HomeMy WebLinkAboutT-5966 - Agreement/Covenant - 9/2/2010 9 '
WHEN RECORDED MAIL TO:
City Clerk 0910212010,20100113882
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
NO FEE-Government Code 6103
CITY OF FRESNO
0 Development & Resource Management Department
Z JAF: 10684 N. Dearing Ave. (Lot 48)
010696 N. Dearing Ave. (Lot 49)
0 2468 E. Prestwick Ave. (Lot 50)
QLJJ 10695 N. Recreation Ave. (Lot 58)
2401 E. Prestwick Ave. (Lot 62)
J 2437 E. Prestwick Ave. (Lot 65)
.j 10639 N. Dearing Ave. (Lot 68)
10627 N. Dearing Ave. (Lot 69)
10646 N. Bonadelle Ave. (Lot 74)
10631 N. Bonadelle Ave. (Lot 78)
2355 E. Pinehurst Ave. (Lot 84)
APN: 578-010-14
AGREEMENT No. 2 FOR EARLY ISSUANCE OF
MODEL HOME BUILDING PERMITS FOR THE FINAL
MAP OF TRACT NO. 5966, PHASE 1 OF VESTING
TENTATIVE MAP NO. 5966 AND SUBORDINATION
Agreement No.2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 2
THIS AGREEMENT is made this day of CkLLS-T- , 201 y , by and
between the CITY OF FRESNO,a Municipal Corporation, hereinafter referred to as the"City,"and
BN Hudson Ranch L.P., 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 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 at
the northwest intersection of East International Avenue and North Chestnut Avenue.
B. The Developer herebywarrants 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 has approved, Vesting Tentative Map No.5966
on the Subject Property. Additionally,the Developer has filed a Final Map of Tract No. 5966, Phase
1 of said Vesting Tentative Map No. 5966, hereinafter referred to as the"Final Map"pursuant to said
Vesting 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 for the Final Map of Tract No. 5966, Phase 1 of Vesting Tentative Map No. 5966
Agreement No.2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 3
and Subordination on July 16,2010, as Document 2010-0090462, Fresno County Records for Lots
12 through 14, inclusive and Lots 47-51, inclusive (Agreement No. 1).
F. In lieu of the lots approved in said Agreement No. 1,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 48 10684 North Dearing Avenue
Lot 49 10696 North Dearing Avenue
Lot 50 2468 East Prestwick Avenue
Lot 58 10695 North Recreation Avenue
Lot 62 2401 East Prestwick Avenue
Lot 65 2437 East Prestwick Ave
Lot 68 10639 North Dearing Avenue
Lot 69 10627 North Dearing Avenue
Lot 74 10646 North Bonadelle Avenue
Lot 78 10631 North Bonadelle Avenue
Lot 84 2355 East Pinehurst Avenue
G. Such building permits will be issued and inspected in accordance with City 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
Agreement No. 2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 4
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 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 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 afterwritten
notice from the Director of the Development & Resource Management Department of the City,
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 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 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
Agreement No. 2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 5
reason of such removal.
4. To assure the promises herein contained, the Developer shall deliver to the City a
Certificate of Deposit made payable only to the City of Fresno or cash, for the following amount:
11 Model Homes @ $1,000 per Model Home $11,000
NOTE: The Developer,pursuant to Agreement No. 1, delivered a cash deposit to the City for
8-lots in the amount of $8,000 which Developer agrees shall be retained by the City in
conjunction with an additional$3,000 deposit for the additional 3-lots to provide the required
total deposit due ($11,000) for this Agreement.
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
running in favor of the City.
6. The Developer shall pay 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
11 Lots @ $2,119 per Lot $23,309
NOTE: The Developer,pursuant to Agreement No. 1,paid the Wastewater Facilities Charge
for 8-Lots in the amount of $16,952; Developer shall pay an additional $6,357 for the
additional 3-lots to provide the required total Wastewater Facilities Charges due($23,309)for
this Agreement.
Agreement No.2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 6
WATER CONNECTION CHARGE -Water Meter Charge
9 Lots @ $330 per Lot, 1" Meter $2,970
2 Lots @ $455 per Lot, 1.5" Meter $910
NOTE: The Developer,pursuant to said Agreement No. 1,paid the Water Meter Charge for 8-
lots in the amount of $2,640; Developer shall pay an additional $1,240 ($910 for 2-lots
requiring 1.5" water meters and $330 for 1-lot requiring 1" water meter) to provide the
required total Water Meter Charges due ($3,880) for this Agreement.
TOTAL FEES AND CHARGES DUE* $27,189
*Additional fees and charges required pursuant to the conditions of approval for the Tentative Map,
shall be due and payable as a condition of approval of the Final Map.
NOTE: The Developer, pursuant to said Agreement No. 1, paid Fees and Charges in the
amount of$19,592;Developer shall pay an additional$7,597 for the required Total Fees and
Charges due ($27,189) for this Agreement.
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 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 No. 2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 7
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
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 Developer should subcontract all or any portion of the work 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 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
Agreement No.2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 8
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 Developer 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
Developer 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.
11. Insurance. 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:
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
damagec 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 Developer), 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
Agreement No.2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No.5966
Page 9
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.
Developer shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and Developer 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 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 Developer'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 five (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,
Agreement No. 2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 10
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.
The fact that insurance is obtained by Developer or his/her/it's subcontractors shall not be
deemed to release or diminish the liability of Developer, or his/her/it's subcontractors including
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 Developer 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 Developer, its principals, officers, agents, employees, persons
under the supervision of Developer, 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, Developer fails to maintain
the required insurance in full force and effect, the Director of Public Works for the City, or his/her
designee, may order that the Developer, 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 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.
Agreement No. 2 for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5966
Page 11
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,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 Developer and City prior to the commencement of any work by the subcontractor.
12. Upon recordation of this Agreement, said Agreement No. 1 shall be of no further
force and effect.
13. The shall be returne a 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. This Agreement shall burden the Subject Property described and constitute a
covenant running with the land in favor of and for the benefit of the City 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. 5966
Page 12
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation BN Hudson Ranch L.P.,
Development & Resource Management a California Limited Partnership.
Department
John M. Dugan, AICP, Director By. Bonadelle Homes, Inc.,
a California Corporation as the sole
General Pa
By.
y rtr--
By: DArs—
Try,
'shop, Assista director
ry
By. A. Bonadelle, President
APPROVED AS TO FORM:
JAMES C. SANCHEZ _
City Attorney
By:
Sh on C ffin
W/rzz'�
City Attorney
Date:
(Attach Notary Acknowledgment)
STATE OF CALIFORNIA,
COUNTY OF Fresrn
On A>gust 19, 2010 , before me, Arm M. Ren-n ,
a Notary Public, personally appeared
Jd n A. elle
who proved to me on the basis of satisfactory evidence to be the person) whose name
is/aF&subscribed to the within instrument and acknowledged to me that he/s4e4h4wf
executed the same in his/ho;4heir.authorized capacity(ies};and that by his/har-4hair
signature(4 on the instrument the person((), or the entity upon behalf of which the
person() 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.
(Notary seal or stamp)
WITNESS myhand and off tial seal.
*My
ANNA M. RENNA
Signature ' COMM.#1759837
NOTARYPUBLIC-CALIFORNIA
FRESNO COUNTY
Comm.Expires Aug.30,2011
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On August 30, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared,
Jerry D. Bishop, Assistant Director of Development & Resource Management 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
clt4 OF Pp 1#
O
By
IL/ n r
_ �
Deputy ''E�o�* ��
EXHIBIT A
Real property in the City of Fresno, County of Fresno, State of California, described
as follows:
The Southeast Quarter of the Northwest Quarter of Section 13, Township 12 South,
Range 20 East, Mount Diablo Base and Meridian.
APN: 578-010-14
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of
Trust recorded on May 3,2010 in the office of the Fresno County
Recorder as Document No. 2010-0056413 of which the Deed of Trust in by
and between: BN HUDSON RANCH L.P.,A CALIFORNIA LIMITED PARTNERSHIP , as Trustor,
FIRST AMERICAN TITLE INSURANCE COMPANY , as Trustee,
and HOUSING CAPITAL COMPANY,A MINNESOTA PARTNERSHIP as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Agreement No.2 For Early Issuance of Model Home Building Permits for the Final Map
of Tract No. 5966
DATED: August 20, ' 2010
BENEFICIARY
By:—
Jason Subia
Vice President
Housing Capital Company
By:
(Beneficiary to print/type document information, Name,Title
and attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California n
County of 9_ ,,�`^�r�1,,wr 1
On . )6 Q-t)lo before me,
Date Here Insert Name and Title of the Officer
personally appeared J ad6i-1
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(g) is/ale subscribed to the
within instrument and acknowledged to me that
he/sheAhey executed the same in his/he€ftheir authorized
RNONDA HAROLD capacity(+es), and that by his/+tet`fthreir signature(s) on the
Commission #► 1701479 instrument the person(s), or the entity upon behalf of
�';•�+ Notary Public -California which the person(G) acted, executed the instrument.
: Fresno County
MVCarwn.80ftOCf2a,2010 t 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 seal.
Signature P-�
Place Notary Seal Above Signature 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 ❑ General
❑ Attorney in Fact ❑Attorney in Fact •
❑ Trustee Top of thumb here ❑Trustee Top of thumb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
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