HomeMy WebLinkAboutT-5728 - Agreement/Covenant - 1/9/2008 WHEN RECORDED MAIL TO:
City Clerk
City of Fresno 1212811001
2600 Fresno Street ,10010128271
Fresno, CA 93721-3603
p NO FEE-Government Code 6103
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CITY OF FRESNO
C) C:) Planning and Development Department
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C:) P.W. File No. 11067
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JAF: 3410, 3422, 3434, 3446, 3458, 3470, 3482 North Gregory Avenue
3326, 3338, 3350, 3362, 3374, 3386 North Vista Avenue
5755, 5767, 5779 West Robinson Avenue
AGREEMENT FOR EARLY ISSUANCE OF MODEL
HOME BUILDING PERMITS TRACT NO. 5728
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5728
Page 2
THIS AGREEMENT is made this 281h day of September , 2007, by and between the
CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the "City," and CENTEX
HOMES, a Nevada General 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
southeast corner of West Dakota and North Hayes 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. 5316 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract
No.5728, Phase Two of Vesting Tentative Map No.5316, 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. 5728
Page 3
Lot 1, 3482 North Gregory Avenue Lot 9, 5767 West Robinson Avenue
Lot 2, 3470 North Gregory Avenue Lot 10, 5779 West Robinson Avenue
Lot 3, 3458 North Gregory Avenue Lot 11, 3386 North Vista Avenue
Lot 4, 3446 North Gregory Avenue Lot 12, 3374 North Vista Avenue
Lot 5, 3434 North Gregory Avenue Lot 13, 3362 North Vista Avenue
Lot 6, 3422 North Gregory Avenue Lot 14, 3350 North Vista Avenue
Lot 7, 3410 North Gregory Avenue Lot 15, 3338 North Vista Avenue
Lot 8, 5755 West Robinson Avenue Lot 16, 3326 North Vista 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 forthe 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 for Early Issuance
of Model Home Building Permits
Tract No. 5728
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 Developershall,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 ($1,000) per model home for a total amount of Sixteen
Thousand Dollars ($ 16,000 ) evidenced by 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. 5728
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
16 Lots @ $ 2,119 /Lot $ 33,904.00
Service Connection Charges - Water Meters per Lot
Lots 1-16 16 - 11/2" Meters @ $455.00 /each $ 7.280.00
Total Fees and Charges Due $41,184.00
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 or the performance of any
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5728
Page 6
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
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.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5728
Page 7
(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
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 terrnination or expiration of this Agreement.
Agreement for Early Issuance
of Model Home Building Permits
Tract No. 5728
Page 8
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. 5728
Page 9
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation
CENTEX HOMES, a Nevada General Partnership
By: Centex Real Estate Corporation, a Nevada
Planning and Development Department Corporation, its Managing Partner
Nick P. Yovino, Director
By. By:
eiti ' ergthold, Assistant Director aron Y r , Vice Pre ent o Entitlements
Central alley Divisio
(Attach Notary Acknowledgment)
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By:G.i' ,L1 - 71
J n W. Fox, Deputy City Attorney
Date: 7 Q fj n'p
STATE OF CALIFORNIA )
ss.
COUNTY OF TULARE )
On December 14, 2007, before me, MARY L. HEFLIN, Notary Public, personally
appeared AARON YORK, personally known to me(or proved to me on the basis of satisfactory
evidence)to be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
MARY L. HEFLIN WITNESS my hand and official seal.
Cornmiulon * 1759876
Notary Public -Callfornia i
Tulare County ,
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CLERK'S CERTIFICATION
State of California )
County of Fresno )
City of Fresno )
On December 28, 2007, before me, Elvia Sommerville, Deputy City Clerk, City of
Fresno, 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 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)
acted, executed the instrument.
WITNESS my hand and official seal.
REBECCA E. KLISCH
City Clerk, CMC
o
By
Deputy
EXHIBIT A
Agreement for Early Issuance of Model Home Building Permits for Tract No. 5728
The Northwest quarter of the Southwest quarter of Section 22, Township 13 South, Range 21 East,
Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California.
EXCEPTING THEREFROM any portion thereof lying within tract No.5316 recorded in Volume 78 of Plats
at pages 92 through 94, Fresno County Records.
ALSO EXCEPTING THEREFROM 25% of all oil, gas and minerals and other hydrocarbon substances
in and under the South half of the Northwest quarter of the Southwest quarter of said Section 22.
P.W. File No. 11067