HomeMy WebLinkAboutT-5414 - Agreement/Covenant - 4/4/2006 Recording Requested by: IIII III III I III II II IIII I I VIII III III I IIII I III II III
Public Works Department
City of Fresno FRESNO County Recorder
No Fee-Gov't Code Section Robert C, Werner
6103 and 27383 DOC— 2005-0113724
When Recorded,Mail to Monday, MAY 23, 2005 14:48:16
City Clerk Tt 1 Pd $0.00 Nbr-0001833411
City of Fresno J Z G I R 2/1-9
2600 Fresno Street
Fresno,CA. 93721-3623
--------------------------- SPACE FOR RECORDERS USE ONLY -_-__________________------
P.W.File 10792
EARLY CONSTRUCTION AGREEMENT
FOR SEWER, WATER & STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 5414
THIS AGREEMENT is made as of MAY 23 ,2005 between,KB Home South Bay
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 5414
Early Construction Agreement
Sewer,Water and Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 5414. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5414.
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 5414.
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-8881 through 10-C-8882,and FMFCD storm drain plans CI-8-
1 through CI-8-2 in upon the subject property, Owner agrees:
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Tract Map 5414
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
$11,606 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement, Owner shall pay fees in the amount of$5,209
for plan review of sewer and water plans,charges in the amount$6,600 necessary for wet ties.
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Tract Map 5414
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.
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Tract Map 5414
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 5414
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 5414.
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Tract Map 5414
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, KB Home South Ba Inc.,
a municipal corporatiioon.�- ,) a Californ' C r ation
By:
={!{ I 1 K t A� By:
Michael T. Kirn P.A. Dent,III
Assistant Public Works Director Senior Vice President
APPROVED AS TO FORM
HILDA CANTU-MONTOY
City Attorney
By:
Agn Williams
Deputy
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
) ss.
COUNTY OF FRESNO )
On b fi 0 23 ,2005,before me, al M LE ykl ,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) istare 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 irk
By:
Deputy
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Tract Map 5414
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 4 OF PARCEL MAP NO. 3346,PER MAP RECORDED NOVEMBER 12, 1976,IN BOOK 22 OF
PARCEL MAPS,AT PAGE 40,FRESNO COUNTY RECORDS,SITUATED IN THE SOUTHEAST QUARTER OF
THE SOUTHEAST QUARTER OF SECTION 27,TOWNSHIP 13 SOUTH,RANGE 19 EAST,MOUNT DIABLO
BASE AND MERIDIAN,IN THE CITY OF FRESNO,COUNTY OF FRESNO,STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF;
EXCEPTING THEREFROM AN UNDIVIDED ONE-HALF INTEREST IN ALL OIL,GAS AND OTHER
HYDROCARBON SUBSTANCES AND MINERALS,AS RESERVED IN THE DEED DATED JANUARY 20, 1942
FROM MAYME S.JUETT AND J.G.JUETT,WIFE AND HUSBAND TO ARTHUR C.NELSON AND JEANETTE
D.NELSON,HUSBAND AND WIFE,AS JOINT TENANTS,RECORDED JANUARY 23, 1942 IN BOOK 2008,
PAGE 112 OF OFFICIAL RECORDS;
NOTE:SURFACE RIGHTS OF ACCESS TO THE FIRST 500 FEET MEASURING VERTICALLY DOWNWARD
FROM THE SURFACE OF THE HEREINABOVE DESCRIBED LAND HAVE BEEN SURRENDERED BY
QUITCLAIM DEED RECORDED JULY 22, 1983,AS INSTRUMENT NO.83-65523,OFFICIAL RECORDS,
BETWEEN MARTHA JOHANN HOOVER,AS GRANTOR AND JEROME DEYOUNG AND PAULA DEYOUNG
AS GRANTEE.
TOGETHER WITH THAT PORTION OF THE SOUTHWEST QUARTER OF SAID SOUTHEAST QUARTER OF
SECTION 27,MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING FOR REFERENCE AT THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER OF
SECTION 27;
THENCE,SOUTH 00°36'03"WEST,ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER,A
DISTANCE OF 1321.73 FEET,TO THE NORTHWEST CORNER OF SAID SOUTHWEST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 27;
THENCE,SOUTH 89-29'11"EAST,ALONG THE NORTH LINE OF SAID SOUTHWEST QUARTER OF THE
SOUTHEAST QUARTER,A DISTANCE OF 1316.41 FEET,TO THE NORTHEAST CORNER OF SAID
SOUTHWEST QUARTER,OF THE SOUTHEAST QUARTER,WHICH POINT IS THE NORTHWEST CORNER
OF SAID PARCEL 4 OF PARCEL MAP NO.3346,AND THE TRUE POINT OF BEGINNING OF THE PORTION
TO BE DESCRIBED;
THENCE,SOUTH 00°40'.01"WEST,ALONG THE EAST LINE OF SAID SOUTHWEST QUARTER,OF THE
SOUTHEAST QUARTER,AND ALONG THE WEST LINE OF SAID PARCEL 4,A DISTANCE OF 539.58 FEET,
TO THE NORTHEAST CORNER OF THAT CERTAIN PARCEL OF LAND CONVEYED TO FRESNO
METROPOLITAN FLOOD CONTROL DISTRICT PER GRANT DEEDS RECORDED APRIL 24, 1991 AS
DOCUMENT NO.91048312,91048313,AND 91048314,FRESNO COUNTY RECORDS;
THENCE,NORTH 89°29'30"WEST,ALONG THE NORTH LINE OF SAID LAND CONVEYED TO FRESNO
METROPOLITAN FLOOD CONTROL DISTRICT,A DISTANCE OF 209.70 FEET;
THENCE,NORTH 00°30'49"EAST,A DISTANCE OF 109.96 FEET;
THENCE,AT RIGHT ANGLES,SOUTH 89-29'11'9 EAST,A DISTANCE OF 117.81 FEET;
THENCE,NORTH 00°39'30"EAST,A DISTANCE OF 429.64 FEET,TO A POINT ON SAID NORTH LINE OF
THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27;
THENCE,SOUTH 89-29'11"EAST,ALONG SAID NORTH LINE,A DISTANCE OF 92.24 FEET,TO
THE TRUE POINT OF BEGINNING.
8
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ALL-PURPOSE ACKNOWLEDGMENT
State of California
SS.
County of
On AAA,a4-/ 10 2CYJ< before me, -t-3 . A-Ns ),j "i3Ci-C ,
(DATE) (NOTARY)
personally appeared `P L& t_ you U S'ry s. Liu---n\A —
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
signatures(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
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® NOTARY PUBLIC-CALIFORNIA WITNESS my hand and official seal.
Fresno County
V.y Cram.Expires Feb.3,200B
NOTARY'S SIGNATURE
OPTIONAL INFORMATION
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
edgment to an unauthorized document.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
CORPORATE OFFICER L bq�J�,Ly C[�A7 S'l�x l«ldwl �-�� C'AIT
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) Q
❑ ATTORNEY-IN-FACT NUMBER OF PAGES
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
DATE O DOCUMENT
❑ OTHER:
OTHER
SIGNER IS REPRESENTING: RIGHT THUMBPRINT
NAME OF PERSONS)OR ENTITY(IES)
OF E
SIGNER o
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