HomeMy WebLinkAboutT-5433 - Agreement/Covenant - 10/6/2005 Recording Requested by:
Public Works Department I IIII III III I III II II IIII IIII I I III IIII I IIII II I IIIII
City of Fresno FRESNO County Recorder
No Fee-Gov't Code Section Robert O Werner
6103 and 27383 DOC— 2005-0167083
When Recorded,Mail to Tuesday, JUL 26, 2005 09:19:16
City Clerk Tt 1 Pd $0.00 Nbr-0001896168
City of Fresno EMF/RS/1-13
2600 Fresno Street
Fresno,CA. 93721-3623
•-------------------------- SPACE FOR RECORDERS USE ONLY ---------------------------
P.W. File 10853
EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION
FOR SEWER,WATER & STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 5433
THIS AGREEMENT is made as of .JULY Z 2005 between,EUROPEAN GROVE
AT FIG GARDEN,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.
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 10853
EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION
FOR SEWER,WATER & STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO. 5433
THIS AGREEMENT is made as of 10LY 2-_r) ,2005 between,EUROPEAN GROVE
AT FIG GARDEN,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 5433
Early Construction Agreement
Sewer,Water and Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 5433. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5433.
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 5433.
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-9051 through 10-C-9061,and FMFCD storm drain plans AE-
28-1 through AE-28-2 in upon the subject property,Owner agrees:
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Tract Map,5433
Early Construction Agreement 1
Sewer,Water and Storm Drain
1. If the final map for Tract Map 5433 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 l 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
$22,585.00 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement, Owner shall pay fees in the amount of
$11,177.00 for plan review of sewer and water plans, charges in the amount of $29,400.00
necessary for wet ties.
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Tract Map 5433
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 5433
Early Construction Agreement f
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
i
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 5433
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 5433.
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 5433
Early Construction Agreement
Sewer,Water&Storm Drain Improvements
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 EUROPEAN GROVE AT FIG GARDEN, LP.
a municipal corporation a California Limited Partnership
By: By:E EAN G OVE A FIG GARDEN,INC.
Michael T. Kirn a Cali rnia C or ti
Assistant Public Works Director
By:
APPROVED AS TO FORM Ke in J. asta os
HILDA CANTU-MONTOY Pr side
City Attorney --
By:
By: � J 'el'iard G. Wathen
A es Williams Secretary
De uty
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
) SS.
COUNTY OF FRESNO )
On c )Vl LN 2J� ,2005,before me, y V� ,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 Cle
By: k/i�
Deputy
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
_ 1
State of California
County of Fresno
On July 21, 2005 before me, Michelle C. DeWitt, Notary Public, personally appeared Kevin J. Castanos and
Richard G. Wathen
® personally known'to me- OR -
El 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.
ZtHELLE C.DEWITT
_ Comrnktlon# 1512843
61MVComm.
Notory Public-CWHomloFresno County Expkes Sep 12,2008
Signatur of Notary Public
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) Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Naive:
❑ Individual ❑ Individual
❑ Corporate Officer ❑ Corporate Officer
Title(s): Title(s):
❑ Partner- ❑ Limited ❑ General ❑ Partner- E] Limited E] General
0Attorney-in-Fact
E] Attorney-in-Fact
Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer is Representing: Signer is Representing:
RIGHT THUMB RIGHT THUMB
OF SIGNER OF SIGNER
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Early Construction Agreement For.Sewer, Water& Storm Drain Improvements For Tract Map
No. 5433
.Page 8
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on April 5, 2005 , in the office of the Fresno County Recorder as
o
Document No. 2005-0074469 of which the Deed of Trust in by and between:
European Grove at Fig Garden, LP, a California limited partnership, as Trustor,.
Chicago Title Company , as.Trustee, and Guaranty Bank , as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Early Construction Agreement For Sewer, Water& Storm Drain Improvements For
Tract Map No. 5433.
DATED: July 20, 2005
BENEFICIARY
Guaranty Bank
By: Uld
Robert A. Miller, Jr., Senior Vice President
By:
(Beneficiary to print/type Name and Title; and
attach Notary Acknowledgement)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
( State of California
County of
Sac rame ,+0 ss.
On \ ZO Z� before me, Lest k e- `—`a (JLC
Date Name and Title of Officer(e.g.,"Jane Doe,Notary Public")
personally appearedObe.r-4-- >� . ► ' l t I1(et� , >r .
Name(s)of Signer(s) _
personally known to me
proved to. me on the basis of satisfactory
evidence
to be the person(&) whose name(& is4m
�. subscribed to the within instrument and
LESMElE1►�PUCKETT � acknowledged to me that he/64o4l;ey executed
Commission#1473621 l the same in his/hQr/hG4 authorized
-� Nokuy Pub1c-Cai110miG capacity(io&4 and that by his/befAaeir
socramerADCourdy signature(*on the instrument the person(s), or
mycw=.Expmmor2.204 the entity upon behalf of which the person(,
acted, executed the instrument.
WIT E S .han an offici se .
Signature of Notary Public -
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: Oar(y p/15iYuC;6V\ gF1120W,6,VC�
Document Date: Number of Pages: TS
Signer(s)Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual Top or thumb here
❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑General
❑ Attorney-in-Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 1999 National Notary Association•9350 De Soto Ave.,P.O.Boz 2402•Chatsworth,CA 91313-2402•www.nationalnotary.org Prod.No.5907 Reorder.Call Toll-Free 1-800-876-6827 _
Tract Map 5433
Early Construction Agreement
Sewer,Water and Storm Drain
EXHIBIT "A"
PARCEL 1:
Lot 426 of Figarden Subdivision No. 2,,according to the map thereof recorded in Book 9 Page 8 of
Plats, Fresno County Records.
APN: 509-030-03
PARCEL 2:
Lot 341 of Figarden Subdivision No. 2; according to the map thereof recorded in Book 9 Page 8 of
Plats, Fresno County Records.
APN: 509-030-11
PARCEL 3:
of Figarden Subdivision No. 2, according to the map thereof recorded in Book 9 Page 8 of Plats,
Fresno County Records.
APN: 509-030-01
PARCEL 4:
Lots 342, 365 to 371, inclusive, and Lots 373 to 380, inclusive, all in Figarden Subdivision No. 2,
according to the map thereof recorded in Book 9 Page 8 of Plats,Fresno County Records.
Excepting one-half of all minerals, oil, gas and hydrocarbon rights without right of surface entry, as
reserved by Gateways Mental health Center Endowment Fund in the Deed recorded_ August 28,
1968 in Book 5608 Page 1 of Official Records, Document No. 60629.
APN: 509-030-08s, 09s, 10s and 12s
PARCEL 5:
Lots 381 to 404, inclusive, all in Figarden Subdivision No. 2, according to the map thereof recorded
in Book 9 Page 8 of Plats, Fresno County Records.
Together with that portion of Meander Avenue and Gates Avenue(abandoned) lying adjacent to
Lots 381 to 392 inclusive and Lot 404 as abandoned by order of abandonment recorded June 14,
1956 as Document No. 43462, Official Records, Fresno County Records, which would pass by a
conveyance of said land under Section 1112 and 831 of the Civil Code.
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Tract Map 5433 ,
Early Construction Agreement
Sewer,Water and Storm Drain
EXCEPTING THEREFROM one-half of all minerals, oil, gas and hydrocarbon rights without right
of surface entry as reserved by Gateways Mental Health Center Endowment Fund in deed recorded
August 28, 1968-in Book 5608 Page 1, as Document No. 60629, Official Records, Fresno County
Records. .
APN: 509-030-07s
PARCEL 6:
Lots 343, 344 and the West half of Lot 346, all of Lot 347 Lots 351 to 364, inclusive, all in Figarden
Subdivision No. 2, according to the map thereof recorded in Book 9 Page 8 of Plats, Fresno County
Records.
APN: 509-030-16s
PARCEL 7: _, -
Lot 345 and the East half of Lot 346 of Figarden Subdivision No. 2, according to the map thereof
recorded in Book 9 Page 8 of Plats,Fresno County Records.
APN: 509-030-13
PARCEL 8:
Lots 405 to 416, inclusive, Lot 416A, Lot 417A,Lots 417 to 425, Lots 427 and 428 of Figarden
Subdivision No. 2, according to the map thereof recorded in Book 9 Page 8 of Plats, Fresno County
Records.
EXCEPTING THEREFROM one-half of all minerals, oil, gas and hydrocarbon rights without right
of surface entry,as reserved by Gateways Mental Health Center Endowment Fund in the Deed
recorded August 28, 1968 in Book 5608 Page 1 of Official Records, Document No. 60629.
PARCEL 9:
Lot 566 of Figarden Subdivision No. 2, according to the map thereof recorded in Book 9 Page 8 of
Plats, Fresno County Records.
EXCEPTING THEREFROM one-half of all minerals, oil, gas and hydrocarbon rights without right
of surface entry, as reserved by Gateways Mental Health Center Endowment Fund in the Deed
recorded August 28, 1968 in Book 5608 Page 1 of Official Records, Document No. 60629.
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Tract Map 5433
Early Construction Agreement
Sewer,Water and Storm Drain
PARCEL 10:
Lots 337 to 340;inclusive, of Figarden Subdivision No. 2, according to the map thereof recorded in
Book 9 Page 8 of Plats, Fresno County Records.
EXCEPTING THEREFROM one-half of all minerals, oil, gas and hydrocarbon rights without right
of surface entry, as reserved by Gateways Mental Health Center Endowment Fund in the Deed
recorded August 28, 1968 in Book 5608 Page 1 of Official Records, Document No. 60629.
PARCEL 11:
Lots 348 and 349 of Figarden Sub. No. 2, in the City of Fresno, County of Fresno, State of.
California, according to the map thereof recorded March 3, 1921 in Plat Book 9 Page 8,in the office
of the County Recorder of said Fresno County, California.
APN: 509-030-14
PARCEL 12:
Lots 350 and 372 in Figarden Subdivision No. 2, according to the map thereof without right of
surface entry, as reserved by Gateways Mental Health Center Endowment Fund in the deed recorded
August 28, 1968, in Book 5608, Page 1 of Official Records, Document No. 60629, Fresno County
Records.
APN 509-030-15s and 37s
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