HomeMy WebLinkAboutT-5374 - Agreement/Covenant - 4/10/2006 u` IIIIIIIIIIIINNIIIIIIIIIIIIIIIIIIIIIIIi
Recording Requested by: I III II III
Public Works Department FRESNO County Recorder
City of Fresno Robert C. Werner
No Fee-Gov't Code Section
6103 and 27383 DDC— 2005-0235569
Wednesday, OCT 05, 2005 09:12:54
When Recorded,Mail to
City Clerk Tt l Pd $0,00 Nbr-0001976150
City of Fresno CRR/R3/1-9
2600 Fresno Street
Fresno,CA. 93721-3623
.__________________________ SPACE FOR RECORDERS USE ONLY .__________________________
P.W. File 10832/10833
EARLY CONSTRUCTION AGREEMENT
FOR SEWER,WATER AND STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO.5374 & 5313
THIS AGREEMENT is made as of 4nf:T- 4-- , 2005 between, BEAZER HOMES
HOLDINGS,CORP.,a Delaware 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.
A
Tract Map 5374&5313
Early Construction Agreement
Sewer,Water and Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 5374 & 5313 .
Owner has applied for approval of a final tract map pertaining to the subject property designated
as Tract Map 5374 & 5313.
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 5374 & 5313.
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-9081 through 10-C-9093,and FMFCD storm drain plans BD-
12-1 through BD-12-5 in upon the subject property,Owner agrees:
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Tract Map 5374&5313
Early Construction Agreement
Sewer,Water and Storm Drain
1. If the final map for Tract Map 5374&5313 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
$20,796.00 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement,Owner shall pay fees in the amount of$9,747.00
for plan review of sewer and water plans,charges in the amount$35,400.00 necessary for wet ties.
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Tract Map 5374&5313
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 5374 & 5313 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 5374 & 5313.
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.
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Tract Map 5374&5313
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.
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Tract Map 5374&5313
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 5374 & 5313.
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.
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Tract Map 5374&5313
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 BEAZER HOMES HOLDINGS,CORP.
j / J A DELAWARE CO PORATION
By; By: �/
TL /
Michael T. Kirn Walter Diamond
Assistant Public Works Director Vice President, Land Acquisition
Northern California Division
APPROVED AS TO FORM
HILDA CANTU-MONTOY
City Attorney
By:
Agixe Williams
Dep y
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
)ss.
COUNTY OF FRESNO )
r.
On �� ['�t h , 2005, before me, ► �` ? r t ,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. I.LISCH
City Clerk
By ,
Deputy
7
STATE OF CALIFORNIA )
� _5n� )
COUNTY OF ) SS.
x Y Y...
CIC before me, / t�
a Notary Public in and for said County and State, personally appeared
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 h d and offici seal.
Signature of Notary S.ANTHONY
-+ COMM.#1444988
NOTARY PUBLIC-CALIFORNIA,-
FRESNO COUNTY
Q by Comm.Expires Oct 12.2007
STATE OF CALIFORNIA )
SS.
COUNTY OF )
On before me,
a Notary Public in and for said County and State, personally appeared
personally known to me (or proved to me on the 6"s of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknbvyledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/ he'tr signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s)acted, executed the inst ent.
WITNESS my hand and official seal.
Signature of Notary
EXTNOT2•-09/27/96bk
Tract Map 5374&5313
Early Construction Agreement
Sewer,Water and Storm Drain
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:
Parcel l: APN 481-050-07
That portion of the Southwest quarter of Section 17,Township 14 South,Range 21 East,Mount
Diablo Base and Meridian,according to the Official Plats thereof,of wit:
Beginning at the Southwest corner of the Southeast quarter of the Southwest quarter of said
Section 17; thence North along the West line of the Southeast quarter of the Southwest quarter
and of the Northeast quarter of the Southwest quarter of said Section 17,a distance of 1367.2 feet;
thence North 89'17'East parallel with the North line of said Southeast quarter of the Southwest
quarter of said Section, 738.9 feet, more or less to the center of an irrigation canal; thence
following the center line of said canal the following courses and distances;South 31'23'West 49.7
feet; thence South 10'02' West 412 feet; South 00'05' East 922.4 feet,more or less,to the South
line of said Section 17;thence West along the South line of said Section 17,a distance of 618.5 feet
to the point of beginning.
Excepting therefrom that portion more particularly described as follows:
Commencing at the West quarter corner of said Section 17;thence South 89'55'26" East,along
the North line of said Southwest quarter,a distance of 1350.46 feet to a point on the Westerly line
of the Lands of Eshleman as agreed upon in an instrument recorded December 10, 1890 in Book
M of Covenants,at page 318 et sec.Fresno County Records;thence South 00'25'47" East,along
said Westerly line,a distance of 1282.37 feet to the True Point of Beginning;thence continuing
South 00°25'47" East,along said Westerly line,a distance of 18.72 feet;thence South 89°28'48"
East, a distance of 110.02 feet; thence North 00°25'47" West, parallel with and 110.00 feet
Easterly of said Westerly line of the Lands of Eshleman,a distance of 19.20 feet to a point on the
North line of the granted to A.A.Andersen by an instrument recorded August 7, 1919,in Book
698 of Deeds,Page 178,Fresno County Records;thence North 89'43'46" West,along said North
line,a distance of 110.01 feet to the True Point of Beginning.
Parcel 2: APN 481-050-06
The North half of the Southwest quarter of the Southwest quarter of Section 17, Township 14
South,Range 21 East,Mount Diablo Base and Meridian,according to the Official Plats thereof.
APN: 481-050-06,481-050-07
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