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HomeMy WebLinkAboutT-5321 - Agreement/Covenant - 8/2/2005 Recording Requested by: �(�I II IIIc I(I��I I�II f IIII�IIII�III f�ISI Public Works Department IIII SII III City of Fresno FRESNO County Recorder No Fee-Gov't Code Section 6103 and 27383 Robert C, Werner DOC- 2005-0067809 When Recorded,Mail to Monday, MAR 28, 2005 13:55:50 City clerk T t l ,Pd $0.00, Nbr-0001778735 City of FresnoCRR/R 3/1-9 2600 Fresno Street Fresno,CA. 93721-3623 ___________________________ SPACE FOR RECORDERS USE ONLY .____________________--____ P.W. File 10750 EARLY CONSTRUCTION AGREEMENT FOR SEWER, WATER & STORM DRAIN IMPROVEMENTS FOR TRACT MAP NO. 5321 THIS AGREEMENT is made as of Mos-Lb �� , 2005 between, Woodside Sevillano, 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 5321 Early Construction Agreement Sewer,Water and Storm Drain D. Owner has filed and the City has approved Tentative Tract Map 5321. Owner has applied for approval of a final tract map pertaining to the subject property designated as Tract Map 5321. 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 5321. 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. 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-8814 through 10-C-8820,and FMFCD storm drain plans AN- 16-1 through AN-16-3 in upon the subject property, Owner agrees: 2 Tract Map 5321 Early Construction Agreement Sewer,Water and Storm Drain I. If the final map for Tract Map 5321 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 $12,327.00 for the inspection of the installation of improvements described herein. 6. Upon execution of this Agreement,Owner shall pay fees in the amount of$6,059.00 for plan review of sewer and water plans, charges in the amount of$9,400.00 necessary for wet ties. 3 Tract Map 5321 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 5321 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 Tract Map 5321 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 5321. 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 5321 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 Woodside Sevillano, Inc. a municipal corporation A CALIFORNIA CORPORATION By: By: Michael T. Kirn s H URE Assistant Public.Works Director PREs'"ENT APPROVED AS TO FORM HILDA CANTU-MONTOY City Attorney By: Agn s illiams Deputy CLERK'S CERTIFICATION STATE OF CALIFORNIA ) ss. COUNTY OF FRESNO ) On ►� ,2005,before me, �/ ,personally 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 Cl k By: Deputy 7 Tract Map 5321 . Early Construction Agreement Sewer,Water and Storm Drain EXHIBIT "A" Real property in the City of Fresno, County of Fresno, State of California, described as follows: PARCEL A OF PARCEL MAP NO. 2004-11,IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED JANUARY 13, 2005, IN BOOK 64 AT PAGES 38 AND 39 OF PARCEL MAPS, FRESNO COUNTY RECORDS. APN: 312-111-35 8 a CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On MARCH Zj ST, Zoos before me, Jeanna M. Erickson , Date Name and I Me or 0mcer e.g., ane Doe,Notary u is personally appeared Seth Ure Name(s)of Signer(s) 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 seal. JEANNA M.ERICKSON _ CommWIon*1466879 -i Notary Pub k-COWWWc FroCounty My Comm.Ezpkes Jon 31, ig ry uis OPTIONAL - 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: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signers Name: I Signer's Name: _ IndividualI _ Individual Corporate Officer _ I Corporate Officer Title(s): I Title(s): Partner- Limited _General I _ Partner- Limited General Attorney-in-Fact I _ Attorney-in-Fact Trustee RIGHT.THUMBPRINT I Trustee RIGHT THUMBPRINT Guardian or Conservator OF SIGNER I Guardian or Conservator OF SIGNER Other. I I I _ Other: I I Signer is Representing: I I I Signer is Representing: I f I I I I I I I I I