HomeMy WebLinkAboutT-5315 - Agreement/Covenant - 7/20/2006 Recording Requested by:
III IN I ILII I IIII 111111111
Public Works Department FRESNO County Recorder
City of Fresno Robert C. Werner
No Fee-Gov't Code Section DOC— 2005-0278809
6103 and 27383
i Acct 301-Fresno City Public Works
When Recorded,Mail to Tuesday, NOV 29, 2005 11:40:56
City Clerk Tt 1 Pd $0.00 Nbr-0001016913
City of Fresno J2 G/R 2/2-11
2600 Fresno Street
Fresno,CA. 93721-3623
•. .nn.nn n- wnn-ww-nnnw .. .. .w w- .w w-w..wwww
---------------------------
SPACE FOR RECORDERS USE ONLY .-------------_--___-_-----
P.W. File 10867
EARLY CONSTRUCTION AGREEMENT SUBORDINATION
FOR SEWER AND WATER IMPROVEMENTS
FOR TRACT MAP NO.5315
THIS AGREEMENT is made as of_ C9 , 2005 between,PACIFIC III,LP,a
California 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 5315
Early Construction Agreement
Sewer and Water
D. Owner has filed and the City has approved Tentative Tract Map 5315. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5315.
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 5315.
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-9048 through 10-C-9050, through in upon the subject
property,Owner agrees:
2
Tract Map 5315
Early Construction Agreement
Sewer and Water
1. If the final map for Tract Map 5315 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
$6,754.00 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement,Owner shall pay fees in the amount of$2,605.00
for plan review of sewer and water plans,charges in the amount$12,900.00 necessary for wet ties.
3
Tract Map 5315
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 5315 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 5315. 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 5315
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
Tract Map 5315
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 5315.
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 known of the
need for such compliance or whether the City failed to notify Owners of the need for such
compliance.
6
Tract Map 5315
Early Construction Agreement
Sewer and Water
THE FOREGOING shall burden thesubject 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 PACIFIC III,LP
a municipal corporation a California Limited Partnership
By:Ac
axtl By: VALLEY PACIFIC BUILDERS,INC.
Michael T. Kirn A California Corporation
Assistant Public Works Director as Gqnerq1 Part
'l �
APPROVED AS TO FORM By:
P. David Wasemiller
HILDA CANTU-MONTOY President
Ci rney
(D
P&VID P. f4ALE-
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
)ss.
COUNTY OF FRESNO )
On Of£ P" ;Z3,2005,before me, -EP-10 LEM ,p e r s o n a 11 y
appeared Michael T.Kirn,Assistant 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 C erk
By: -ki, -f�,�
Deputy
7
Tract Map 5315
Early Construction Agreement
Sewer and Water
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of
Trust recorded December 30,2004,in the office of the Fresno County Recorder,Document
No. 20040291383,of which the Deed of Trust in by and between,Pacific III,LP,a California
Limited Partnership,as Trustor,Fidelity National Title Company,a California Corporation
as Trustee,and Gary Storey,an unmarried man as Beneficiary,hereby expressly
subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Declaration
of Covenants,Conditions,Restrictions and Easements.
Benefici
By:
` Gary orey
8
Tract Map 5315
Early Construction Agreement
Sewer and Water
EXHIBIT"A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO,STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Lot 980 of Bullard Lands Irrigated Subdivision No.6,in the City of Fresno,County of Fresno,
State of California,according to the map recorded in Book 8,page 25 of Plats,Fresno County
Records.
APN: 509-020-03
9
STATE OF California
COUNTY OF Fresno
On November 11. 2005 before me, C.A. Henson
(Name of Notary Public)
personally appeared P. David Wasemiller
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 the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand nd official seal.
(Signature of Notary Public) =NOTARY
SON
79478 G,
CALIFORNIAUNTYar.30.2008
(This area for notarial seal)
(notary)(07-02) / )
1
STATE OF California
COUNTY OF Fresno
On November 11, 2005 before me, C.A. Henson
(Name of Notary Public)
personally appeared Gary Storey
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 the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official eal.
C.A. HENSON
(Signature of Notary Public) COMM. #1479478
NOTARY PUBLIC-CALIFORNIACW `—.
FRESNO COUNTY
My Comm.Expires Mar.30.2008
(This area for notarial seal)
(notary)(07-02)