Loading...
HomeMy WebLinkAboutT-5482 - Agreement/Covenant - 8/19/2010 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE-Government Code 6103 CITY OF FRESNO CC Planning and Development Department 0 LL Z JAF: 5259 E. Garrett Ave (Lot 16) 0 5263 E. Garrett Ave (Lot 17) C.) 5208 E. Hoxie Ave (Lot 45) ul 2584 S. Adrian Ave (Lot 46) Q 2572 S. Adrian Ave (Lot 47) Lu 5258 E. Garrett Ave (Lot 59) 1 5262 E. Garrett Ave (Lot 60) 5266 E. Garrett Ave (Lot 61) AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS FOR THE FINAL MAP OF TRACT NO. 5482 Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No. 5482 Page 2 THIS AGREEMENT is made this STS day of20_/, by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and K. HOVNANIAN AT FRESNO, LLC, A 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 City of Fresno, 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 northeast corner of the intersection of East Jensen and South Peach 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,Vesting Tentative Map No. 5482 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5482, hereinafter referred to as the "Final Map" pursuant to said Tentative Map, which upon satisfaction of all conditions of approval for the Final Map, 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. The City approved and recorded the Agreement For Early Issuance of Model Home Building Permits Tract No. 5482 on February 20, 2007, as Document No. 2007-0034885, Fresno County Records for lots 12-17, inclusive, and lots 43 and 44. F. In lieu of the lots in approved said Document No. 2007-0034885,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 Final Map of Tract No.5482 Page 3 Lot 16 5259 East Garrett Avenue Lot 17 5263 East Garrett Avenue Lot 45 5208 East Hoxie Avenue Lot 46 2584 South Adrian Avenue Lot 47 2572 South Adrian Avenue Lot 59 5258 East Garrett Avenue Lot 60 5262 East Garrett Avenue Lot 61 5266 East Garrett Avenue G. Such building permits will be issued and inspected in accordance with City of Fresno codes and regulations. H. 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. I. 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. J. 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. K. It is extremely important to the Developer that the building permits for the model homes be issued as soon as possible. L. 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 for Early Issuance of Model Home Building Permits Final Map of Tract No. 5482 Page 4 AGREEMENT Inconsideration 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 not 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 the 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 a Certificate of Deposit made payable only to the City of Fresno for the following amount: 8 Model Homes @ $1,000 per Model Home $8,000.00 This deposit may be used by the City to defray all or part of the costs and expenses of removal under the provisions of the Paragraphs above, with any balance to 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 Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No.5482 Page 5 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: SEWER CONNECTION CHARGE -Wastewater Facilities Charge 8 Lots @ $2,119.00 per Lot $16,952.00 WATER CONNECTION CHARGE -Water Meter Charge 8 Lots @ $455.00 per Lot, 1-1/2" Meter $3,640.00 TOTAL FEES AND CHARGES DUE* $20,592.00 *Additional fees and charges required pursuant to the conditions of approval for the Tentative Map, shall be due and payable as a condition of final map approval. 7. The obligations of the Developer provided in this Agreement are joint and several. 8. This Agreement shall in no way be construed as a grant by the City of any rights to the Subdivider 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, Subdivider shall indemnify, hold harmless and defend Cityand 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, Subdivider 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 Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No. 5482 Page 6 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. Subdivider's obligations under the preceding sentence shall apply regardless of whether Subdivider or any of its officers, officials,employees or agents are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Subdivider should subcontract all or any portion of the work to be performed under this Agreement, Subdivider 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 paragraph in this Section 10. Notwithstanding the preceding sentence, any subcontractor who is a "design professional" as defined in Section 2782.8 of the California Civil Code shall, in lieu of indemnity requirements set forth in the preceding paragraph of this Section 10, be required to indemnify, hold harmless and defend City and each of its officers, officials, employees, agency and volunteers to the furthest extent allowed by law, 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), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses)that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the design professional, its principals,officers,employees,agents or volunteers in the performance of this Agreement. The Subdivider further agrees that the use for any purpose and by any person of any and all of the streets and improvements hereinbefore specified, shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein. This section shall survive termination or expiration of this Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No. 5482 Page 7 Agreement. 11. Insurance. Throughout the life of this Agreement, Subdivider 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: a. 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 cbodily injuryc, cproperty damages and cpersonal and advertising injuryc 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 $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $1,000,000 aggregate for products and completed operations. b. 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 c Any Auto), with combined single limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. C. PROFESSIONAL LIABILITY(Errors and Omissions)insurance appropriate to the respective person's profession (applicable only to those subcontractors who are providing Professional Services to the Subdivider), with limits of liability of not less than $1,000,000 per claim/occurrence and policy aggregate. d. WORKERS' COMPENSATION insurance as required under the California Labor Code. e. EMPLOYERSc 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. Subdivider 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. Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No.5482 Page 8 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, Subdivider 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, Subdivider shall file with City a new certificate and all applicable endorsements for such policy(ies). The General Liability and Automobile 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 Subdivider's insurance shall be primary and no contribution shall be required of City. In the event claims made forms are used for any Professional Liability coverage, either(i)the policy(ies)shall be endorsed to provide not less than a 5 year discovery period, or (ii) the coverage shall be maintained for a minimum of 5 years following the termination of this Agreement and the requirements of this section relating to such coverage shall survive termination or expiration of this Agreement. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, employees and volunteers. Subdivider shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. Subdivider 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. The fact that insurance is obtained by Subdivider or his/her/it's subcontractors shall not be deemed to release or diminish the liability of Subdivider,or his/her/it's subcontractors including Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No. 5482 Page 9 without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City, its officers, officials, agents, employees and volunteers, shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Subdivider or his/her/it's subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relief from liability nor limit the liability of Subdivider, its principals, officers, agents, employees, persons under the supervision of Subdivider, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them. If at any time during the life of the Agreement or any extension, Subdivider fails to maintain the required insurance in full force and effect, the Director of Public Works,or his/her designee, may order that the Subdivider, or its contractors or subcontractors, immediately discontinue any further work under this Agreement and take all necessary actions to secure the work site to insure that public health and safety is protected. All payments due or that become due to Subdivider 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 Subdivider should subcontract all or any portion of the services to be performed under this Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of City, its officers, officials, employees,volunteers 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 Subdivider and City prior to the commencement of any work by the subcontractor. 12. Upon recordation of this agreement, the Agreement For Early Issuance of Model Home Building Permits Tract No. 5482, recorded February 20, 2007, as Document No. 2007- 0034885, Fresno County Records, shall be of no Further force and effect. Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No.5482 Page 10 13. The foregoing deposit shall be returned to the Developer and this Agreement shall be of no further force and effect upon the City Council approving the Final Map and the Final Map is duly recorded. 14. 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. Agreement for Early Issuance of Model Home Building Permits Final Map of Tract No.5482 Page 11 CITY OF FRESNO, DEVELOPER: a Municipal Corporation K. HOVNANIAN AT FRESNO, LLC, Planning and Development Department a California Limited Liability Company John M. Dugan, AICP, Director {may ��, vta.ti` 4eAe_j0,0 ( (r'C' r-O/0 C2 f�c14 By: B ' err . Bishop, Assi ant Director is ar u ; SuaW Vice President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: on haffin p ty Cit Attorney Date: /!// TL (Attach Notary Acknowledgment) State of California County of Sacramento On January 4, 2010 before me, Terrie Lackner, Notary Public personally appeared Richard J Balestreri who proved to me on the basis of satisfactory evidence to be the person(s-) whose name(.%) is/a-re subscribed to the within instrument and acknowledged to me that he/she/they he/she/theyexecuted the same in his/her/their authorized capacity(+es), and that by his/her/their signature(-s4-on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. TERRiE LACKNER CowAssm•!6229N Imsry Public-C�1Nonils wramo to Cow" Signature (Seal) Co�xn. NovsB•2012 CLERK'S CERTIFICATION State of California ) County of Fresno ) On February 5, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Jerry D. Bishop, Assistant Director, Planning and Development Department, who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal REBECCA E. KLISCH, CMC City Clerk, City of Fresno C-A '4ByDeputy .., SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on October 27, 2008, in the office of the Fresno County Recorder as Document No. 2008-0149388 of which the Deed of Trust is by and between: K, Hovnanian at Fresno, LLC, successor-in-interest to K. Hovnanian Communities, Inc, as Trustor, Chicago Title Insurance Company, as Trustee, and Wilmington Trust Company, successor-in-interest to Deutsche Bank National Trust Company, pursuant tothat certain Assignment recorded on October 9, 2009, as Instrument No. 2009-0140684, in the Office of the Fresno County Recorder, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Agreement For Early Issuance of Model Home Building Permit;for the Final Map of Tract No. 5482. DATED: 120 BENEFICIARY WILMINGTON/ UST COMPANY By: / Name: Petrick J. Healy Title: Vice resi en (Beneficiary to print/type document information, Name,Title and attach Notary Acknowledgment) Model Home.2d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: I CERTIFY that on the�day of January, 2010, before me, the undersigned, personally appeared PATRICK HEALY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. i,,441411/r,,, .`' WALK o�+M�S �o�;. LEAH M.WALKER -.0 Notary public-State of Delaware ya�O _ My Comm. Expires March 31, 2010 40TAM V? �- - {11714,4 ' SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 9, 2009, in the office of the Fresno County Recorder as Document No. 2009-0017031 of which the Deed of Trust is by and between: K. Hovnanian at Fresno, LLC, successor-in-interest to K. Hovnanian Communities, Inc, as Trustor, Chicago Title Insurance Company, as Trustee,and Wilmington Trust Company, successor-in-interest to Deutsche Bank National Trust Company, pursuant to that certain Assignment recorded on October 9, 2009, as Instrument No. 2009-0140684, in the Office of the Fresno County Recorde>; as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Agreement For Early Issuance of Model Home Building Permit;for the Final Map of Tract No. 5482. IX2—DATED: �- , 20 BENEFICIARY WILMINGTOTT ST COMPANY B / Y• Name: Patrick J. Healy Title: Vice PresItIM (Beneficiary to print/type document information,Name,Title and attach Notary Acknowledgment) Model Home.3d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: I CERTIFY that on the_jday of January, 2010, before me, the undersigned,personally appeared PATRICK HEALY, personally known to me or ,proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. wALkE,Q''•,• LEAN M.WALKER `, •. �,1SS�Q . , Notary Public-State of Delaware My Comm. Expires March 31,2010 ��_ ' -4trARN ?lrrrri„re EXHIBIT A Real property in the City of Fresno, County of Fresno, State of California, described as follows: The South half of the Southwest quarter of the Southwest quarter of Section 17, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, in the County of Fresno, State of California, according to the Official Plat thereof. EXCEPTING therefrom the West 40 feet of the South 150 feet thereof; ALSO EXCEPTING therefrom the following described property: Beginning at a point on the South boundary of Section 17, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, which is 40 feet East of the Southwest corner of said Section 17; thence Easterly along the South boundary of said Section 17 to the Southeast corner of the Southwest quarter of the Southwest quarter of said Section; thence Northerly along the East boundary of the Southwest quarter of the Southwest quarter of said Section 17, a distance of 30 feet; thence in a Northwesterly direction, to a point which is 100 feet East of the West boundary and 69 feet North of-the South boundary of said Section 17; thence in a Northwesterly direction to a point which is 99 feet North of the South boundary and 40 feet East of the West boundary of said Section 17; thence Southerly 40 feet from and parallel to the West boundary of said Section 17, a distance of 99 feet to the Point of Beginning.