HomeMy WebLinkAboutT-5338 - Agreement/Covenant - 6/12/2006 Recording Requested by: ;� IIII III III I III II III III I IIII I I IIIIII I IIII I II I VIII
Public of Fresno Works Department
Cit ` FRESNO County Recorder
No Fee-Gov't Code Section Robert C. Werner
6103 and 27383 DOC— 2005-0251538
Tuesday, OCT 25, 2005 10:45:37
When Recorded,Mail to Tt l Pd $0.00 Nbr-0001995140
City Clerk
City of Fresno EMF/R5/2-13
2600 Fresno Street
Fresno,CA. 93721-3623
--------------------------- SPACE FOR RECORDERS USE ONLY
---------------------------
P.W. File 10871
EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION
FOR SEWER,WATER AND STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 5338
THIS AGREEMENT is made as of Gc:rb Bc2 /2-, 2005 between, Bullard/Grantland
No. 1,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.
Recording Requested by:
' Public Works Department
City of Fresno
No Fee-Gov't Code Section
6103 and 27383
When Recorded,Mail to
City Clerk
City of Fresno
2600 Fresno Street
Fresno,CA. 93721-3623
.__________________________ SPACE FOR RECORDERS USE ONLY .__________________________
P.W.File 10871
EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION
FOR SEWER,WATER AND STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO.5338
THIS AGREEMENT is made as of Cc.To gc 2 /7—, 2005 between, Bullard/Grantland
No. 1,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 5338
• Early Construction Agreement
Sewer,Water and Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 5338. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5338.
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 5338.
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-9003 through 10-C-9012,and FMFCD storm drain plans EM-
8-1 through EM-8-3 in upon the subject property, Owner agrees:
2
Tract Map 5338
• 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 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
$18,059 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement, Owner shall pay fees in the amount of$8,566
for plan review of sewer and water plans,charges in the amount$9,700 necessary for wet ties.
3
Tract Map 5338
' 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 5338
• 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 5338
• 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 5338.
6
Tract Map 5338
• 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, Bullard/Grantland No. 1,
a municipal corporation a California corporation
By: AlLft, By: _
Michael T. Kirn Robert A.McCaffrey
Assistant Public Works Director President
APPROVED AS TO FORM
HILDA CANTU-MONTOY
City Attorney
By:
Ag Williams, Deputy
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
) ss.
COUNTY OF FRESNO )
On � � �- 2"T , 2005,before me, AUOLI KA LL"f ,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 ck
By:
R K b'-
(,Teputy
7
•Tract Map 5338
• Early Construction Agreement
Sewer,Water and Storm Drain
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF FRESNO,STATE OF CALIFORNIA
AND.IS DESCRIBED AS FOLLOWS:
Parcel 1
All that portion of Section 8,Township 13 South,Range 19 East,Mou6t Diablo Base and Meridian,according to
the map of the survey of said Section 8, recorded December 21, 1920, in Book 10 Page 33 of Record of
Surveys, records of said county, described as follows:
COMMENCING at a point 30 feet West of a point on the East line of said Section 8,which is 721.40 feet South
0025' West of the Northeast corner of said section 8,being the POINT OF BEGINNING;thence 862.96 West to
a point; thence 472 feet South to a point 892.91 feet West of the East line of Section 8;thence 862.91 feet
East to a point 30 feet West of the East line of said section 8; thence 472 feet North to the POINT OF
BEGINNING.
Together with the South 30 feet of that certain 60 foot strip of land delienated on that certain Record of
Survey Map recorded in Book 10 page 33 of Record of Survey Maps, lying adjacent to the North boundary of
said Parcel 1.
Excepting therefrom an undivided 1/2 interest in all oil gas and or minerals in and under said lands,together
with the right of the grantor its successors and/or assigns lessees, and legal representatives at all times to
enter on the above described lands and take all the usual,necessary or convenient means to bare walls,make
excavations and to remove all the oil,gas and or minerals herein.reserved and found thereon,as reserved in
the deed form Bank of America National Trust and Savings Association,a National Banking Association to Paul .
Newman and Therese Newman,husband and wife as jointtenants dated October 8, 1936 recorded October 9,
1936, in book 1511 page 291 of Official Records, document no. 24338..
Also excepting therefrom an undivided 1/2 interest in all oil,or minerals in and under said lands,together with
the right of the grantor,its successors and/or assigns lessees and legal representative at all times to enter on
the above described lands and take all the usual necessary or convenient means to bore wells, make
excavations and-to remove all the oil, gas and or minerals herein reserved and found found thereon, as
reserved in the deed from Paul Newman and Therese Newman, husband and wife,to Samuel Kootstm and
Winnie Kootstra, husband and wife as joint tenants dated November 16, 1936 recorded November 16,1936,in
book 1533 page 33 of Official Records, document No. 27365.
Parcel 2:
All that portion of Section 8,Township 13 South,Range 19 East,Mount Diablo Base and Meridian,according to
the map of the survey of said Section 8, recorded December 21, 1920 in Book 10 Page 33 of Record of
Surveys, records of said county, described as follows:
9
-Tract Map 5338
Early Construction Agreement
Sewer,Water and Storm Drain
EXHIBIT "A" (continued)
COMMENCING at a point 30 feet West of a point on the East line of said section 8,which is 1193.40 feet South
0125' West of the Northeast corner of said Section 8, being the POINT OF BEGINNING; thence 862.91 feet
West to a point; thence 472 feet South to a point 892.86 feet West of the East line of said Section 8;thence
862.86 feet East to a point 30 feet West of the East line of said section 8;thence 472 feet North to the POINT
OF BEGINNING.
Parcel 3:
All that portion of Section 8,Township 13 South,Range 19 East,Mount Diablo Base and Meridian,according to
the map of survey of said section 8 recorded December 21, 1920 in book 10 page 33 of record of surveys,
records of said county as follows:
COMMENCING 30 feet South and 677.27 feet West of the Northeast corner of said Section 8: thence West
647.27 feet; thence South 629.27 feet; thence East 647.22 feet; thence North 630.33 feet to the PLACE OF
COMMENCMENT.
Together with the North 30 feet of that certain 60 foot strip of land delienated on that certain Record of
Survey Map recorded in Book 10 page 33 of Record of Survey Maps, Fresno County Records, lying adjacent to .
the South boundary of said Parcel 3.
Parcel 4:
COMMENCING at a point which is North 89055" East 1540 feet from a point on the West line of the Northeast
quarter of Section 8,Township 13 South, Range 19 East, Mount Diablo Base and Meridian, according to the
map thereof recorded December 21, 1920, in Book 10 Page 33 of Record of Surveys, records of said county,
distant thereon 974 feet Northerly from the center of said Section 8;thence North 89055' East 213.72 feet to a
point;thence North 0025' East, 944 feet to a point;thence South 89055'West 215.74 feet to a point which is
1540.18 feet Easterly from the West line of the said Northeast quarter of said Section; thence South 0025'.
West 944 feet to the POINT OF COMMENCMENT.
Together with the South 30 feet of that certain 60 foot strip of land delienated on that certain Record of
Survey Map recorded in Book 10 page 33 of record of Survey Maps, Fresno County Records lying adjacent to
the North boundary of said Parcel 4.
Parcel 5:
COMMENCING at a point which is East 1324.29 feet from a point on the West line of the Northeast quarter of
Section 8,Township 13 South, Range 19 East, Mount Diablo Base and Meridian,according to the map thereof
December 21, 1920, in Book 10 Page 33 of Record of Surveys, records of said county,distant thereon 974 feet
Northerly from the center of said Section 8;thence East 215.715 feet to a point;thence North 0025' East 944
feet to a point; thence West 215.74 feet to a point, which is 1324.44 feet Easterly from the West line of the,
said Northeast quarter of said Section;thence South 0°25'West 944 feet to the POINT OF COMMENCEMENT.
10
-Tract Map 5338
• Early Construction Agreement
Sewer,Water and Storm Drain
EXHIBIT "A" (continued)
Together with the south 30 feet of that certain 60 foot strip of land delienated on that certain Record of
Survey Map recorded in Book 10 page 33 of Record of Survey Maps, Fresno County Records,lying adjacent to
the North boundary of said Parcel 5.
APN: 505-040-09 parcel 3 , 505-040-14 parcels 4 and 5, 505-040-15s parcel 1, 505-040-16 parcel 2
11
Tract Map 5338
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 June 20, 2005, in the office of the Fresno County Recorder,Document No.
20050135598 of which the Deed of Trust in by and between Bullard/Grantland No. 1,Inc., a
California corporation,McCaffrey Development,L.P., a California limited partnership and
the McCaffrey Group,Inc.,a California corporation, as Trustor,Fidelity National Title
Company, as Trustee, and Housing Capital Company, a Minnesota Partnership,as
Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest
thereto to the foregoing Declaration of Covenants, Conditions,Restrictions and Easements.
DATED: ���0���'� !Z— 92005
BENEFICIARY
Housing Capital Company, a Minnesota Partnership
By. IJA
'V/
7home'S G. v P
(Beneficiary to print/type Name and Title; and
attach Notary Acknowledgment)
8
i
STATE OF CALIFORNIA )
SS.
COUNTY OF FRESNO )
On October 12, 2005, before me,the undersigned, a Notary Public for the
State of California,personally appeared, Thomas G. Walker, 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 xpire January 21,#05-7
MICHELE L. HOGAN
CORVT*Nlon 11395535
Notary PubNe - CaNfornia
Fresno County
My Corfm.EVkes Jan 21,2007
THE McCAFFREY GROUP, INC. WELLS FARGO BANS, N.A. 0083
7020 N. VAN NESS BLVD. 1144l1210
'FRESNO; CX 93711'
Octl7 /05,.
PAY TO THE CITY OF ,-FRESNO **.*36, 325 00
ORDER OF .
THIRTY SIX THOUSAND THREE HUNDRED TWENTY FIVE AND 00/100*********
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DOLLARS
CITY%_ OF.".
FRESNO .,
2600 .FRESNO :STREET
FRESNO CA 93721(
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