HomeMy WebLinkAboutT-5477 - Agreement/Covenant - 3/21/2007 WHEN RECORDED MAIL TO:
City Cierk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603 03121/2007120070057754
LU NO FEE-Government Code 6103
qa >-
Or-� C- CITY OF FRESNO
ZcC:)
.. Planning and Development Department
O
U P.W. File No. 11003
JAF: 2467, 2471, 2475, 2476, 2479, 2480, 2483, 2484, 2487, 2488, 2491 South Bundy Drive
2483, 2487, 2491 South Ezie Avenue
5906, 5912, 5918, 5924, 5930, 5936 East Eugenia Avenue
AGREEMENT FOR EARLY ISSUANCE OF MODEL
HOME BUILDING PERMITS TRACT NO. 5477, PHASE 3 OF VESTING
TENTATIVE MAP NO. 5248
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 2
THIS AGREEMENT is made this 7" day of March , 2007, by and between the CITY
OF FRESNO, a Municipal Corporation, hereinafter referred to as the "City," and Sunnyside
Project, LLC, California Limited Liability Company, 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
southwest corner of South Fowler and East Church 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 Conditional Use
Permit(C-04-148)and Vesting Tentative Map No. 5248 for a Planned Development on the Subject
Property. Additionally, the Developer has filed a Final Map of Tract No. 5477, Phase 3 of Vesting
Tentative Map No. 5248, 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.
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:
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 3
Lot 20, 2467 South Bundy Drive
Lot 21, 2471 South Bundy Drive
Lot 22, 2475 South Bundy Drive
Lot 23, 2479 South Bundy Drive
Lot 24, 2483 South Bundy Drive
Lot 25, 2487 South Bundy Drive
Lot 26, 2491 South Bundy Drive
Lot 27, 2488 South Bundy Drive
Lot 28, 2484 South Bundy Drive
Lot 29, 2480 South Bundy Drive
Lot 30, 2476 South Bundy Drive
Lot 37, 2483 South Ezie Avenue
Lot 38, 2487 South Ezie Avenue
Lot 39, 2491 South Ezie Avenue
Lot 67, 5936 East Eugenia Avenue
Lot 68, 5930 East Eugenia Avenue
Lot 69, 5924 East Eugenia Avenue
Lot 70, 5918 East Eugenia Avenue
Lot 71, 5912 East Eugenia Avenue
Lot 72, 5906 East Eugenia 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.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 4
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.
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.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 5
4. To assure the promises herein contained, the Developer shall deliver to the City of
Fresno the sum of One-Thousand Dollars ($1,000) per model home for a total amount of Twenty
Thousand Dollars ($ 20,000 ) 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.
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
20 Lots @ $ 2,119 /Lot $ 42,380.00
Service Connection Charges - Water Meters per Lot
Lots 20-30, 37-39, 67-72 20 - 1.5" Meters @ $455/each $ 9.100.00
Total Fees and Charges Due $ 51,480.00
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.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 6
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.
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 currentversion 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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 7
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 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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 8
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
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. 5477/UGM
Page 9
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation
Sunnyside Project LLC, a California Limited
Liability Company.
By: Granville Management, Inc., a California
By: Corporation, Its Manager.
Reith Bergthoid, Acting Directo
Planning and Development Department
Christine Linge Ite Assistant Secretary
APPROVED AS TO FORM:
JAMES C. SANCHEZ (Attach Notary Acknowledgment)
City Attorney
By. V v v
Deputy
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of o
On I�Ct►�Ch, A(�D'7 before me, ad� ►2, �. Llr ►y 1�
' 4 NaWe and Title of Officer(e.g.,"Jane Doe,Notary Publirj
personally appeared �`U1�v'�l nc , L _�vi a-en-Fa+4- ,r-
Name(s)
of Sig (s)
I
%personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
MAIM"&CA to the within instrument and acknowledged to me that
C01111111111111111111111111:1111. t U he/she/they executed the same in his/her/their
V do-C lkwdo authorized capacity(ies), and that by his/her/their
FAMM CCU*
0. ,,IAg, ; 4,2W7 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.
Place Notary Seal Above � A
- eaa�
SigrWure of Notary Public
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(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited El General
❑ Attorneyin Fact
Top of thumb here ❑ Attorney in Fact Top of thumb here
El Trustee ElTrustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-600-676-6627
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO)
On March 21, 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
`yy J
Deputy
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5477/UGM
Page 12
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on - d , in the office of the Fresno County Recorder as Document
No.z of which the Deed of Trust in by and between:
LLL 0. Cal i� vrnid I IM , as Trustor,
Fi
rianc Comoana as Trustee,
and coIF as Beneficiary,
hereby express) subordinates said Deed of Two and its beneficial interest thereto to the foregoing
Agreement For Early Issuance of Model Home Building Permits .
DATED: hyla-IrC / , 20-01
BENEFICIARY
BY /
v
BY:
(Beneficiary to print/type document information, Name,Title and
attach Notary Acknowledgment)
EXHIBIT A
Agreement for Early Issuance of Model Home Building Permits for Tract No. 5477
PARCEL A OF PARCEL MAP NO. 2004-27, RECORDED IN BOOK 64, PAGES 77 AND 78 OF
PARCEL MAPS, FRESNO COUNTY RECORDS.
P.W. File No. 11003