HomeMy WebLinkAboutDamian, Juan - Agreement - 5-9-2023MAINTENANCE AGREEMENT
This Maintenance Agreement (Agreement) is entered on 7,11a ?7 ,
2023 (Effective Date) by and between the CITY OF FRESNO, a Calif nia municipal
corporation (City) and JUAN J. DAMIAN, an individual (Owner).
RECITALS
A. Owner owns the properties located at 3804 and 3814 East Butler Avenue.
B. The City is undertaking a project to connect the Winchell neighborhood and
provide a safe route to school.
C. The City's project will consist of the construction of a sidewalk and curb ramp within
the public right-of-way, which abuts Owner's property on East Butler Avenue.
D. Due to the current orientation of Owner's parcels relative to the right-of-way, the
City's project has been designed to include certain improvements on Owner's
property.
E. The Parties now wish to clarify responsibility for the construction and subsequent
maintenance of these improvements, as well as ongoing liability.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. The Parties acknowledge that the Property Owner owns real property located at
3804 and 3814 East Butler Avenue (Property). The City's right-of-way is adjacent
to and abuts the property.
2. Scope of City Work:
a. The City will undertake sidewalk and curb installation and/or other
improvements within the public right-of-way (ROW Improvements), as
identified in yellow in Exhibit A.
b. Additionally, the City will perform certain improvements within the limits of
the Property (Private Improvements) as follows:
Demolish the asphalt area identified in red in Exhibit A and construct
in -kind replacement of the asphalt. The City will ensure that the
asphalt is level with any sidewalk to be constructed as part of the
ROW Improvements.
The City will construct an accessible ramp in the area identified in
blue in Exhibit A. The ramp will be compliant with the Americans with
Disabilities Act (ADA) and will provide access from any newly
installed sidewalk to the Property. The City has not evaluated the
area between the roof line and the red shaded area on the map to
determine whether it is ADA accessible. The City will not modify that
existing walkway and makes no guarantees about the ADA
accessibility of the preexisting walkway or an accessible path of
travel.
c. Other than the improvements described in subsection b above, the City will
npt construct any additional improvements or otherwise modify the
Proper y. City will not modify or construct any improvements in or on the
preexisting walkway located on the Property and identified in black in Exhibit
A.
3. City's Responsibility:
a. The City will design and construct all ROW and Private Improvements,
located in the yellow, red, and blue shaded areas specified in Exhibit A.
b. All ROW Improvements constructed or installed by the City shall be the
property of the City. The City shall be responsible for the ongoing
maintenance of the ROW Improvements.
c. The City guarantees that the Private Improvements will be constructed
consistent with applicable standards but does not make any guarantees
regarding the ongoing condition or suitability of the Private Improvements.
4. Owner's Responsibility:
a. Owner agrees to accept the work described above, which will be performed
on the Property in the red and blue shaded areas identified in Exhibit A. In
consideration of the City's construction of the Private Improvements, Owner
and their successors and assignees, as owners of the Property, agree that
they shall be responsible for the maintenance, repair, and replacement, at
their, or its sole expense, of the Private Improvements.
5. Governinq Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be
Fresno County, California.
6. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify, or
add to the interpretation or meaning of the provisions of this Agreement.
7. Severability. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
8. 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 provisions 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 either party, but rather
by construing the terms in accordance with their generally accepted meaning.
9. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceedings or action shall be entitled to recover from
the other party its reasonable attorney's fees and legal expenses.
2
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO,
A Californi municipal corporation
By:
Geo a nne A. White Da e
City nager
APPROVED AS TO FORM:
ANDREW JANZ
Juan J. Damian,
An Individ I
By. i
Name: L; Yn 1.,►j1
Title: a W NC/L-
(If corporation or LLC., Board
Chair. Pres_ or Vice Pres.)
City Attorney
By:
By*Senior
.� 23
r . Quintanilla Date Name:
Deputy City Attorney
Title:
ATTEST: (If corporation or LLC., CFO,
TODD STERMER, CMC Treasurer, Secretary or Assistant
City Clerk Secretary)
By: V;�3
REVI D BY:
Deputy Date
Addresses:
CITY:
City of Fresno
Attention: Scott L. Mozier
Public Works Director
2600 Fresno Street, Room 4016
Fresno, CA 93721
Phone: (559) 621-8752
E-mail: Scott.Mozier@fresno.gov
Attachments:
Exhibit A — Butler & 8th Project Map
OWNER:
Juan J. Damian
Attention: Juan J. Damian
Owner
3804/3814 E. Butler Avenue
Fresno, CA 93702
Phone: 559-266-2429
E-mail: m-damian@msn.com
10. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
11. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within any exhibit or attachment hereto which purport to
modify the allocation of risk between the parties, provided for within the body of
this Agreement, shall be null and void.
12. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
13. No Third -Party Benefits. The rights, interests, duties, and obligations defined within
this Agreement are intended for the specific parties hereto as identified in the
preamble of this Agreement. Notwithstanding anything stated to the contrary in
this Agreement, it is not intended that.any rights or interests in this Agreement
benefit or flow to the interest of any third parties.
14. 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 agreement
duly authorized and executed by both City and ❑wner.`,
15. Notice. 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, transmitted by facsimile followed by telephone confirmation
of receipt, or sent by United States registered or certified mail, with postage
prepaid, return receipt requested, 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. Notice served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
16. Binding. Subject to Section 14, above, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and
each parties' respective heirs, successors, assigns, transferees, agents, servants,
employees, and representatives.
17. Compliance with Law. The Parties shall at all times comply with all applicable laws
of the United States, the State of California, City, and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory
agencies, now in force and as they may be enacted, issued, or amended during
the term of this Agreement.
18. Counterparts. This Maintenance Agreement may be executed in counterparts,
each of which shall be deemed an original.
[Signatures follow next page.]
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