HomeMy WebLinkAboutT-5510 - Agreement/Covenant - 11/10/2005 I
R I' ording Requested by: IIII III III I III II III III I III IIII I IIII I IIII I III II III
jj P lic Works Department
i Ci y of Fresno FRESNO County Recorder
N rFee-GOVT Code Section Robert C, Werner
03 and 27383 v DOC— 2005-0218300
When Recorded,Mail to Acct 301-Fresno City Public Works
City Clerk Monday, SEP 19, 2005 09:56:20
City of Fresno Tt l Pd $0.00 Nbr-0001956642
2600 Fresno Street APR/R 1/1-9
Fresno,CA. 93721-3623
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---- SPACE FOR RECORDERS USE ONLY ---------------------------
P.W. File 10917
EARLY CONSTRUCTION AGREEMENT
FOR SEWER AND WATER EMIPROVEMENTS
FOR TRACT MAP NO. 5510
THIS AGREEMENT is made as of Seip+&w,bzs' 19, 2005 between, 2M Development
Corporation, 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.
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Tract Map 5510
Early Construction Agreement
Sewer and Water
D. Owner has filed and the City has approved Tentative Tract Map 5510. Owner has
applied for approval of a final tract map pertaining to the subject property designated as Tract
Map 5510.
E. Owner wishes to commence construction of the sewer and water improvements
within the tract map being developed prior to approval of the final tract map for Tract Map 5510.
F. The City is unwilling to permit such construction or inspect same without
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assurance that no vested rights or entitlement will be conferred by the issuance of this early
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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 mapby 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 f
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-10019 through 10-C-10020 through in upon the subject
property,Owner agrees:
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Tract Map-5510
Early Construction Agreement
Sewer and Water
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
$5,016 for the inspection of the installation of improvements described herein.
6. Upon execution of this Agreement,Owner shall pay fees in the amount of$500 for
plan review of sewer and water plans, charges in the amount $3,500 necessary for wet ties.
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Tract Map 5510
Early Construction Agreement
Sewer and Water
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
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the scattering of dust,by equipment and personnel of the City or by contract as the City Engineer
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shall determine,, and the Owner agrees to pay to the City forthwith, upon receipt of billing
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therefore, the entire cost to the City of such sprinkling.
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Tract Map 5510
Early Construction Agreement
Sewer and Water
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. w
This section shall survive termination or expiration of this Agreement.
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Tract Map 5510
Early Construction Agreement
Sewer and Water
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 5510.
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Tract Map 5510
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, . 2M Develop en orporation,
a Municipal Corporation a Californ' ation
V a!
tion
By:
Michael T. Kinn . XG �ason
dggT. Public Works Director t
APPROVED AS TO FORM
HILDA CANTU-MONTOY
City Attorney
By:
Agnes Williams,.Deputy
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
ss.
COUNTY OF FRESNO )
On � I�/, 2005, before me, � .( ( iI A ,
personally appeared Michael T. Kirn, 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 signatures(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.
r WITNESS my hand and official seal.
REBECCA E. KU. ChI
City Cl k
} By: i
e uty
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Tract Map 5510
Early Construction Agreement
Sewer and Water
EXHIBIT «A„
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THE LAND REFERRED TO HEREIN BELOW,IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO,STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
The West 260 feet of the South quarter of the East half of the Northeast quarter of Lot 1 in
Block A of Wolters Colony, according to the Map thereof recorded in Book 2,Page 10 of
Plats,Fresno County Records,
Together with that portion of that certain alley lying adjacent to and Southerly of the
Southerly prolongation of the Easterly line and the Southerly prolongation of the Westerly
line of said land abandoned, by that certain resolution recorded October 8, 1996,as Document
No. 96134917,of Official Records, which would accrue to said land by operation of law.
APN: 428-072-06
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Y 8
STATE OF
COUNTY OF
On 6n) 5-- before me,
(Name of Notary Public)
personally appeared 612--
(or proved to me on the basis of satisfactory evidence) toe the person�is'S whose
name i ubscribed to the within instrument and acknowledged to me tha xecuted the
same in is � authorized capacity(iesj,and that bis Fier-signatur on the instrument the
person( , or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand a o cial seal.
CHER SILLINGER
COMM.#1396481
-LJ& NOTARY PUBLIC-CALIFORNIA
(Signature of Notary Public MyComm ExPFKESNlres .20 COUNTY �7
(This area for notarial seal)
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(notary)(07-02)
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