HomeMy WebLinkAboutT-4598 - Agreement/Covenant - 9/29/2005 (2) Pubki iling Requested by: i IIII III III III II IIII I III IIIIIII I III I(IIII IIIIII II
Public Works Department
City-of Frf.sno
No Fee-Gov't Code Section FRESNO County Recorder
6103 and 27383 Robert C, Uerner
DOC— 2005-0023970
When Recorded,Mail to
Aeet 301-Fresno City Public Works
City Clerk Tuesday, FEB 01, 2005 .15:06:22
City of Fresno Tt 1 Pd $0,00 Nbr-0001726067
2600 Fresno Street DJG/R6/2-12
Fresno,CA. 93721-3623
--------------------------- SPACE FOR REL inm iuc , Uat: ONLY ---------------------------
P.W.
--------------------------P.W. File 10545
EARLY CONSTRUCTION AGREEMENT AND SUBORDINATION
FOR SEWER, WATER AND STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 4598.-
.THIS AGREEMENT is made as of 01 2006 between, LAFFERTY GDCI
FRESNO,L.P.,a Delaware Limited Partnership,hereinafter known as "Owner",and the CITY
OF FRESNO, a Municipal.Corporation ("City"). .
RECITALS
A. Owner hereby represents and warrants that it owns real property ("subject
property") situated in the City of Fresno, County of Fresno, described as follows:
See attached Legal Description entitled Exhibit"A" which is attached hereto and incorporated
herein by reference as if set out in full.
B. Owner further hereby represents and warrants that any and all parties holding .
record title in subject property which may ripen into a fee,have subordinated to this instrument
and all such instruments of subordination, if any, are attached hereto and made a part of this
instrument.
C. Owner intends to construct homes on the subject property and will have a legal
interest in the subject property subsequent to recordation of a final tract map.
s
F`
Requested by:
r.ksDepartment
no
° 't Code Section
383
hen Recorded,Mail to
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA. 93721-3623
___________________________ SPACE FOR RECORDERS USE ONLY ___________________________
P.W. File 10545
EARLY CONSTRUCTION AGREEMENT AND SUBORDINATION
FOR SEWER, WATER AND STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 4598
THIS AGREEMENT is made as of D , 200$5 between, LAFFERTY GDCI ,
FRESNO,L.P.,a Delaware Limited Partnership,hereinafter known as"Owner",and the CITY
OF FRESNO, a Municipal Corporation ("City").
RECITALS
A. Owner hereby represents and warrants that it owns real property ("subject
property") situated in the City of Fresno, County of Fresno, described as follows:
See attached Legal Description entitled Exhibit "A" which is attached hereto and incorporated
herein by reference as if.set.out in full.
B. Owner further hereby represents and warrants that any and all parties holding
record title in subject property which may ripen into a fee,have subordinated to this instrument
and all such instruments of subordination, if any, are attached hereto and made a part of this
instrument.
C. Owner intends to construct homes on the subject property and will have a legal
interest in the subject property subsequent to recordation of a final tract map.
Tract�Map%4598
Early Construction Agreement
Sewer, Water and Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 4598. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 4598.
E. Owner wishes to commence construction of the sewer, water and storm drain
improvements within the tract map being developed prior to approval of the final tract map for
Tract Map 4598. .
F. The City .is unwilling to permit such construction or inspect same without
assurance that no vested rights or entitlement will be conferred by the issuance of this early
construction permit or by city inspection of such construction.
G. Owner acknowledges that such improvements will be accepted by the City only if
they comply with all applicable City standards, codes and ordinances and are located within
public.rights-of-ways as fixed and dedicated upon such tract map as may be finally approved by
the City,provided that in no case,shall acceptance of such improvements be final until approval
and recordation of the final map by the Fresno City Council and,.County Recorder respectively.
H. Owner understands and acknowledges that the improvements described herein
shall be subject to acceptance or rejection by the City upon inspection thereof, and upon the
terms and conditions contained herein.
THEREFORE,IN CONSIDERATION of the foregoing recitals and the agreement by the
City to permit and inspect the early construction of sewer and water improvements as shown on
approved City Drawing No's 10-C-8392 through 10-C-8404,and FMFCD storm drain plans BM-
11-1 through BM-11-3 in upon the subject property, Owner agrees:
2
Tract Map 4598
3 Eatly Construction Agreement
Sewer,Water and Storm Drain
1. If the final map for Tract Map 4598 for any reason is not approved by the City and
recorded by the County Recorder within six months after the execution of this Agreement,
Owner willremove from the property any improvements or construction placed or constructed
thereon pursuant to this Agreement,provided that at the option of the City's Director of Public
Works,the Owner may be directed to cap or otherwise alter such improvements to prevent same
from becoming a nuisance or hazard. Except as .provided in the foregoing, the Owner shall
restore the property to its prior condition.
2. If Owner fails to comply with the provisions of Paragraph 1 above,the City or any
of its duly authorized officers, employees or agents, is unconditionally permitted to enter upon
the.subject property and accomplish such removal or alteration.
3. If the City causes such removal or alteration under the provisions of Paragraph 2
above, the undersigned shall indemnify, hold harmless and defend the City, its officers,
employees, and agents from any claims, lawsuits, costs, liability, damages or expenses of any
nature,including witboutlimitation, costs of suit and fees and expenses for legal services arising
directly or indirectly out of such removal or alteration.
4. Any costs and expenses of removal shall be a lien on the subject property and
appurtenances.running in favor of the City.
5. Upon execution of this Agreement,Owner shall pay fees in the amount of
$24,972.00 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement,Owner shall pay fees in the amount of$8,047.00
for plan review of sewer and water plans,charges in the amount$14,000.00 necessary for wet ties.
3
Tfract MaF..4598
Early Construction Agreement "
Sewer,Water and Storm Drain
7. This Agreement shall in no way be construed as a grant by the City of any right to
the Owner to trespass upon land rightfully in the possession of, or owned by, another, whether
such land be privately or publicly owned.
8. Adequate dust control shall be maintained by the Owner on all.streets within the
area on which work is required to be done under this Agreement from the time work is first
commenced on Tract Map 4598 until the work and improvements are completed. "Adequate dust
control" as used herein shall mean the sprinkling of the streets with water with sufficient
frequency to prevent the scattering of dust by wind or the activity of vehicles and equipment onto
any street area or private property adjacent to Tract Map 4598. Whenever in the opinion of the
City Engineer,adequate dust control is not being maintained on any street or streets as required
by this paragraph,the City Engineer shall give notice to the Owner to comply with the provisions
of this paragraph forthwith. Such notice may be personally served upon the Owner, or if the
Owner is not an individual, upon any person who has signed this Agreement on behalf.of the
Owner, or at the election of the City Engineer, such notice may be mailed to the Owner at his
address on file with the City Engineer. If within twenty-four (24) hours after such personal
service of such notice or within forty-eight(48)hours after the mailing thereof as herein provided,
the Owner shall not have commenced to maintain adequate dust control or shall at any time
thereafter fail to maintain adequate dust.control,the City Engineer may,without further notice
of any kind,cause any such street or streets to be sprinkled as he may deem advisable to eliminate
the scattering of dust,by equipment and personnel of the.City or by contract as the'City Engineer
shall determine, and the Owner agrees to pay to the City forthwith, upon receipt of billing
therefore, the entire cost to the City of such sprinkling.
4
Tract Map-4598
Ealy Construction Agreement
Sewer,Water and Storm Drain
When the surfacing on any existing street is disturbed, this surfacing shall be replaced
with temporary or permanent surfacing within fourteen (14) days, and the roadway shall be
maintained in a safe and passable condition at all times between the commencement and final
completion, and adequate dust control shall be maintained during these operations.
9. No vested rights or entitlement are conferred by the issuance of this early
construction permit or by inspection of any improvements constructed thereunder.
10. Owner shall indemnify,hold harmless and defend the CITY and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damage (whether in contract, tort .or.strict liability, including but not
limited to personal injury, death at any time and property damage), incurred by the City, the
Owner 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 out of performance of this Agreement. The Owner's obligations under the preceding
sentence shall apply regardless of whether the CITY or any of its officers, officials, employees,
agents or volunteers are actively or passively negligent but shall not apply to any loss, liability,
fines, penalties, forfeitures, costs.or damages caused solely by the active negligence or by the.
willful misconduct of the CITY or any of its officers, officials, employees, agents or volunteers.
If the Owner should subcontract all or any portion of the work to be performed under this
Agreement,the Owner shall require each subcontractor to indemnify, hold harmless and defend
the CITY and each of its officers, officials, employees, agents and volunteers in accordance with
the.terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
5
�,- Tract Map 4598
Early Construction Agreement
Sewer,Water and Storm Drain
11. Owner shall make no assignments of this Agreement or of any duty or obligation
of the performance hereunder,in whole or in part, without the prior written consent of the City
12. This Agreement shall be binding upon and inure to the benefit of the City, the
Owner, and their respective assignees, transferees, and successors in interest.
13. The provisions of this Agreement are severable. The unenforceability of any one
provision or part thereof shall not affect the validity or enforceability of any other provision.
14. Time is of the essence of all provisions of this Agreement
15. Whenever the context of the Agreement so requires,in interpreting this Agreement,
any gender includes the other, the singular includes the plural, and the plural includes the
singular.
16. This Agreement shall terminate upon approval by the CITY of final Tract Map
for Tract Map 4598.
17. Applicable Laws. Owner acknowledges that owners,not the City,are responsible
for determining applicability of and complying with all local, state and federal.laws including,
but not limited to, provisions of the California Labor Code, Public Contract Code and
Government Code. The City makes no express or implied representation as to the applicability
or inapplicability of any such laws.to this Agreement or the parties respective rights or
obligations hereunder including, but not limited to, payment of.prevailing wages, competitive
bidding;subcontractor listing,or similar or different matters. Owner further acknowledges that
the City shall not be liable or responsible in law or equity for any.failure be Owners to comply
with any such laws, regardless of whether the City knew, could have known or should have
5�
known of the need for such compliance or whether the City failed to notify Owners of the need
,k for such compliance.
6
Tract Map"1598
• Early Construction Agreement
Sewer,Water and Storm Drain
THE FOREGOING shall burden the subject property described and constitute a covenant
running with the land in favor and for the benefit of the City and its property, shall be
enforceable thereby, and shall be binding upon the successors, assigns, transferees and heirs of
the Owner.
CITY OF FRESNO LAFFERTY GDCI FRESNO, L.P.
a municipal.corporation ale Partnership
By: %�/ � ( 14
Michael T. Kirn ferty
Atsr. Public Works Director Managing Member
APPROVED AS TO FORM
HILDA CANTU-MONTOY
City Attorney
By: '
A24nes`Willi+'*'
Puh'
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
ss.
COUNTY OF FRESNO )
On � j , 200 before me, IVAl �l_l__ p e r s o n a l l y
appeared Michael T. Kirn, ,defbT.-:Public Works Director, personally known tome (or 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(s)
the person(s), or entity upon behalf of the CITY OF FRESNO of which the p'erson(s).acted,
executed the instrument.
WITNESS my hapd,and official seal.
REBECCA]�,-KLISCIJ .
City Cl."k
By:
Erika LeykaJD u
7
Tract Map X1598
Early Construction Agreement
Sewer,Water and Storm Drain
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of
Trust recorded July 30, 2004, in the office of the Fresno County Recorder,Document No.
20040167603 of which the Deed of Trust in by and between Lafferty GDCI Fresno,L.P.,-a .
Delaware Limited Partnership, as Trustor, Fidelity. National Title Company, as Trustee, and
Ohio Savings Bank, a Federal Savings Bank as Beneficiary, hereby expressly subordinates
said Deed of Trust and its beneficial interest thereto to the foregoing Early Construction
Agreement and Subordination for sewer, water and storm drain improvements
for Tract Map No.4598
DATED
BENEFICIARY
Ohio Savings Bank,
a Federal Savings Bank
By:
Gary L.Arnett, Vice President
8
Traci Map.A598
Eatly Construction Agreement
Sewer,Water and Storm Drain
EXHIBIT "A"
That portion of the Northwest quarter of the Southeast quarter of Section 10, Township 14,
South Range 21 East, Mount Diablo Base and Meridian, described as follows:
BEGINNING at the center quarter corner of said Section 10; thence North 89°50101" East,
along the North line of said Northwest quarter, a distance of 660.06 feet to the intersection
with the East line of the West half of said Northwest quarter; thence South 0`06'48" East,
along said East line, a distance of 744.00 feet; thence North 89"50'01" East, along the South
line of the North 744.00 feet of the East half of said Northwest quarter, a distance of 202.70
feet; thence South 0°10'36" East, a distance of 110.35; thence North 89°49'24" East, a distance
of 57.62 feet; thence South 0°01'36" East, a distance of 482.00 feet to the intersection with the
South line of said Northwest quarter; thence South 89'49'24" West, along said South line, a
distance 921.35 feet to the intersection with the West line of the Southeast quarter of said
Section 10; thence North 0"06'00" West, along said West line a distance of 1336.51 feet to the
POINT OF BEGINNING.
Assessor's Parcel No.
313-040-71s, affects a portion of land herein described.
9
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907
State of
County of
On �p� \ Q, ao0'A before me,
DATE NAME,TITLE OF OFFICER-E.G.,-JANE DOE,NOTARY PUBLIC'
personally appeared
NAME(S)OF SIGNER(S)
9 personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(&•) whose name(-s-) is/ar-e
subscribed to the within instrument and ac-
knowledged to me that he/fey executed
the same in his/he $ir authorized
capacity(4s), and that by his/h444ter- .
CAROL BROVIIN signature(&) on the instrument the person(.&),
COMM 01300204 or the entity upon. behalf of which the
NOTARY PUNKLX CAIJFORNIA
CONTRACOSTA COUNTY person(s) acted, executed the instrument.
Comm.Exp.,APRIL 27,2005
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of.this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TITLE(S) TITLE OR TYPE OF DOCU6kNT
❑ PARTNER(S) C� LIMITED
❑ GENERAL
❑ ATTORNEY-IN-FACT NUMBER OF PAGES
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR.
❑ OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSONS)OR ENTITY(IES) J
SIGNER(S) OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
County of San Bernardino }SS.
On December 21, 2004, before me, Thanhliem Brenda Le, Notary Public,
personally appeared Victor P. Bessette,
® personally known to 'me
❑ proved tome on the basis of satisfactory
evidence
to be the person whose name is subscribed to
Q T111 EpI B the within instrument and acknowledged to me
Commission # 139 q LE that he executed the same in his authorized
Not ory 8188. capacity, and that by his signature on the
Son 6etnb►ic_California D instrument the person, or the entity upon behalf .
ordino County
��nIresFebq 2Q77 of which the person acted, executed the
instrument.
IT SS my h d d offici I s
Place Notary Seal Above
Signatur otary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Subordination
Document Date: Number of Pages: 9
Signer Other Than Named Above:
Capacity Claimed bV Signer
RIGHTTHUMBPRINT
Signer's Name: Victor P. Bessettte
❑ Individual Top of thumb here
® Corporate Officer--Title: Vice President
❑ Partner--❑ Limited ❑ General
❑ Attorney in Fact
T71 Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing: Ohio Savings Bank
Signer's Name: RIGHT THUMMPRINT
❑ Individual OF SIGNER#2
❑ Corporate Officer--Title: Top of thumb here
❑ Partner--❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
ISS.County of Riverside
On January 25, 2005, before me, Thanhliem Brenda Le, Notary Public,
personally appeared Gary L. Arnett,
®personally known to me
❑ .proved to me on the basis of satisfactory
evidence
to be the person whose name is subscribed to
the.within instrument and acknowledged to me
that he executed the same in his authorized
NDA LE capacity, and that by his signature on the
I ANHLIE 398188 instrument the person, or the entity upon behalf
Comrnlsslon CollforNo of which the person acted, executed the
Notary pubic Feb4, instrument.
z r�o Son 6erndrdino C 2007
MY C, ExplresWIT ESS m han and official seal.
� 1
i
Place Notary Seal Above
Signature of Notary ublic
OPTI
Though the information below is not required by law, it{nay prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Subordination
Document Date: Number of Pages: 9
Signer Other Than Named Above:
Capacity Claimed by Signer RIGHT THUMBPRINT
Signer's Name: Gary L. Arnett
❑. Individual Top of thumb here
Z Corporate Officer--Title: Vice President
❑ Partner-- ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing: Ohio Savings Bank
Signer's Name: RIGHTTHUMBPRINT
.❑ Individual OF SIGNER#2
❑ Corporate Officer--Title: Top of thumb here
0 Partner--❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
A4.. MTRtJSTOHIO &VINGS
BANK BANK
a divison of Ohio Wn9sBank
INCUMBENCY CERTIFICATE
The undersigned, Donald E. Mields, being a duly elected, qualified and.acting Assistant Secretary of Ohio
Savings Bank,hereby certifies that, at all times from and after January 1, 2004, Victor P.Besse tte has been
a duly elected, qualified, and acting Vice President of Ohio Savings Bank. The specimen signature
appearing below and opposite his name is the true and correct signature of such officer.
Specimen Signature of Victor P.Bessette: � �,� �
Dated:January 9412005 —
Donald E.N iehls
Assistant Secretary and
Senior Counsel
Corporate Seal
S i ;� qtr Imywe 1
a,
Yaf&11M888W'A��� � .
AmTRusT
BANK
OHIO SWINGS a divison of 0hip%vingsBank ,BANK
INCUMBENCY CERTIFICATE
The undersigned,Donald E. Miehls, being a duly elected, qualified and acting Assistant Secretary of Ohio
Savings Bank,hereby certifies that, at all times from and after October 26,2004, Gary L. Arnett has been a
duly elected, qualified, and acting Vice President of Ohio Savings Bank. The specimen signature
appearing below and opposite his name is the true and correct signature of such officer.
Specimen Signature of Gary L.Arnett- I i v a
Dated:January ,2005
Donald E.Miehls
Assistant Secretary and
Senior Counsel
CorporA real
'�
a,.� 1S �tildS
Tract-Map'4598
Earhy Construction Agreement
Sewer,Water and Storm Drain
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of
Trust recorded July 30, 2004, in the office of the Fresno County Recorder, Document No.
20040167603 of which the Deed of Trust in by and between Lafferty GDCI Fresno, L.P., a
.Delaware Limited Partnership, as Trustor, Fidelity National Title Company, as Trustee, and
Ohio Savings Bank, a Federal Savings Bank as Beneficiary, hereby expressly subordinates
said Deed of Trust and its beneficial interest thereto to the foregoing Early Construction
Agreement and Subordination for sewer, water and storm drain improvements
for Tract Map,No.4598
DATED,Ie es .2 i 12004
BENEFICIARY
Ohio Savings Bank,
a Federal Savings Bank
By:
BGG/°/rs�dc.�f
Victor P. Bessette, VP
Gary L. Arnett, Vice President
8
City.of. CASHIER'S MEMO
Department .of Administrative Services, Finance Division
/00 00 Fresno Street, Room 2156, Fre no, Califor 93721,
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City of Fresno Finance Division
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