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HomeMy WebLinkAboutT-5261 - Agreement/Covenant - 10/4/2005 # Recording Requested by: IIII I!I III I III II Public Works Department IIII I IN 11 City of Fresno FRESNO County Recorder No Fee-Gov't Code Section 6103 and 27383 Robert C. Werner DOC— 2005-0084073 When Recorded,Mail to Friday, APR 15, 2005 09:37:22 City Clerk Tt 1 Pd $0.00 00 Nbr-0001797631 City of Fresno CRR/R3/1-9 2600 Fresno Street Fresno,CA. 93721-3623 -------------------------- SPACE FOR RECORDERS USE ONLY --------------------------- P.W. File 10783 EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION FOR SEWER AND WATER IMPROVEMENTS FOR TRACT MAP NO. 5261 THIS AGREEMENT is made as of d i ,2005 between,CIAO PROPERTIES, A LLC,a California Limited Liability Company, 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. 4 ' Recording Requested by: Public Works Department City of Fresno No Fee-Gov't Code Section 6103-and 27383 04/15/2005,20050084013 When Recorded,Mail to City Clerk City of Fresno 2600 Fresno Street Fresno,CA. 43721-3623 .__________________________ SPACE FOR RECORDERS USE ONLY .________________=_________ P.W.File 10783 EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION FOR SEWER AND WATER IMPROVEMENTS FOR TRACT MAP NO. 5261 THIS AGREEMENT is made as of V-11-5-/S 2005 between,CIAO PROPERTIES, A LLC,a California Limited Liability Company, 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. '1 :I Tract Map 5261 a Early Construction Agreement Sewer and Water D. Owner has filed and the City has approved Tentative Tract Map 5261. Owner has applied for approval of a final tract map pertaining to the subject property designated as Tract Map 5261. 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 5261. 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-8824 through 10-C-8827,in upon the subject property,Owner agrees: 2 Tract Map 5261 Early Construction Agreement Sewer and Water 1. If the final map for Tract Map 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 will remove 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 without limitation,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 $ 7,086.00for the inspection of the installation of improvements described herein. 6. Upon execution of this Agreement,Owner shall pay fees in the amount of$.3,066.00 for plan review of sewer and water plans,charges in the amount$7,600.00 necessary for wet ties. 3 Tract Map 5261 Early Construction Agreement Sewer and Water 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 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. 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 3 Tract Map 5261 Early Construction Agreement Sewer and Water 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 µ Tract Map 5261 Early Construction Agreement Sewer and Water 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 5261. 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 by Owners to comply with any such laws, regardless of whether the City knew, could have known or should have known of the need for such compliance or whether the City failed to notify Owners of the need for such compliance. 6 a f Tract Map 5261 Early Construction Agreement Sewer and Water 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 CIAO PROPERTIES,A LLC a municipal corporation a California Limited Liability Company By: ia.r kw_T7 By: Michael T. Kirn Robert A.McCaffrey Assistant Public Works Director President APPROVED AS TO FORM HILDA CANTU-MONTOY City Attorney By: A e Williams Deputy CLERK'S CERTIFICATION STATE OF CALIFORNIA ) )ss. COUNTY OF FRESNO ) On AR it, I i ,2005, before me, ��4fl UNA ,personally appeared Michael T. Kirn,Interim Public Works Director, personally known to me (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 person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E.J�LISCI City C . By: { hikiLeyva - Deputy 7 �i STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On March 30, 2005,before me,the undersigned,a Notary Public for the State of California,personally appeared,Robert A. McCaffrey , personally known to me (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 capacity(ies), and that by his/her/their signature(s) on the instrument the person(s).or the entity(ies) on behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public L.S. My Commission p4is. anuary 1,20 MICHELE L. HOGAN _ONotlo Commission# 1395535 ryP�blIc - California _ Fresno County My Comm.Expires Jon 21..2007 Tract Map 5261 Early Construction Agreement Sewer and Water EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED CITY OF FRESNO,COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: Parcel 1 together with Parcel 2 of Parcel Map No. 2672,in the County of Fresno, State of California, according to the map thereof recorded in,Book 17 Page53 of Parcel Maps, Fresno County Records,described as follows: BEGINNING at the Northwest corner of said Parcel 1 thence South 89° 55'40" East, a'distance of 633.69 feet to the beginning of a curve to the Southwest having a radius of 10 feet; thence Southeasterly along said curve through a central angle of 90° 19'00" an arc distance of 18.76 feet,- thence eet;thence South 00°23'20" West,a distance of 619.77 feet;thence North 89"56'02" West,a distance of 643.33 feet; thence North 00" 21' 13" East a distance of 629.89 feet to the POINT OF BEGINNING. APN: 577-010-10 8 City"of $ CASHIER'S MEMO ILd n� r -M0 W . Department of Administrative Services, Finance+ Division 26PO Fresno Street, Room 2156, Fresno, California 93721 Date Named - Address / S0 ;�"�S' �" ;Y Accountr Noa }#�x Fund# n Or(] ,* PC BU w Descn tion/References rm ,� + `L 7 x ,1 sKi�µ. :Fro ect�?',:� „'�' <S.:l r jt Y + i 7 �:,. a,.�., , ':3:,"x"+5�.s ;? ry AySs�t,.g w f Activity ID ResourceType Amountky y P i ,...; ,d� ,, 3sx,, .n r., ,'d�' ,r x_."' .�',, ,�_,3 ,.x._ ,-:,, ,.�. �, ss., .A,??f,t L.,. k�a i - - - D E T�_ �2C91- - - - - - - - - - - r J Type: Expiration Date: Card Number: Name: Check Cash Money Order Direct Deposit LEJJ Credi Card lrlty Fr sno Please Sign Name/Phone Number I City of Fresno Finance Division White - Finance Copy Yellow Customer Copy Pink - Book Copy Golder d - I Copy INSTRUCTIONS ON BACK •j 4 2