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HomeMy WebLinkAboutT-5455 - Agreement/Covenant - 2/7/2006 z Recording Requested by: IIII III III I III II LII III i IIII III I IIII I IIII 1�I IIII I� Public Works Department FRESNO. County Recorder City of FresnoRobert Werner No Fee-Gov't Code Section DOC-.. 2005-0291506 6103 and 27383 ; Tuesday, DEC 13; 2005 10.13:10 When Recorded,Mair to. Tt 1 Pd $0.00 Nbr=0002041404 City Clerk. J2GlR2/2-11' . . City of Fresno 2600 Fresno Street . Fresno, CA. 93721-3623 ----------------------- --- SPACE FOR RECORDERS USE ONLY :------------------=--=--- P.W. File 10866 EARLY CONSTRUCTION AGREEMENT WITH SUBORDINATION FOR WATER &STORM DRAIN IMPROVEMENTS FOR TRACT MAP NO. 5455, THIS AGREEMENT is made as of Z / 2005 between,European Grove at Fig Garden III,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 5455 Early Construction Agreement Water and Storm Drain D. Owner has filed and the City has approved Tentative Tract Map 5455. Owner has applied for approval of a final tract.map pertaining to the"subject property designated as Tract Map 5455. 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 5455. 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 Water Job 5058,and FMFCD storm drain plans AE-29-1 through AE-29- 2 in upon the subject property, Owner agrees: 2 Tract Map 5455 Early.Construction Agreement Water and Storm Drain 1. If the final map for Tract Map 5455 for any reason is not approved by the City and' recorded by_the County Recorder within six.months after, the executionof 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 $13,180.00 for the inspection of the installation of improvements described herein: 6. Upon execution of this Agreement,Owner shall pay fees in the amount of$5,585.00 for plan review of sewer and water plans,charges in the.amount of$15,600.00 necessary for wet ties. 3 Tract Map 5455 Early Construction Agreement Water and Storm Drain 7. This Agreement shall in no way be construed as agrant 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. S. 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 withintwenty-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 5455 Early Construction Agreement 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, andthe 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 ahe 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 5455 Early Construction Agreement 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 5455. 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 5455 Early Construction Agreement' 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 European Grove at Fig Garden III, LP a municipal corporation a California Limited Partnership B � D ` �CJId en/ By: E ro can GWatigarden III,IncyMichael T. Kirn Ge er I Part Assistant Public Works Director By: APPROVED AS TO FORM Ke in J. as os Pr si nt HILDA'CANTU-MONTOY . I . City Attorney... By . and G.Wathen.:' By: Secretary AgnesWilliams Depot CLERK'S CERTIFICATION STATE OF CALIFORNIA ) ss. COUNTY OF FRESNO On � M I' �2 )7�., 2005, before me, S� ! ,p e r s o n a l l y 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 har�d.'and°Afcial seal:: REBECCA" S H�``�•Y© �''M City C k q By: ' , - ' rkr�l//l�Ili�lt►►��+E 7 ` CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno::. , On December 7, 2005 before.me, Michelle C. DeWitt,Notary Public, personally appeared Kevin J. Castanos and Richard G. Wathen ® 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. MICHELLE C.DEwlrr WITNESS my hand and official seal. Commission# 1512843 -ae Notary Public-California Fresno County - - My Comm.Expires Sep 12,2008 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 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 Name: ❑ Individual ❑ Individual ❑ Corporate Officer ' ❑ Corporate Officer Title(s): Title(s): ❑ Partner- ❑ Limited ❑ General ❑ Partner ❑ Limited ❑ General ❑ Attorney-in-Fact , ❑ 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 Tract Map 5455 Early Construction Agreement - Water and Storm Drain SUBORDINATION The undersigned as holder of.the beneficial interest in and under that certain Deed of Trust recorded April 29,2005in the office of the Fresno County Recorder, .Document No. 20050096153 of which the Deed of Trust in by and between European Grove at Fig Garden III,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 Declaration of Covenants, Conditions, Restrictions and Easements. DATED: Aerr�.6er- /S 16U -2005 BENEFICIARY GuBank By: 2 aber4 A. M-7le-r- Jr, 9r, Uiee_ 13eside� By: (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) 8 CALIFORNIA ALL-PURPOSE'ACKNOWLEDGMENT i • State of.California ) ss. County of t-5-4 erOLM e At IL 0 On IVo U /S- �0 0 S before me, Xi-Lv ved4s/V6to6a hili� ) ate - )) - Name and Title of Officer(e.g.,"Jane Die,Notary Publi personally appeared G bar l A. MI'll e-r. U r. ). Name(s)of Sig er(s) ) Xpersonally known to ❑ proved to me on the basis of satisfactory evidence ) to be the person whose name(s) . is/arQ- subscribed ..to the within instrument and acknowledged to me that he/she414ey executed the same in his/494he# I authorized ) BARBARA J.KENNEDY capacity(jj, and that by : his/4e4A4� Commission#1506826 signature(,<on the instrument the personM, or -d NotoryPubllc-Callfolrnla the entity upon behalf of which the personfA San Joaquin County acted, executed the instrument. My Comm.Expires Aug 11,2008 PORN WITNESS my hand and official seal. Place Notary Seal Above SigVature of NotaryPublic el ) 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 andreattachment 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 ) Signer's Name: 11 Z ❑ 'Individual ) Top of thumb here Corporate Officer,—Title(s): ED Partner—❑ Limited ❑ General ❑: Attorney in Fact ❑ Trustee ❑ Guardian or Conservator Other: , Signer Is Representing: ) 01999 National Notary Association•9350 DeSoto 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 5455 Early Construction Agreement Water and Storm Drain EXHIBIT «A„ PARCEL 1: - City of Fresno Lots 837 to 840,ni inclusive, of Bullard Lands Irrigated Subdivision No. 6, according to the map thereof recorded in Book 8, Page 25 of Plats, Fresno.County Records. Together with that portion of North Brawley Avenue as abandoned which would accrue by - operation of law. APN: 415-027-10s PARCEL 2: All of Tract No. 1720, according to the map thereof recorded in Volume 20, Page 51 of Plats, Fresno County Records. EXCEPTING THEREFROM one-half of all minerals,oil, gas and hydrocarbon rights without right of surface entry, as reserved in the deed recorded.August 28, 1968, as Document No. 60629, in Book 5608, Page l.of Official Records. APN: 415-101-10s 9 . 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T 0 Check El Cash 0 Money Order E Direct Deposit E Credit Card s4 s °herr , r � rteYs � s City of fires By: Please Sign Name hone Number City of,Fresno Finance Division White - Finance Copy Yellow- Customer Copy Pink - Book Copy Goldnr -,$i s n Copy T INSTRUCTIONS ON BACK- QJ N ctlip ez t� XW tT 4. U-3 LLI V3 On- 5gcc U. V" tr-7 LU-3 - Cv i!�— 7 - .. .rte. t� :.M�- 'r• U"? � U... - F... �p - UJ L7 CEJ C-J