MASTER ENCROACHMENT AGREEMENT
THIS MASTER ENCROACHMENT AGREEMENT is entered into
______________, 2022, by and between South San Joaquin Irrigation District, a California Irrigation District governed by Division 11 of the California Water Code, with its principal place of business at 11011 E. Highway 120, Manteca, California 95336 (“District”) and City of Manteca, a municipal corporation, with its principal place of business located at 1001 W. Center Street, Manteca, CA 95337 (“City”).
RECITALS:
A. District occupies extensive and various easements and fee-owned lands for the operation of its irrigation and drainage facilities. The District’s easements, whether of record or prescriptive, and fee-owned lands are referred to as “District Property.” All District canals, pipelines, appurtenances, or other structures upon on District Property are referred to collectively as “District Facilities.” B. The parties desire by this Agreement to facilitate the installation of City facilities to be shown on the plans prepared by City and approved by District as described below (“City Facilities”), and to ensure that the City Facilities are properly licensed and permitted without undue delay.
C. District is willing to permit the encroachment of the City Facilities on District Property subject to the terms provided below.
NOW, THEREFORE, it is agreed as follows:
AGREEMENT
Nature of Right Conferred. District hereby assents only to: (a) an encroachment upon a District easement or easements, whether the easements are of record or prescriptive, or (b) to confer a license to City to encroach upon District fee-owned lands, all subject to the terms hereof. Nothing in this Agreement constitutes a grant in fee or other disposition of any land or interest in land which is owned or otherwise occupied by the District.
City acknowledges that the consent contained in this Agreement relates only to the rights of the District by virtue of an easement or easements or upon land owned in fee by District. It is understood that nothing in this Agreement shall be considered as a representation by the District of the authority to grant any interest in land over, across, or under any property owned or controlled by any person other than the District, and City shall obtain any further grants or consents from all others owning interests in land subject to a District easement.
It is further agreed that any right granted to City hereunder shall be inferior and subordinate to the rights of the District. Except as herein expressly permitted, City shall not place or permit to be placed on, in, across, or through said right of way any building, structure, explosive, guy wire, or any other obstruction, nor do or permit to be done, anything which may interfere with the District’s Facilities or with District’s full use and enjoyment of District Property. City shall not authorize or permit encroachment by anyone other than its representatives or agents, or utilize the Encroachment Area in any manner which may endanger or interfere with the proper use and operation of any District works or property without first obtaining the District’s written consent.
Assignments and Sublicenses. City may not assign or otherwise transfer any right created by this Agreement without the District’s prior written consent, which consent shall not be unreasonably withheld; provided, however, that City may assign the rights granted hereunder to a parent, corporate successor, subsidiary, joint venture partner, limited liability company member, or other affiliate of City, now or hereinafter existing, by written notice to the District of such assignment and written acknowledgement of the assignee consenting to the assignment. City shall not authorize or permit others to utilize any facilities or structures or right of way areas which are the subject matter of this Agreement in any way not expressly authorized by this Agreement.
Indemnity and Release. As a major inducement and consideration for the license and permission herein, City shall indemnify and hold harmless the District, its officers, employees and agents against and from any and all loss, damage, claims, demands, actions, causes of actions, penalties except criminal fines or punitive damages, costs and expenses of whatsoever nature, including court costs and attorneys’ fees, which are incurred or result from injury to or death of persons, including, but not by way of limitation, officers, agents and employees of the District and of City, or from damages to or loss or destruction of property, including, but not by way of limitation, damages to the levees, canals, pipelines, appurtenant facilities, equipment or other District property or property of City, when such injury, death, loss, destruction or damage arises from or is contributed to by:
(a) The installation, construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the City Facilities; (b) The prosecution of any work by City contemplated by this Agreement; or (c) The presence, operation or use of the City Facilities.
Provided, however, that this indemnity shall not extend to that portion of any such injury, death, loss, destruction or damage that is attributable to the negligence of the District, its officers, agents or employees, nor shall it extend to claims for damages arising out of the death of, or personal injury to, employees of the District to the extent that such claims are within the coverage or Worker’s Compensation insurance carried by the District.
City does hereby release the District, its officers, agents and employees (but not its independent contractors), from all liability for damages to or loss or destruction of the Facilities from any cause whatsoever unless the negligence of the District, its officers, agents and employees is the sole cause of such liability.
Corrective Actions. City agrees that any District Facilities encroached upon by City will be left in as good or better condition than before the encroachment was made. In the event the Engineering Department Manager, in his sole discretion, reasonably determines that the District Facilities are not left in as good or better condition, City agrees to take such corrective action as the Engineering Department Manager deems necessary, at the sole expense of City and at no expense to the District. City agrees in the event that it fails to make corrections requested by the Engineering Department Manager the District may make such corrections at City’s expense, and that City agrees to pay the costs of such corrections in full upon demand by the District.
Plans and Specifications; Construction.
City is solely responsible for ensuring all City Facilities are designed, erected, constructed, installed, and operated in such a manner so as not to interfere with the construction, operation and maintenance of District Facilities, or the access and full use of District Property. District will not approve the plans and specifications of any proposed City Facility determined likely to interfere with a District Facility or with the present or future use of District Property.
No City Facility shall be constructed, erected, installed, substantially modified or relocated upon District Property, or removed therefrom, until City has submitted to District and District has approved, plans and specifications for the specific work relating to City Facilities within specifically identified District Property. District shall promptly review the plans, and if review cannot be completed within fourteen (14) days, shall notify City and diligently complete its review as soon as is practical. At the time of submission of the plans and specifications, City shall specify whether its own forces or a contractor’s forces will perform the work, and if a contractor, the name, address, license number and contact information for the Contractor. City is responsible for the performance of all obligations under this Agreement, regardless of whether work is performed by City or its contractor.
City shall provide the District with mapping of all City Facilities installed during each calendar year in either Auto‑Cad format or other format mutually acceptable to District and City that will allow District to incorporate such information into its GIS system.
All City Facilities that cross District Facilities shall be constructed with at least two (2) feet of vertical separation from the lowest point of District Facilities, any deviations shall require approval from the District Engineer. Parallel installations within the District’s easement shall only be considered when unavoidable circumstances exist and require special approval from the District Engineer. In such cases, City Facilities shall have at least ten (10) feet of horizontal separation from the closest edge of District Facilities and be constructed outside the toe of canal banks.
City’s construction activities shall incorporate all requirements noted on plans approved by the District, including all District’s requirements. Final construction, including appurtenances and the layout and construction of same, shall be in accordance with the District-approved plans and specifications and upon the locations approved in advance by District and shall not be changed or altered without the express written consent of District. City and District shall provide each other with the name and contact information for the individual responsible for overseeing the work, including mobile and landline telephone numbers, e-mail address, and street and mailing addresses. Contact information shall be updated as necessary, but no less than annually. The parties shall require that its contact persons are familiar with the provisions of this Agreement.
Any work performed under this Agreement, either by City and/or its contractor(s),shall comply with all requirements of applicable law, including, but not limited to, the Clean Air Act, as amended (U.S.C. 1857, et seq., as amended by Public Law 91-604); the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq., as amended by Public Law 92-500); and the California Environmental Quality Act (“CEQA,”)and other federal, state, and local laws, regulations and guidelines. Further, City and/or its contractors shall comply with applicable requirements of OSHA, Cal-OSHA, State of California Department of Industrial Safety and Health Orders, Cal-Trans, and California Health and Welfare laws, regulations and guidelines issued thereunder, where applicable.
Ordinary Maintenance, Repair or Replacement.
City shall maintain its Facilities in good condition and operating repair at all times. The District may require the removal of any City Facilities from District Property if any time after reasonable notice, the Facilities remain in a condition of disrepair or disuse.
Maintenance, Repair, Relocation, or Installation of District Facilities Requiring the Removal, Repair or Reinstallation of City Facilities Should the maintenance, repair, relocation or installation of District Facilities, either as they currently exist or shall exist in the future, require the temporary removal or relocation of City Facilities, City shall, within 30 days of District’s written request or within such longer period of time as District may specify in the notice, remove or relocate the City Facilities at no cost to District. Further, the removal, relocation, replacement, or reinstallation of City Facilities shall be performed by City at its sole expense. The foregoing provisions pertain to all work on District Property and District Facilities, whether the work is performed by the District or by others on behalf of the District, including work performed at the time of development of any tract of land of which the District Property is a part.
In the event the District is required to perform emergency or urgent work upon District Property that necessitates the removal or relocation of City Facilities, the District will endeavor to provide City as much advance notice as is practical under the circumstances. Notification may be either written or oral. The failure of the District to give City notice in any case shall not subject the District to any liability whatsoever.
Increased Operation and Maintenance Expenses. It is understood that the location of City Facilities on District Property may give rise to extraordinary expenses for the maintenance of District Facilities, which would not otherwise have occurred but for the presence of City Facilities. “Extraordinary maintenance” means repair, maintenance or replacement activities outside or in excess of the ordinary scope of such activities normally undertaken by the District and which result in increased costs or staff time to the District. City agrees to compensate the District for the direct costs of such extraordinary maintenance reasonably required as a result of the installation of City’s Facilities upon District Property, and based upon statements prepared and submitted to City setting forth in reasonable detail, the nature and extent of each item of extraordinary maintenance performed.
Administrative Fees. Should the implementation or enforcement of the provisions of this Agreement require the dedication of District staff time and resources beyond that typically required for Master Encroachment Agreements generally, City at District’s request, shall reimburse District for the costs thereof in accordance with the District’s then-current “Policy and Fee Schedule for South San Joaquin Irrigation District Special Services and Projects.” Notice. All notices required or permitted under the terms of this Agreement, except as otherwise provided, shall be in writing. Contact information for purpose of giving notice are as follows:
South San Joaquin Irrigation District
Peter Rietkerk, General Manager
11011 E. Highway 120
Manteca, California 95366
Phone: 209-249-4600
Email: [email protected]
Facsimile: 209-249-4642
City of Manteca
Toby Wells, City Manager
1001 W. Center Street
Manteca, CA 95337
Phone: 209-456-8000
Email: [email protected]
Facsimile: 209.923.8960
Any such notice or communication shall be deemed to have been given on: (i) the day such notice or communication is personally delivered; (ii) three (3) days after such notice or communication is mailed by First Class, prepaid certified, or registered U.S. mail; (iii) one (1) working day after such notice or communication is sent by overnight courier; or (iv) one (1) working day after such notice or communication is faxed or sent electronically, except when such communications are sent after 4:30 p.m. or on a non-business day, they shall be deemed to be sent the next business day.
For the purposes of this Section, “business day” means any day except Saturday, Sunday, or State or Federally observed holiday.
A party may, for purposes of this Agreement, change his, her or its address, fax number, email address or the person to whom a notice or other communication is marked to the attention of, by giving notice of such change to the other party pursuant to this Section 10.
Legal Action. In the event either party commences a legal action to enforce any of the terms and conditions of this Agreement, each party shall bear its own costs. This Agreement shall be governed by and interpreted in accordance with California state law. Venue for any cause of action arising under this Agreement shall be the Superior Court of the County of San Joaquin unless District consents to a different venue as allowed by California state law.
Expiration. This Agreement shall terminate at 11:59, December 31, 2031 unless mutually extended beyond such date. Either party may cancel this Agreement by providing at least 90 days’ notice to the other party.
Survival. City’s covenants in Section 3 shall survive the expiration or other termination of the Agreement. Except as otherwise set forth in the Agreement, the permission granted to City in this Agreement for location of its Facilities on District Property, and the obligations of City attaching thereto, shall survive any expiration or other termination of the Agreement for so long as City shall own, maintain, and repair the Facilities.
Conditions Precedent. City acknowledges that all of the foregoing constitute conditions precedent to the District granting the Agreement herein requested and understands that the Agreement would not have been granted in the absence of said conditions.
No Property Interest. No permission granted by District to City under this Agreement shall in any way be considered a compensable real or personal property interest.
Modification. The terms and conditions of this Agreement shall not be modified except by written consent of both parties. However, in the event of a subsequent change in federal, state, or local law or regulation to which either party is subject that necessitates modification of one or more terms of this Agreement, modification of this Agreement may be made strictly to comply with said law or regulation and the other party shall not withhold its consent to such modification.
NOW THEREFORE, in consideration of the rights, obligations, terms and conditions set forth above, City and District enter into this Agreement effective on the later of the dates of execution of this Agreement, below. “DISTRICT” “CITY”
South San Joaquin Irrigation District City of Manteca By___________________________ By___________________________ Peter M. Rietkerk Toby Wells, P.E.
General Manager City Manager
Dated:___________________, 2022 Dated:___________________, 2022 ATTEST:
By___________________________
Olivia Nashed
Acting Director Legislative Services/City Clerk
COUNTERSIGNED:
By___________________________
Bret Harmon,
Director of Finance
COUNTERSIGNED:
By___________________________
Dawn Cortesi,
Acting Director Human Resources
APPROVED AS TO FORM:
L. David Nefouse, City Attorney
By___________________________
Carrie Woolley
Deputy City Attorney
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