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HomeMy WebLinkAboutT-5316 - Agreement/Covenant - 2/13/2007 WHEN RECORDED MAIL TO: City Clerk City of Fresno ®®1® 2600 Fresno Street ®®� Fresno, CA 93721-3603 cm W c>1 NO FEE-Government Code 6103 CD a" U— = Z V CITY OF FRESNO VPlanning and Development Department AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS for TRACT NO. 5316 Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 2 THIS AGREEMENT is made thisay of r , 20_x, by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and CENTEX HOMES, a Nevada General Partnership, hereinafter referred to as the "Developer," without regard for number or gender. RECITALS A. The Developer owns real property situated in the City of Fresno, State of California, hereinafter referred to as the "Subject Property" and more particularly described in EXHIBIT "A," attached hereto and made a part of this Agreement, which is generally located at the southwest corner of North Polk Avenue and West Dakota Avenue. B. The Developer hereby warrants that any and all parties having record title interest in the 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 apart of this instrument. C. The Developer has filed and the City of Fresno has approved,Vesting Tentative Map No. 5316 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5316, hereinafter referred to as the "Final Map" pursuant to said Tentative Map, which was conditionally approved by the City Council on February 6, 2007. D. The Developer is requesting the issuance of building permits to construct model homes on the Subject Property prior to the satisfaction of the terms of such conditional approval and recording of the Final Map. E. Such building permits will be issued and inspected in accordance with City of Fresno codes and regulations Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 3 F. The Developer has filed building plans and has requested that the City issue building permits for model homes on the portion of the Subject Property which correspond to the lots to be created by the Final Map as follows: Lot 2 3292 North Wheeler Avenue Lot 3 3304 North Wheeler Avenue Lot 7 3352 North Wheeler Avenue Lot 8 5524 West Garland Avenue Lot 9 5536 West Garland Avenue Lot 53 5561 West Dayton Avenue Lot 54 5549 West Dayton Avenue Lot 55 5537 West Dayton Avenue Lot 56 5525 West Dayton Avenue Lot 64 3330 North McCaffrey Avenue G. The City is unwilling to permit such construction or inspect same without assurance that no vested rights or entitlements will be conferred by the early issuance of such model home building permits or by the acceptance of such construction upon inspection. H. The Developer acknowledges that such improvements will be accepted by the City only if they comply with all applicable City standards, codes, and ordinances, provided, and in no case shall acceptance of such improvements be complete until the Final Map is duly recorded. I. Developer 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. J. It is extremely important to the Developer that the building permits for the model homes be issued as soon as possible. K. The action to satisfy the conditional approval of the Final Map by the City of Fresno to enable recording of the Final Map is not expected to be finalized for up to one hundred twenty (120) days. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 4 AGREEMENT In consideration of the foregoing,the early issuance of building permits for the model homes and the promises and covenants herein contained, the undersigned agree: 1. Should the City of Fresno fail to file the Final Map for recording for any reason within one hundred twenty(120)days of the execution of this Agreement, the Developer shall, within ten (10)days after written notice from the Director of the Planning and Development Department of the City of Fresno, remove from the Subject Property any improvements or construction placed or constructed pursuant to the building permits issued for the model homes; and Developer shall restore the Subject Property to its prior condition. 2. Should the Developer fail to comply with the provisions of Paragraph 1 above, the City of Fresno, or any of its duly authorized officers, employees or agents, are unconditionally permitted to enter upon the Subject Property and accomplish such removal and restore the Subject Property to its prior condition. 3. Should the City of Fresno cause such removal under the provisions of Paragraph 2 hereof,the Developer shall hold harmless and defend the City, its officers,employees and agents from any claims, lawsuits, costs, liability, damages or expenses, including costs of suit and fees and expenses for legal services, on account of any damages claimed by any reason to have occurred by reason of such removal. 4. To assure the promises herein contained,an initial amount of Ten Thousand Dollars ($10,000) shall be encumbered from other cash securities provided to the City for the Subdivision Agreement for the Final Map of Tract No.5316. The encumbered amount maybe used by the City to defray all or part of the costs and expenses of removal. Upon the recording of the Final Map, such encumbered cash security will be returned to the Developer under the provisions of said Subdivision Agreement. 5. Any costs and expenses of removal exceeding the above stated amount of security, which are stated in writing with a description of the Subject Property by an officer of the City, and recorded in the County Recorder's office, shall be a lien on the Subject Property and appurtenances running in favor of the City of Fresno. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 5 6. The Developer shall pay all applicable fees and charges due as a condition of issuance of the building permit and final occupancy for the Subject Property. 7. The obligations of the Developer provided in this Agreement are joint and several. S. This Agreement shall in no way whatsoever be construed as the granting by the City of any rights to the Developer to trespass upon land rightfully in the possession of, or owned by, another, whether such land be privately or publicly owned. 9. No vested rights or entitlements are conferred by the issuance of this early construction permit or by acceptance of any improvements constructed thereunder. 10. Indemnification. To the furthest extent allowed by law, Developer 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 any time and property damage) incurred by City, Developer 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 subdivision and upon the premises adjacent thereto pursuant to this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether Developer or any of its officers, officials, employees or agents 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 City or any of its officers, officials, employees, agents or volunteers. If Developer should subcontract all or any portion of the services to be performed under this Agreement, Developer 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. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 6 This section shall survive termination or expiration of this Agreement. 11. Throughout the life of this Agreement, Developer 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: (i) 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 indemnity obligations under this Agreement),with limits of liability of not less than $5,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations. (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which 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. (iii) POLLUTION LIAIBLITY insurance with limits of liability of not less than$5,000,000. (iv) WORKERS' COMPENSATION insurance as required under the California Labor Code. (v) 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. Developer shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Subdivider shall also be responsible for payment of any self- insured retention. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 7 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, Developer 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, Developer shall file with City a new certificate and all applicable endorsements for such policy(ies). The General Liability,Automobile Liability and Pollution 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 Developer's insurance shall be primary and no contribution shall be required of City. Any Workers' Compensation insurance policy shall contain a waiver of subornation as to City,its officers,officials, agents, employees and volunteers. Developer shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. Developer shall furnish City with copies of the actual policies upon the request of City's Risk Manager at 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 Agreement or any extension, Developer 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 Developer 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 Developer should subcontract all or any portion of the services to be performed under this Agreement, Developer shall require each subcontractor to provide insurance protection in favor of City, its officers, officials, employees 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 Developer and City prior to the commencement of any work by the subcontractor. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 8 12. The foregoing shall burden the Subject Property described and constitute a covenant running with the land in favor of and for the benefit of the City of Fresno and its property; be enforceable by the City by any legal or equitable means; and shall be binding upon the successor, assigns,transferees, and heirs of the Developer. Upon the recording of the Final Map, this Agreement shall be of no further force and effect. Agreement for Early Issuance of Model Home Building Permits Tract No. 5316 Page 9 CITY OF FRESNO, DEVELOPER: a Municipal Corporation CENTEX HOMES, a Nevada General Partnership By: Centex Real Estate Corporation, a By: Nevada Corporation, as Managing eith Be gthold, Actin Director General Partner Planning and Development Department By: Scott Trav , ivision Controller APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: LG"' Deputy (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: () STATE OF California )SS APN No: COUNTY OF TULARE ��,�t ) On ! J before me, CARMEN NAVARRO,A NOTARY PUBLIC personally appeared —77CD I//S 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. CARMEN N WITNESS my hand and official seal. AVARRO U j t;ObIM.41560815 $ NOTARY PUBLIC CALIFORNIA G) Signature TULARE COUNTY Comm.Exp.MARCH 18,2009 This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE Reproduced by First American Title Insurance 1/2001 CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO) On February 9. 2007, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno, personally appeared, Keith Bergthold, Acting Planning and Development 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 the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK, CMC a By Deputy EXHIBIT A Agreement for Early Issuance of Model Home Building Permits for Tract No. 5316 THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 13 SOUTH, RANGE 19 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING To THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22; THENCE SOUTH 00'01'55" WEST, ALONG THE EAST LINE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22, A DISTANCE OF 659.59 FEET TO THE SOUTHEAST CORNER OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22: THENCE SOUTH 89'56'05" WEST, ALONG THE SOUTH LINE OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 22, A DISTANCE OF 1488.00 FEET: THENCE NORTH 00'01'55" EAST, A DISTANCE OF 759.99 FEET; THENCE NORTH 89'55'43" EAST, A DISTANCE OF 170.97 FEET TO A POINT ON THE EAST LINE OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22; THENCE SOUTH 00'00'57" WEST, ALONG THE EAST LINE OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22, A DISTANCE OF 99.48 FEET TO THE NORTHWEST CORNER OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22; THENCE NORTH 89'58'32" EAST, ALONG THE NORTH LINE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 22, A DISTANCE OF 1317.00 FEET To THE POINT OF BEGINNING.