HomeMy WebLinkAboutT-5503 - Agreement/Covenant - 2/15/2008 (2) Recording Requested by.-
Public
y:Public Works Department $ County Reorder
Citv of Fresno
No Fee-Gov't Code Section Robert C, Werner
6103 and 27383 DEC— 2007-0151761
When Recorded,Mail to 00
Thursday, AUG 09, 27 15:39:42
Citv Clerk Ttl Pd $0,09 *r-0092575973
City of Fresno JZG/R3/1-12
2600 Fresno Street
Fresno,CA. 93721-3623
--------------------------- SPACE FOR RECORDERS USE ONLY ---------------------------
P.W.File 11102
EARLY CONSTRUCTION AGREEMENT
FOR SEWER,WATER &STORM DRAIN IMPROVEMENTS
FOR TRACT MAP NO.5503
THIS AGREEMENT is made as of 1 5 ,2007 between,LENNAR FRESNO,
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 lap 5503
Early Construction Agreement
Sewer,Water&Storm Drain
D. Owner has filed and the City has approved Tentative Tract Map 5503. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5503.
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 5503.
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 inspections 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-10680 through 10-C-10683,and F:NIFCD storm drain plans
IIH-21-1 through BII-21-2 in upon the subject property,Owner agrees:
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Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
1. If the final map for Tract Map 5503 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 I 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
$12,456 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement,Owner shall pay fees in the amount of$6,468
for plan review of sewer and water plans,charges in the amount$8,000 necessary for wet ties.
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Tract Map 5503
Early Construction Agreement
Sewer,Water&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 5503 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 5503. 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 5503
Early Construction Agreement
Sewer,Water&Storm Drain
When the surfacing on any existing street is disturbed, this surfacing shall he 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. Indemnification.To the furthest extent allowed by law,Owner shall indemnify,
hold harmless and defend City and each of its officers,officials,employees,agents and volunteers
from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in
contract,tort or strict liability,including but not limited to personal injury,death at anytime and
property damage) incurred by City,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 or the
performance of any or all work to be done in and upon the street rights-of-way in said Parcel
Map and upon the premises adjacent thereto pursuant to this Agreement. Owners obligations
under the preceding sentence shall apply regardless of whether (honer or any of its officers,
officials, employees or agents are passively negligent, but shall not apply to any loss, liability,
fines,penalties,forfeitures,costs or damages caused by the active orsole negligence,or the willful
misconduct,of City or any of its officers, officials, employees, agents or volunteers. If Owner
should subcontract all or any portion of the services to be performed under this Agreement,
Owner shall require each subcontractor to indemnify,hold harmless and defend City and each
of its officers, officials, employees, agents and volunteers in accordance with the terms of the
preceding paragraphs.
Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
This section shall survive termination or expiration of this Agreement.
11. Insurance. Throughout the life of this Agreement, Owner shall pay for and
maintain in full force and effect all policies of insurance described in this section with an
insurance company(ies) either (i) admitted by the California Insurance Commissioner to do
business in the State of California and rated not less than "A-VII" in Best's Insurance Rating
Guide, or (ii) authorized by CITY'S Risk Manager. The following policies of insurance are
required:
(a)COMMERCIAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01 and shall include insurance for bodily injury, property
damage and personal and advertising injury with coverage for premises and operations
(including the use of owned and non-owned equipment), products and completed operations,
contractual liability (including imdemnity obligations under this Agreement),with limits of
liability of not less than $5,000,000 per occurrence for bodily injury and property damage,
$1,00(),000 per occurrence for personal and advertising injury and $5,000,000 aggregate for
products and completed operations.
(b) COMMERCIAL AUTOMOBILE LIABILITY insurance wbich
shall be at least as broad as the most current version of Insurance Services Office(ISO)
Business Auto Coverage Form CA 00 01 and shall include coverage for all owned,hired,and non-
owned automobiles or other licensed vehicles(Code 1 -Any Auto) ,with combined single limits
of liability of not less than$5,000,000 per accident for bodily injury and property damage.
(c) WORKERS' COMPENSATION insurance as required under the California
Labor Code.
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Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
(d) EMPLOYERS LIABILITY with minimum limits of liability of not less than
$1,000,000 each accident,$1,000,000 disease policy limit and$1,000,000 disease each employee.
Owner shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and Owner shall also be responsible for payment of any self-insured
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted
30 calendar day written notice in favor of City of policy cancellation of coverage,except for the
Workers' Compensation policy which shall provide a 10 calendar day written notice of such
cancellation of coverage. In the event any policies are due to expire during the term of this
Agreement,Owner shall provide a new certificate evidencing renewal of such policy not less than
15 calendar days prior to the expiration date of the expiring policy(ies).Upon issuance by the
insurer,broker,or agent of a notice of cancellation in coverage,Owner shall file with City a new
certificate and all applicable endorsements for such policy(ies).
The General Liability and Automobile Liability insurance policies shall be written
on an occurrence form and shall name City, its officers, officials, agents, employees and
volunteers as an additional insured.Such policy(ies) of insurance shall be endorsed so Owners
insurance shall be primary and no contribution shall be required of City. Any Workers
Compensation insurance policy shall contain a waiver of subrogation as to City, its officers,
officials,agents,employees and volunteers.Owner shall have furnished City with the certificate(s)
and applicable endorsements for ALI. required insurance prior to City's execution of the
Agreement.Owner shall furnish City with copies of the actual policies upon the request of Citys
Risk Manager a t any time during the life of the Agreement or any extension,and this requirement
shall survive termination or expiration of this Agreement. If at any time during the life of the
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Tract Map 5503
Early Construction Agreement
Sewer,water&Storm Drain
Agreement or any extension, Owner fails to maintain the required insurance in full force and
effect,all work under this Agreement shall be discontinued immediately,and all payments due
or that become due to Owner shall be withheld until notice is received by City that the required
insurance has been restored to full force and effect and that the premiums therefore have been
paid for a period satisfactory to City.Any failure to maintain the required insurance shall be
sufficient cause for City to terminate this Agreement. If Owner should subcontract all or any
portion of the services to be performed under this Agreement, Owner shall require each
subcontractor to provide insurance protection in favor of City,its officers,officials,employees,
volunteers and agents in accordance with the terms of each of the preceding paragraphs,except
that the subcontractors`certificates and endorsements shall be on file with Owner and City prior
to the commencement of any work by the subcontractor.
12. Notices Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally
or deposited into the United States mail,with postage prepaid,addressed to the party to which
notice is to be given at the party's address set forth on the signature page of this Agreement or
at such other address as the parties may from time to time designate by written notice.
13. Interpretation. The parties acknowledge that this Agreement in its final form is
the result of the combined efforts of the parties and that,should any provision of this Agreement
be found to be ambiguous in any way,such ambiguity shall not be resolved by construing this
Agreement in favor of,or against any party,but rather by construing the terms in accordance
with their generally accepted meaning.
14. Governing Law and Venue. This Agreement shall be governed by,and construed
and enforced in accordance with,the laws of the State of California. Venue for purposes of the
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Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
filing of any action regarding the enforcement or interpretation of this Agreement and any rights
25
and duties hereunder shall be Fresno,California.
15. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and integrated
agreement between the parties with respect to the subject matter hereof and supersedes all prior
negotiations, representations or agreements, either written or oral. this Agreement may be
modified only by written instrument duly authorized and executed by both parties.
16. The provisions of this improvement Agreement are severable. The invalidity or
unenforceability of any one provision or part thereof shall not affect the validity or invalidity of
any other provisions.
The parties have executed this Agreement on the day and year first above written.
/N
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Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
THE FOREGOING shall burden thesubject 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, LENNAR F SNO, NC.,
a municipal corporation a lifor ' corpor so
By: By:
Scott Mozier 'chael P.Slater
Assistant Public Works Director Vice President
APPROVED AS TO FORM
,JAMES C.S CHEZ
City Attor y
B ,
5 tic:l-t
Deputy ?���'
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )ss.
CITY OF FRESNO
On 2407,before me,
personally appeared Scott Mozier,Assistant Public Works Director, personally known to a(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 which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
REBECCA E. KLISCH
City Clerk
Bv: 9A&�W�
Deputy
10
STATE OF CALIFORNIA
COUNTY OFSY1C7
On t(,( ' ZGY�� before me, Re. 1 Yl!1G Cf
1-13
Notary Public,personally appeared ""'"'- J "t
*Frsunally 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 helshe/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
P. E. BENNETT person(s)acted,executed the instrument.
COMM. #1509843 --j
m 401 ARY PUSL1C-CALIFORNIA�
FRESNO COUNTY WITNESS my hand and official seat.
~ P my Comm.Expires Sept.12,2008
(This area for official notarial seal)
DESCRIPTION OF ATTACHED DOCUMENT
DESCRIPTION OF DOCUMENT(OP TONAL.
STATE OF CALIFORNIA
COUNTY OF
On, before me,
Notary Public,personally appeared
( )personally known to me-OR-( )proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)
islare subscribed to the within instrument and acknowledged to
me that he/shelthey executed the same in his/her/their authorized
capacity(ies),and that by hislheritheir 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.
(This arca for official notarial seal)
DESCRIPTION OF ATTACHED DOCUMENT
DESCRIPTION OF DOCUMENT OPTIONAL)
Tract Map 5503
Early Construction Agreement
Sewer,Water&Storm Drain
EXHIBIT"A"
The land referred to herein is situated in the State of California,County of Fresno, Unincorporated
Area,and is described as follows:
PARCEL 1:
THAT PORTION OF LOT 8, HENRIETTA RANCHO, IN THE CITY OF FRESNO,COUNTY OF FRESNO,
STATE OF CALIFORNIA,ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 2, PAGE 20,
OF PLATS, FRESNO COUNTY RECORDS, LOCATED IN THE NORTHWEST QUARTER OF SECTION
16,TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN,ACCORDING
TO THE OFFICIAL PLAT THEREOF MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT, NORTH, PARALLEL WITH THE WEST LINE OF SAID SECTION 16,A
DISTANCE OF 516.80 FEET AND SOUTH 88'58'00"EAST,A DISTANCE OF 30.00.FEET FROM THE
WEST QUARTER CORNER OF SAID SECTION 16;THENCE CONTINUING SOUTH 88'59'00"EAST,
A DISTANCE OF 339.20 FEET;THENCE NORTH,PARALLEL WITH THE WEST LINE OF SAID
SECTION 16,A DISTANCE OF 148.00 FEET;THENCE NORTH 88'59'00"WEST,A DISTANCE OF
339.20 FEET;THENCE SOUTH PARALLEL WITH THE WEST LINE OF SAID SECTION 16,A
DISTANCE OF 148.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE WESTERLY 46 FEET THEREOF.
PARCEL 2:
LOT 8 IN THE NORTHWEST QUARTER OF SECTION 16,TOWNSHIP 14 SOUTH,RANGE 21 EAST,
MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO,COUNTY OF FRESNO, STATE OF
CALIFORNIA,ACCORDING TO THE MAP OF HENRIETTA RANCH RECORDED IN BOOK 2,PAGE 20
OF PLATS, FRESNO COUNTY RECORDS,
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL OF LAND:
BEGINNING AT A POINT NORTH,A DISTANCE OF 516.80 FEET AND SOUTH 88'59'00"EAST,A
DISTANCE OF 30.00 FEET FROM THE WEST QUARTER CORNER OF SAID SECTION 16,THENCE
CONTINUING SOUTH 88'59'00"EAST,A DISTANCE OF 33920 FEET,THENCE NORTH,PARALLEL
WITH THE WEST LINE OF SAID SECTION 16,A DISTANCE OF 148.00 FEET. THENCE NORTH 88'
59'00"WEST,A DISTANCE OF 339.20 FEET,THENCE SOUTH, PARALLEL WITH THE WEST LINE
OF SAID SECTION 16,A DISTANCE OF 148.00 FEET TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE WEST 76 FEET THEREOF.
SAID LAND IS ALSO DESCRIBED AS PARCEL"A"OF PARCEL MAP NO. 91-05 IN THE CITY OF
FRESNO,COUNTY OF FRESNO,STATE OF CALIFORNIA,ACCORDING TO THE MAP THEREOF
RECORDED IN BOOK 51,PAGES 76 AND 77 OF PARCEL MAPS AND THE AMENDED MAP OF
PARCEL MAP NO. 91-05,RECORDED IN BOOK 55, PAGES 1 AND 2 OF PARCEL MAPS,FRESNO
COUNTY RECORDS.
APN:316-022-03 and 316-022.02
Ii