crossing of that drain and the installation of the culvert which shall have only 306 a SID locking mechanism upon it. The culvert shall be maintained by District. 307 The costs of the installation of the gate will be borne by City and thereafter the 308 maintenance of that gate shall be borne by SID once installed, except if the gate 309 and/or the culvert is required to be relocated to accommodate City’s desire to 310 relocate the roadway facilities. If City desires to relocate the roadway and/or 311 culvert facilities, City will pay for the costs of relocating the gate and/or culvert 312 or reconstructing the gate and/or culvert to the Districts’ reasonable standards 313 which provide an equivalent level of security from persons or animals gaining 314 access to and approaching the District’s facilities. 315
16 5.3. The roadway will be made subject to a recorded nonexclusive easement which 316 City grants to District the right to utilize the easement area on a nonexclusive 317 basis. District consents to the roadway and the easement for the roadway being 318 relocated and reconfigured by City at its sole cost and expense provided that the 319 relocated or reconfigured roadway shall provide for reasonable protection of 320 persons and vehicles in exiting the travelled way of Vanden Parkway and entering 321 the shoulder and then the roadway leading to the Dally D-1 Canal and associated 322 facilities at safe speeds and with sufficient sight distance for other vehicle 323 operators to avoid collisions with the District or its contractors’ vehicles. 324
5.4. Despite the improvement of the shoulder area of Vanden Parkway and the 325 planned use of the graveled roadway from the improved shoulder deceleration 326 area, certain vehicles and/or loads of equipment or materials accessing District’s 327 Dally D-1 Canal may require that traffic control and/or speed control measures be 328 employed on the lanes of the Vanden Parkway to protect both the District or its 329 contractors, persons, equipment, and other drivers upon Vanden Parkway. If such 330 measures are reasonably required, upon request from District, its contractors, or 331 suppliers, City agrees to provide for and pay the costs of those traffic control 332 measures and provide for scheduling of those measures to reasonably expedite 333 Districts work as specified in Paragraph ____ entitled Traffic Control Measures. 334
6.0 Binding Upon Successors, Covenant Running with the Land. This 335 Agreement shall constitute a covenant running with the land described in Exhibit A 336 and shall be binding upon City and District, and any successor of City and/or District 337
17 during ownership of any interest in that real property as a successor owner of that real 338 property interest, except that City’s obligation to indemnify and defend shall continue 339 after conveyance of any portion of City’s Real Property described in Exhibit A and/or 340 Exhibit B. 341
7.0 No Other Terms. There are no other terms, conditions, promises, or 342 warranties either implied or explicit or promises other than are contained within the 343 written terms of this Agreement. 344
8.0 Whole and Entire Agreement. This Agreement is whole and entire and may 345 not be altered except by a writing executed by each party hereto. 346
9.0 Prevailing Party Entitled to Attorney Fees. If it shall be necessary for either 347 party hereto to commence legal action to enforce the duty to arbitrate disputes 348 regarding the terms of this Agreement or to enforce the terms of an arbitration award 349 or determination whether or not included in a Court Judgment, the prevailing party 350 shall be entitled to reasonable attorney fees and costs incurred, including the costs of 351 any consultants or experts employed in the preparation and/or presentation of any 352 evidence in such proceedings. It shall not be a precondition of payment of such costs 353 or expenses that the expert’s or consultant’s information or evidence shall have been 354 presented in any such proceeding or a precondition that the services of the attorney or 355 costs associated with those services shall have been incurred in any o-pen Court 356 proceeding. 357
10.0 Time is of the Essence. Time is of the essence in the performance of this 358 Agreement and of every term and provision thereof. 359
18 11.0 No Third Party Beneficiary. The execution and delivery of this Agreement 360 shall not be deemed to confer any rights upon, nor obligate either of the parties hereto 361 to any person or entity not a party to this Agreement. 362
12.0 Arbitration. If the Parties shall fail to agree in writing within thirty (30) 363 days of a written declaration of a dispute by either party and there is not unanimous 364 written approval of the action or inaction proposed to resolve the dispute, thereafter 365 upon request of any of the Parties, the issue not unanimously agreed to shall be 366 submitted to the Arbitrator appointed herein for final and full resolution. If a Party 367 shall fail to respond or communicate his or her views upon a proposal and thus 368 unanimous written agreement is not obtained, the Arbitrator shall similarly resolve the 369 issue by its decision. 370
12.1. Upon request by any Party, after the passage of time for response 371 and obtaining unanimous agreement, the Arbitrator shall consider the matter and 372 all submissions made by the Parties. The Arbitrator may provide for the gathering 373 of information or data from independent parties employed by it. The Arbitrator 374 need not hold a formal hearing, but shall have the power to summon the Parties or 375 witnesses and to question them under oath in regard to their position and views. 376 The Arbitrator’s direction and decision shall be rendered in writing and shall be 377 final and binding upon the Parties and shall be promptly carried forward and 378 implemented by the Parties including without excluding other acts executing any 379 documents directed by the Arbitrator and providing for any and all measures 380 directed by the Arbitrator or reasonably required by the Arbitrator’s order. 381
19 12.2. The Arbitrator shall be appointed by written agreement of the Parties 382 within thirty (30) days, after the lapse of the thirty (30) day period following a 383 request for approval of a proposal. If the Parties shall fail to agree to the identity of 384 the Arbitrator, the appointment of an Arbitrator shall be made by the Solano 385 County Superior Court, which Arbitrator shall be experienced in the areas posed 386 by the proposal upon which there has been a failure to agree or there is a dispute. 387
12.3. The Arbitrator’s decision shall be final and binding upon the Parties. 388 No appeal or right to challenge the Arbitrator’s decision in any other proceeding 389 shall exist relating to the Arbitrator’s order and decision and no claim shall be 390 made that the Arbitrator has exceeded its authority in its order even if the 391 Arbitrator is appointed by the Superior Court. Each party waives any right to a 392 jury trial in regard to the subject of disputes under the terms of this Agreement. 393
12.4. The Arbitrator’s orders may provide for prospective enforcement 394 and direct that actions be taken in the future in regard to matters not specifically 395 proposed at the time. Once serving as an Arbitrator, the Arbitrator shall resolve 396 any related or associated questions which arise in the future upon which there is 397 not unanimous agreement of the Parties. The Arbitrator shall determine if issues or 398 questions are related. The Arbitrator shall have the authority to sanction any of the 399 Parties for failure to abide by or implement the orders of the Arbitrator or the 400 Party to this Agreement. 401
12.5. The Parties shall each promptly pay one half of the reasonable costs, 402 expenses, and fees of the Arbitrator and the Parties shall pay the costs of defense 403
20 of the Arbitrator to any claims made against it arising from or related to the 404 services of the Arbitrator, whether or not the Arbitrator shall be found to be 405 negligent or have failed to follow established law or procedure. It is the Parties 406 intention that in addition to paying all costs of defense of whatsoever nature and 407 the value of time expended by the Arbitrator in his or her defense, one half by 408 each Party, the Parties shall fully indemnify the Arbitrator against any such claims, 409 judgments, expenses, or liability of whatsoever form or nature and that duty to 410 indemnify shall not depend upon or be conditioned upon the correctness of the 411 Arbitrator’s actions. If the costs of defense, indemnification, or related costs are 412 determined by the Arbitrator to be caused by a failure of a Party to this Agreement 413 failing to adhere to the requirements of this Agreement, those costs and expenses 414 including interest on the amounts incurred in the defense and indemnification of 415 the Arbitration shall be treated as sanctions payable by the Party to perform this 416 Agreement’s terms. 417
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DISTRICT: 419
SOLANO IRRIGATION DISTRICT 420
Dated: _______ By: 421
___________________, President 422
Dated: By: ________________________________ 423
Cary Keaten, Secretary/Manager 424
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Exhibit A 435
(Description of Real Property) 436
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Exhibit A-1 446
(Diagram Including Construction and Maintenance Areas Related to 447 District’s Water Pipeline Facilities) 448
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Exhibit B 457
(Description of Real Property of City’s Retaining Wall) 458 459