HomeMy WebLinkAboutT-5600 - Agreement/Covenant - 5/29/2008 WHEN RECORDED MAIL TO: ! Ilil III III�III IN1IIIIIIIIIIIIIII IN I IIIIIIII
City Clerk II
FRESNO County Recorder
City of Fresno
2600 Fresno Street Robert C, Werner
Fresno,CA 93721-3603 DOC— 2008-0008683
Wednesday, JAN 23, 2008 09:39:48
Tt 1 Pd $0.00 Nbr-0002685925
APR/R1/1-14
NO FEE-Government Code 6103
CITY OF FRESNO
Planning and Development Department
P.W. File No. 11214
JAR 7080, 7068, 7056, 7044, 7032, 7020 West San Madele Avenue
5438, 5426 North Maruyama Avenue
AGREEMENT FOR EARLY ISSUANCE OF MODEL
HOME BUILDING PERMITS TRACT NO. 5600
SUPERSEDING THE PREVIOUSLY RECORDED
AGREEMENT FOR EARLY ISSUANCE OF
MODEL HOME BUILDING PERMITS FOR
TRACT 5600
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 2
THIS AMENDED AGREEMENT is made this 15th day of January , 2008, by and
between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the "City," and
LENNAR FRESNO INC., a California Corporation hereinafter referred to as the "Developer,"
without regard for number or gender hereby amending and replacing the previously recorded Early
Model Agreement dated October 10, 2007 and recorded on November 6, 2007 (document number
20070202570.)
RECITALS
A. WHEREAS, on October 10, 2007, the City and Developer entered Agreement For
Issuance of Model Home Building Permits Tract No. 5600 recorded on an Agreement for Early Issuance
of Model Home Building Permits for Tract 5600, said agreement being recorded on November 6, 2007
(document number 20070202570).
B. WHEREAS, the City and Developer wish to amend and supercede the previously
recorded Early Model Agreement as set for herein.
C. WHEREAS, 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 south side of
West Barstow Avenue between North Garfield and North Grantland Avenues. The Subject Property is in
the City's Sphere of Influence and the Council has adopted a resolution to initiate annexation
proceedings.
D. WHEREAS, 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.
E. WHEREAS, the Developer has filed and the City of Fresno has approved Tentative Map
No. 5600 on the Subject Property. Additionally, the Developer is processing a Final Map of Tract
No. 5600, hereinafter referred to as the "Final Map" pursuant to said Tentative Map, which will be
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 3
presented for City Council action.
F. WHEREAS, 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.
G. WHEREAS, the County of Fresno Code Section 15.04.140 authorizes the issuance of
building permits by the City for the construction of model homes provided:
1. The City of Fresno has adopted a resolution to commence annexation proceedings;
2. The Building Official of the City of Fresno certifies the proposed structures and
the property comply with all City ordinances; and,
3. The City has executed an agreement agreeing to the provisions of Section 15.04.140.
This agreement requires the City to agree to indemnify the County for liability arising
from the agreement.
H. WHEREAS, 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 71, 7080 West San Madele Avenue Lot 75, 7032 West San Madele Avenue
Lot 72, 7068 West San Madele Avenue Lot 76, 7020 West San Madele Avenue
Lot 73, 7056 West San Madele Avenue Lot 79, 5438 North Maruyama Avenue
Lot 74, 7044 West San Madele Avenue Lot 80, 5426 North Maruyama Avenue
I. WHEREAS, 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.
J. WHEREAS,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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 4
no case shall acceptance of such improvements be complete until the Final Map is approved by the
Fresno City Council and duly recorded.
K. WHEREAS, the 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.
L. WHEREAS, it is extremely important to the Developer that the building permits for the
model homes be issued as soon as possible.
M. WHEREAS, the action for the approval of the Final Map by the City of Fresno is t
expected to be finalized within one hundred twenty(120)days.
N. WHEREAS,the City will not enter into the County agreement pursuant to Section
15.04.140 without Developer indemnifying the City.
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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 5
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 has delivered to the City of
Fresno the sum of One-Thousand($1,000)per model home for a total amount of Eight Thousand Dollars
($ 8,000) evidenced by a Certificate of Deposit made payable to the City of Fresno with respect to the
previously recorded Early Model Agreement, said deposit is applicable to this Agreement. 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
8 Lots @$ 2,119/Lot $ 16,952.00
Service Connection Charges-Water Meters per Lot
Lots 73-76, 79-82 8 - 1'/z" Meters @ $455.00/each $ 3,640.00
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 6
Total Fees and Charges Due 20,592.00
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 to have arisen directly or indirectly
out of performance of this Agreement, the agreement entered into with the County pursuant to Fresno
County Code Section 15.04.140 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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 7
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 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.
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(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.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 8
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 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
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 9
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. 5600
Page 10
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation
LENNAR FRESNO,INC.,a California Corporation
Planning and Development Department
Nick P. Yovino, Director
:2 By: S6•^7** gy.
Kth ergthold, Assistant Director Michael P. Slater, Vice-President
APPROVED AS TO FORM:
JAMES C. SANCHEZ (Attach Notary Acknowledgment)
City Attorney
By:
Kathryn C. Phelan, Deputy City Attorney
Date: ( 122/ D O
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ALL PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA }
COUNTY OF Fresno }
On January 16, 2008 before me, T. Rothermel, Notary Public , personally
appeared
Michael P. Slater who
proved to me on 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), an 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. y T. RO
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Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page II
CITY'S CERTIFICATION
State of California )
County of Fresno )
On January 22, 2008, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
Nick P. Yovino, Planning and Development Director, 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, CIVIC
City Clerk, City of Fresno
Deputy
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5600
Page 12
EXHIBIT A
Agreement for Early Issuance of Model Home Building Permits for Tract No. 5600
P.W. File No. 11214
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of Fresno, State of California,
described as follows:
Parcels 1, 2 and 3 of Parcel Map No. 4620, according to the map thereof recorded in Book 30 of
Parcel Maps at Page 77, Fresno County Records, being a portion of the Southeast quarter of
Section 8, Township 13 South, Range 19 East, Mount Diablo Base and Meridian, according to the
Official United States Government Township Plat thereof, in the County of Fresno, State of
California.
TOGETHERWITH all that portion of Lots 17, 18, 23 and 24 of the Plat of Muscatel Estate,
according to the map thereof recorded in Book 4 of Plats at Page 67, Fresno County Records,
more particularly described as follows:
BEGINNING at the Northwest corner of Parcel 1 of said Parcel Map No. 4620; thence South
00024'57"West, along the West line of said Parcel Map No. 4620, a distance of 634.47 feet to
the Southwest corner of Parcel 3, of said Parcel Map No. 4620; thence North 89058'43"East,
along the South line of said Parcel 3, a distance of 647.18 feet to the Southeast comer of said
Parcel 3,said Southeast corner being a point on a line 30.00 feet West of and parallel with the
East line of the Southeast quarter of said Section 8; thence South 00025'00"West, along said
parallel line a distance of 60.00 feet to the Northeast comer of the land described in the Deed
recorded April 21, 1999, as Document No. 1999-0061438,Official Records of Fresno County;
thence South 8905843"West, along the North line of the land described in said Document No.
1999-0061438, a distance of 862.89 feet to the Northwest comer of the land described in said
Document No. 1999-0061438; thence North 00024'53"East,a distance of 39.36 feet;thence
North 89051'33"West,a distance of 250.00 feet; thence North 00124'53"East, a distance 44.08
feet; thence North 80033'55"West, a distance of 96.55 feet to the beginning of a non-tangent
curve concave to the Northwest having a radius of 50.00 feet and to which point a radial line
bears South 84028'18"East; thence Southwesterly along said non-tangent curve a distance of
90.00 feet through a central angle of 103007'56"to the beginning of a reverse curve concave to
the South having a radius of 45.00 feet, a radial line through said beginning of reverse curve
bears North 1803938"East;thence Westerly along said reverse curve a distance of 14.66 feet
through a central angle of 18040'18"; thence on a tangent line South 89059'20"West, a distance
of 40.48 feet; thence South 44059'20"West, a distance of 17.46 feet; thence South 89059'20"
West, a distance of 50.00 feet; thence North 45001'13"West,a distance of 17.46 feet; thence
South 89059'20"West, a distance 37.24 feet to the beginning of a tangent curve concave to the
South having a radius of 45.00 feet; thence Westerly along said tangent curve a distance of
14.66 feet through a central angle of 18040'18"to the beginning of a reverse curve concave to
the Northeast having a radius of 50.00 feet, a radial line through said beginning of reverse curve
bears South 18040'58"East; thence Westerly and Northerly along said reverse curve a distance
of 111.13 feet through a central angle of 127020'36"to the beginning a reverse curve concave to
the West having a radius of 45.00 feet, a radial line through said beginning of reverse curve
bears South 71020'22"East; thence Northerly along said reverse curve a distance of 14.66 feet
through a central angle of 18040'18"; thence on a tangent line North 00000'40"West, a distance
of 80.10 feet; thence North 44048'02"West, a distance of 17.49 feet; thence North 00008'12"
East, a distance of 54.00 feet; thence North 45008'42"East, a distance 17.42 feet;
thence North 00006'05"West, a distance of 117.70 feet;thence North 89°5355"East, a distance
of 50.00 feet; thence South 45006'05"East, a distance o f 17.46 feet; thence North 8905355"
East,a distance of 90.43 feet;thence North 00006'05"West, a distance of 348.77 feet to a point
on a line 30.00 feet South of and parallel with the North line of the Southeast quarter of said
Section 8; thence North 89053'52"East, along said parallel line a distance of 721.70 feet to the
intersection of said parallel line with the Northerly prolongation of the West line of said Parcel
Map No. 4620; thence South 00024'57"West, along said Northerly prolongation a distance of
55.00 feet to the POINT OF BEGINNING.
Page 5
Order No.: 55600-5600-BLM