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Home My WebLink AboutT-5310 - Agreement/Covenant - 8/2/2005 Recording Requested by: IIII III III I III II III III I II IIIIII 1�II I IIII III II��) Public Works Department City of Fresno FRESNO County Recorder No Fee-Gov't Code Section Robert C, Werner 6103 and 27383 DOC— 2004-0275773 When Recorded,Mail to Thursday, DEC 09, 2004 15:23:37 City Clerk tt 1 Pd $0.00 Nbr-0001677781 City of Fresno c r r/R 3/1-9 2600 Fresno Street Fresno,CA. 93721-3623 _ •-------------------------- SPACE FOR RECORDERS USE ONLY --------------------------- P.W.File 10701 EARLY CONSTRUCTION AGREEMENT FOR SEWER, WATER & STORM DRAIN IMPROVEMENTS FOR TRACT MAP NO. 5310 THIS AGREEMENT is made as of2004 between,LENNAR FRESNO, INC., a California Corporation, 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 5310 Early Construction Agreement Sewer,Water and Storm Drain D. Owner has filed and the City has approved Tentative Tract Map 5310. Owner has applied for approval of a final tract map pertaining to the subject property designated as Tract Map 5310. 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 5310. 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-10-C-8738 through 10-C-10-C-8742,and FMFCD storm drain plans BM-15-1 through BM-15-2 in upon the subject property, Owner agrees: 2 Tract Map 5310 Early Construction Agreement Sewer,Water and Storm Drain 1. If the final map for Tract Map for any reason is not approved by the City and recorded by the County Recprder 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 maybe 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 $ 14,279.00 for the inspection of the installation of improvements described herein. 6. Upon execution of this Agreement,Owner shall pay fees in the amount of$7,425.00 for plan review of sewer and water plans, charges in the amount$10,400.00 necessary for wet ties. 3 Tract Map 5310 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 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 Tract Map 5314 Early 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 e e Tract Map 5310 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 5310. 17. Applicable Laws. Owner acknowledges that owners, not the City, are- responsible reresponsible 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 known of the need for such compliance or whether the City failed to notify Owners of the need for such compliance. 6 Tract Map 5310 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 Lennar Fresno, nc., a municipal corporat'on a Californ' rporation By: l By: " Michael T. Kirn Steve Lutton Interim Public Works Director Vice President APPROVED AS TO FORM HILDA CANTU-MONTOY City Attorney By: A n s Williams De ty CLERK'S CERTIFICATION STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO ) On , � ,2004,before me, } -� + �lit l ,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..KLISCH City lark f Erika,L•ey, Deputy 7 ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA } COUNTY OF Fresno } On December 2, 2004 before me, Tauna Rothermel , personally appeared STEVE LUTTON personally known to me 0 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), an 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. WITNESS my hand and official seal. TAuru+RorHERMEL IL Commission#1351179 Z Notary Public-Cawomia Fresno County My Comm.ExPire.Apr 13,2006 n re (NOTARY SEAL) Tract Map 5310 Early Construction Agreement Sewer,Water and Storm Drain EXHIBIT "A" PARCEL 1: THE NORTH HALF OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10,TOWNSHIP 14 SOUTH,RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY.OF FRESNO, STATE OF CALIFORNIA,ACCORDING TO THE OFFICIAL PLAT THEREOF. PARCEL 2: THE SOUTH HALF OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10,TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA,ACCORDING TOT HE OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE SOUTH 164 FEET OF THE WEST 240 FEET OF THE NORTH IA OF THE SOUTHWEST 1/4 OF THE NORTHEAST 1/4 OF SECTION 10, TOWNSHIP 14 SOUTH,RANGE 21 EAST,MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. APN: 313-040-47 8