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HomeMy WebLinkAboutT-5376 - Agreement/Covenant - 6/16/2006 r E WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 0611612006.20060126307 L7 W O U NO FEE-Government Code 6103 Z V CITY OF FRESNO Planning and Development Department P.W. File No. 10906 JAF: 5625, 5629, 5633 East Byrd Avenue AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS TRACT NO. 5376 r •f Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 2 THIS AGREEMENT is made this i day of �UkU� , 20 06, by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and SPENCER ENTERPRISES, INC., a California Corporation hereinafter referred to as the "Developer," without regard for number or gender. RECITALS A. The Developer owns real property situated in the County 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 on the east side of South Clovis Avenue between East Byrd and East Grove Avenues.. 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, a Vesting Tentative Map No. 5376 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5376 hereinafter referred to as the "Final Map" pursuant to said Tentative Map, which will be presented for City Council action. D. The Developer is requesting the issuance of building permits to construct model homes on the Subject Property prior to the 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, including but not limited to,compliance with the provisions of Section 12-4.508.E.1 (UGM FIRE STATIONS, UGM DEVELOPMENT RESTRICTIONS) of the Fresno Municipal Code. 7 .T Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 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 8, 5625 East Byrd Avenue Lot 9, 5629 East Byrd Avenue Lot 10, 5633 East Byrd 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 approved by the Fresno City Council and 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 for the approval of the Final Map by the City of Fresno is not expected to be finalized for up to one hundred twenty (120) days. r Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 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 approve the Final Map 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, the Developer shall deliver to the City of Fresno the sum of One-Thousand ($1,000) per model home for a total amount of Three-Thousand Dollars ($ 3,000 ) evidenced by cash or a Certificate of Deposit made payable to the City of Fresno. This deposit may be used by the City to defray all or part of the costs and expenses of removal with any balance to be returned to the Developer. After the action by the City approving the Final Map and the recording of that Final Map, the deposit will be returned to the Developer. Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 5 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. 6. The Developer has paid the fees and charges due as a condition of approval of this Agreement for the model homes as follows: Wastewater Facilities Charge 3 Lots @ $ 2,119 /Lot $ 6,357.00 Service Connection Charges - Water Meters per Lot Lots 8 thru10 3 - 1" Meters @ $330/each $ 990.00 Total Fees and Charges Due $ 7,347.00 7. The obligations of the Developer provided in this Agreement are joint and several. 8. 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 Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 6 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. 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 imdemnity obligations under this Agreement),with limits of liability of not less than$5,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations. Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 7 (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 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, 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 Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 8 Workers' Compensation insurance policy shall contain a waiver of subrogation 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. 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. In the event the City Council approves the Final Map and the Final Map is duly recorded, the foregoing deposit shall be returned to the Developer and this Agreement shall be of no further force and effect. Agreement for Early Issuance of Model Home Building Permits Tract No. 5376 Page 9 CITY OF FRESNO, DEVELOPER: a Municipal Corporation Spencer Enterprises Inc., a California Corporation. BAA112-1.w- l . Yovino, Director By. - PI n ing and Development Department ichard F. encer, esident (Attach Notary Acknowledgment) APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By Ofil Deputy K:\Ki Maps\Final Maps\FM 5376\Map Docs\FM 5376 Agreement Early Model Home v07-02-04.wpd louisr jonb frankfs 7-3-03 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT `^1 State of California ss. County of �—VV-7�%o On — 1-Ob before me,t4&W C-SA "rAl'T, NJ�mrsi 14;11 Date Name and Ale of Officer(e.g.,"Jane Doe,Notary Public") 111, personally appeared Name(s)of Signer(s) 1,20 rpersonally known to me ❑ proved to me on the basis of satisfactory evidence 2 to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed NANCY SCHEIDT the same in his/her/their authorized Commission#1458052 capacity(ies), and that by his/her/their -� Notory Pubfic-Colifornio signature(s) on the instrument the person(s), or 5 Fresno County the entity upon behalf of which the person(s) My Comm.Expkes Dec 23,2007 acted, executed the instrument. WITNES my hand and official s 4 L� Stgnatur otary Public 1 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 Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 0 1999 National Notary Association-9350 De Soto Ave.,PO.Box 2402•Chatsworth,CA 91313-2402•www.nationalnotary.org Prod-No.5907 Reorder:Call Toll-Free 1-800-876-6827 CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On June 15, 2006, before me, Erika Leyva, Deputy City Clerk, personally appeared Nick P. Yovino, Director Planning and Development Department, 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. KL ISCH CITY CLERK By De u EXHIBIT A Agreement for Early Issuance of Model Home Building Permits for Tract No. 5376 Real property in the City of Fresno, County of Fresno, State of California, described as follows: ALL OF TRACT NO. 2471 ACCORDING TO THE MAP THEREOF RECORDED JULY 26, 1973 IN VOLUME 28 OF PLATS AT PAGE 19 FRESNO COUNTY RECORDS, LYING WITHIN SECTION 16, TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA.