HomeMy WebLinkAboutT-5400 - Agreement/Covenant - 10/10/2006 r
WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603 09/19/2006,20060198961
p NO FEE-Government Code 6103
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CITY OF FRESNO
op Planning and Development Department
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O P.W. File No. 11064
U JAF: 5773, 5787, 5801, 5815, 5829, 5843, 5857 Norwich Avenue
AGREEMENT FOR EARLY ISSUANCE OF MODEL
HOME BUILDING PERMITS TRACT NO. 5400
i
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
Page 2
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THIS AGREEMENT is made this day of 20_1� , by and
between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and
GETTYSBURG/HAYES No. 1, LP, a California Limited Partnership 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 North Hayes Avenue between West Ashlan and West Gettysburg 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 Tentative Map No.
5400 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5400,
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.
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
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 219, 5773 Norwich Avenue
Lot 220, 5787 Norwich Avenue
Lot 221, 5801 Norwich Avenue
Lot 222, 5815 Norwich Avenue
Lot 223, 5829 Norwich Avenue
Lot 224, 5843 Norwich Avenue
Lot 225, 5857 Norwich 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.
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
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 Seven
Thousand Dollars($7,000)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.
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
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
7 Lots @ $ 2,119 /Lot $ 14,833.00
Service Connection Charges - Water Meters per Lot
Lots 219-225 7 - 1" Meters @ $330.00 /each $ 2,310.00
Total Fees and Charges Due $ 17,143.00
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
and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
Page 6
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.
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which
shall be at least as broad as the most current version of Insurance Services Office(ISO) Business
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
Page 7
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
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
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5400
Page 8
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. 5400
Page 9
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation
GETTYSBURG I HAYES No. 1, LP, a California
Limited Partnership.
By: The McCaffrey Group, Inc., a California
By Corporation, its General Partner.
N ovino, Director
Plann g and Development Department
By:
Robert A. McCaffrey, resident
APPROVED AS TO FORM:
B
JAMES C. SANCHEZ Brent C rey, ice resident
Interim City Attorney
By
7
Deputy
(Attach Notary Acknowledgment)
STATE OF CALIFORNIA )
SS.
COUNTY OF FRESNO )
On September 14,2006'
4,2006, before me,Michele L. Hogan a Notary Public,
personally appeared, Robert A. McCaffrey and Brent McCaffrey, 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 capacity(ies),and that by
his/her/their signature(s) on the instrument the person(s) or the entity(ies) on behalf
of which the person(s) acted,executed the instrument.
WITNESS my hand and official seal.
Notary Public
L.S. My Commission n"
fres: nuary 211,200
ICHELE L. HOGAN
ConttNsslon# 1395535
Notary RAAc - Cawornla
Fresno County
1W1MVCoffim.EVkesjan21,20071
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On September 18. 2006, before me, Elvia Sommerville, Deputy City Clerk, personally
appeared, Nick P. Yovino. 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 be 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
0
By
Deputy
n
EXHIBIT A
Agreement for Early Issuance of Model Home Building Permits for Tract No. 5400
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF FRESNO,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
That portion of the West half of the Southwest quarter of Section 15, Township 13 South, Range
19 East, Mount Diablo Base and Meridian, lying North of the line described as follows:
BEGINNING at a point on the West line of said West half, South 0021'06" West, a distance of
2033.02 feet from the Northwest corner of said West half; thence South 89055'37' East, a
distance of 1317.04 feet to the intersection with the East line of said West half.
EXCEPTING THEREFROM the North 30 feet thereof.
P.W. File No. 11064