HomeMy WebLinkAboutT-5977 - Agreement/Covenant - 4/19/2011 r i
WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street, Room 2133
41181?811,1011005
Fresno, CA 93721-3603
3136
NO FEE- Government Code 6103
CITY OF FRESNO
Development & Resource Management Department
ccO
LL JAF: 2297 East Turnberry Avenue (Lot 1)
Z 2281 East Turnberry Avenue (Lot 2)
V 2265 East Turnberry Avenue (Lot 3)
W 2249 East Turnberry Avenue (Lot 4)
LU 10509 North Sierra Vista Avenue (Lot 5)
d 10523 North Whitney Avenue (Lot 53)
J 10530 North Sierra Vista Avenue (Lot 75)
LL
COVENANT FOR EARLY ISSUANCE OF
MODEL HOME BUILDING PERMITS FOR THE FINAL MAP OF
TRACT NO 5977 AND SUBORDINATION
Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 2
THIS COVENANT is made by and between the CITY OF FRESNO, a Municipal
Corporation, hereinafter referred to as "City," and BN Hudson Ranch L.P., a California
Limited Partnership, hereinafter referred to as "Covenantor" without regard for number or
gender, and is effective the date first appearing on the Clerk's Certification of the Development
& Resource Management Department signature.
RECITALS
A. Covenantor 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 Covenant, which is generally
located on the northwest corner of the intersection of East International and North Chestnut
Avenues.
B. Covenantor 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 a part of this
instrument.
C. Covenantor has filed and City has approved, Vesting Tentative Map No. 5966 on
the Subject Property. Addi-tionally, Covenantor has filed a Final Map of Tract No. 5977 (Phase 2
of said Tentative Map), 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. Covenantor 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. City approved and recorded the Agreement For Early Issuance of Model Home
Building Permits Tract No. 5966 (Phase 1 of said Tentative Map) on September 2, 2010, as
Document No. 2010-0113882, Fresno County Records for 11 lots thereon.
F. In addition to the 11 lots approved by said Agreement, Covenantor has filed
building plans for 7 additional model homes and has requested City to 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:
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 3
Lot 1 2297 East Turnberry Avenue
Lot 2 2281 East Turnberry Avenue
Lot 3 2265 East Turnberry Avenue
Lot 4 2249 East Turnberry Avenue
Lot 5 10509 North Sierra Vista Avenue
Lot 53 10523 North Whitney Avenue
Lot 75 10530 North Sierra Vista Avenue
G. Such building permits will be issued and inspected in accordance with City codes
and regulations.
H. City is unwilling to permit such construction or inspect the 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. Covenantor acknowledges any improvements to be made pursuant to building
permits to construct model homes on the Subject Property will be accepted by City only if the
improvements comply with all applicable City standards, codes, and ordinances, provided that in
no case shall acceptance of such improvements be complete until the Final Map is approved by
the City Council and duly recorded.
J. Covenantor understands and acknowledges that the improvements described
herein shall be subject to acceptance or rejection by City upon inspection thereof, and upon the
terms and conditions contained herein.
K. Covenantor desires the building permits for the model homes be issued as soon
as possible.
L. The action for the approval of the Final Map by City is not expected to be
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 4
finalized for up to one hundred twenty (120) days.
COVENANT
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 City not approve the Final Map for any reason within one hundred twenty
(120) days of the execution of this Covenant, Covenantor shall, within ten (10) days after written
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 Covenantor shall restore the
Subject Property to its condition immediately prior to the addition of any improvements or
construction undertaken pursuant to the building permits issued for the model homes.
2. Should Covenantor fail to comply with the provisions of Paragraph 1 above, 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 condition immediately prior to the addition of any improvements or construction undertaken
pursuant to the building permits issued for the model homes.
3. Should City cause such removal under the provisions of Paragraph 2 hereof,
Covenantor shall hold harmless and defend 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 contained herein, Covenantor shall deliver to City a
Certificate of Deposit made payable only to the "City of Fresno" or cash for the following
amount:
7 Model Homes @ $1,000 per Model Home $7,000
This deposit may be used by 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
Covenantor.
5. Any costs and expenses of removal exceeding the above stated amount of
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 5
security deposit shall be a lien on the Subject Property and appurtenances running in favor of
City if said costs and expenses of removal are stated in writing with a description of the Subject
Property by an officer or employee of City and recorded in the County Recorder's office.
6. Covenantor has paid the fees and charges due as a condition of approval of this
Covenant for the model homes as follows:
7.
SEWER CONNECTION CHARGE -Wastewater Facilities Charge
7 Lots @ $2,119.00 per Lot $14,833
WATER CONNECTION CHARGE - Water Meter Charge
7 Lots @ $330 per Lot, 1" Meter $ 2,310
TOTAL FEES AND CHARGES DUE* $17,143
* 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.
8. The obligations of Covenantor provided in this Covenant are joint and several.
9. This Covenant shall in no way be construed as a grant by City of any rights to
Covenantor to trespass upon land rightfully in the possession of, or owned by, another, whether
such land is privately or publicly owned.
10. No vested rights or entitlements are conferred by the issuance of this early model
home building permit or by acceptance of any improvements constructed thereunder.
11. Indemnification.
a. To the furthest extent allowed by law, Covenantor 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, Covenantor or any other
person, and from any and all claims, demands and actions in law or equity (including
attorney's fees, litigation and legal expenses incurred by City or held to be the liability of
City, including plaintiff's or petitioner's attorney's fees if awarded, in connection with
City's defense of its actions in any proceeding), arising or alleged to have arisen directly
or indirectly out of performance or in any way connected with: (i) the making of this
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 6
Covenant; (ii) the performance of this Covenant; (iii) the performance or installation of
the work or improvements by Covenantor and Covenantor's employees, officers, agents,
contractors or subcontractors; (iv) the design, installation, operation, removal or
maintenance of the work and improvements; or (v) City's granting, issuing or approving
use of this Covenant.
b. Covenantor's obligations under the preceding sentence shall apply
regardless of whether City or any of its officers, officials, employees or agents are
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused solely by the gross negligence, or caused by the willful misconduct, of
City or any of its officers, officials, employees, agents or authorized volunteers.
C. If Covenantor should subcontract all or any portion of the work to be
performed under this Covenant, Covenantor 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 paragraphs "a" and "b" of this
Section. 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
inderrinity requirements set forth in paragraphs "a" and "b" of this Section, be required to
indemnify, hold harmless and defend City and each of its officers, officials, employees,
agents 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
Covenant.
d. Covenantor 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 Covenantor at all times prior to final acceptance by City of
the completed street and other improvements thereon and therein.
e. This Section shall survive termination or expiration of this Covenant.
12. Insurance. Throughout the life of this Covenant, Covenantor 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
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 7
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
Covenant), 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, and
$10,000,000 general aggregate.
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 — Any Auto), with combined
single limits of liability of not less than $5,000,000 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 Covenantor), with limits of
liability of not less than $1,000,000 per claim/occurrence and $2,000,000 policy
aggregate.
d. WORKERS' COMPENSATION insurance as required under the California
Labor Code.
e. 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.
Covenantor shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and Covenantor 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
Covenant, Covenantor shall provide a new certificate evidencing renewal of such
policy(ies) 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, Covenantor shall file with City a new certificate and all applicable endorsements for
7
Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 8
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 Covenantor'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 five (5) year discovery period, or (ii) the coverage shall be
maintained for a minimum of five (5) years following the termination of this Covenant and the
requirements of this Section relating to such coverage shall survive termination or expiration of
this Covenant. Any Workers' Compensation insurance policy shall contain a waiver of
subrogation as to City, its officers, officials, agents, employees and volunteers.
Covenantor shall have furnished City with the certificate(s) and applicable
endorsements for ALL required insurance prior to City's execution of the Covenant.
Covenantor 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 Covenant or any extension, and this requirement shall
survive termination or expiration of this Covenant.
The fact that insurance is obtained by Covenantor or his/her/its subcontractors shall not
be deemed to release or diminish the liability of Covenantor or his/her/its subcontractors
including without lirnitation, liability under the indemnity provisions of this Covenant. 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 Covenantor or
his/her/its subcontractors. Approval or purchase of any insurance contracts or policies shall in
no way relieve from liability nor limit the liability of Covenantor, its principals, officers, agents,
employees, persons under the supervision of Covenantor, vendors, suppliers, invitees,
subcontractors, consultants or anyone employed directly or indirectly by any of them.
If at any time during the life of the Covenant or any extension, Covenantor 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 Covenantor, or its contractors or subcontractors,
immediately discontinue any further work under this Covenant 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 Covenantor shall be withheld until notice is received by City that the
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 9
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 Covenant.
If Covenantor should subcontract all or any portion of the services to be performed under
this Covenant, Covenantor 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 Covenantor and City prior to the commencement of any work
by the subcontractor.
13. This Covenant shall be of no further force and effect upon recordation of the
Final Map duly approved by the City Council. The Certificate of Deposit or cash assurance
referenced in Paragraph 4 shall be released or refunded to Covenantor subject to processing
fees, if any, set forth in the Master Fee Schedule in effect at the time of the release or refund.
14. This Covenant shall burden the Subject Property described and constitute a
covenant running with the land in favor of and for the benefit of City and its property; be
enforceable by City by any legal or equitable means; and shall be binding upon the successor,
assigns, transferees, and heirs of Covenantor.
15. If either party is required to commence any proceeding or legal action to enforce
or interpret any term or condition of this Covenant, the prevailing party in such proceeding or
action shall be entitled to recover from the other party its reasonable attorney's fees and legal
expenses. For the purposes of this Covenant, "attorneys' fees" and "legal expenses" include,
without limitation, paralegals' fees and expenses, attorneys, consultants fees and expenses,
expert witness fees and expenses, and all other expenses incurred by the prevailing party's
attorneys in the course of the representation of the prevailing party in anticipation of and/or
during the course of litigation, whether or not otherwise recoverable as "attorneys' fees" or as
"costs" under California law, and the same may be sought and awarded in accordance with
California procedure as pertaining to an award of contractual attorneys' fees.
16. The waiver by either party of a breach by the other of any provision of this
Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either
the same or a different provision of this Agreement. No provisions of this Covenant may be
waived unless in writing and signed by all parties to this Covenant. Waiver of any one provision
herein shall not be deemed to be a waiver of any other provision herein.
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Page 10
17. The provisions of this Covenant are severable. The invalidity or unenforceability
of any one provision in this Covenant shall not affect the validity or enforceability of the other
provisions, which shall remain in full force and effect.
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Covenant for Early Issuance
of Model Home Building Permits
Final Map of Tract No. 5977
Date: A Pfd(L /00 --1-6//
CITY OF FRESNO, COVENANTOR:
a Municipal Corporation
BN Hudson Ranch L.P.,
Development & Resource a California Limited Partnership.
Management Department
By: Bonadelle Homes, Inc.,
a California Corporation as the sole
General Part
By:
Mark Scott, n A. Bonadelle, President
Interim Director
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By:
Shannon haffin
Senior Deputy City Attorney
Date:
(Attach Notary Acknowledgment)
STATE OF CALIFORNIA,
COUNTY OF Fresno
On April 5, 2011 , before me, Arora M. Rerm3 ,
a Notary Public, personally appeared
Jd-ni A. Bonadelle
who proved to me on the basis of satisfactory evidence to be the person( ) whose name(s')
is/ate subscribed to the within instrument and acknowledged to me that he/Rhtftfrey
executed the same in hist authorized capacity4es), and that by his/heE44aeir
signature(,) 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 my hand and fficial seal.
Signatur ANNA M. RENNA
"�Ek COMM. #1759837
C NOTARY PUBLIC-CALIFORNIA
• FRESNO COUNTY
F AN' My Comm.Expires Aug.30,2011
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On April 18 , 2011, before me, Cindy Bruer, Deputy City Clerk, personally appeared
Mark Scott, Interim Director of the Development and Resource Management
Department for the City of Fresno who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to be 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.
I certify under PENALTY OR 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
By
Dervuty
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on April 01, 2011 in the office of the Fresno County
Recorder as Document No. 2011-0045562-00 of which the Deed of Trust in by
and between: BN Hudson Ranch, L.P. , as Trustor,
First American Title Insurance Company as Trustee,
and Housing Qapjtal Company as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Covenant For Early Issuance of Model Home Building Permits for the Final Map of
Tract No. 5977,
DATED: April 06 ' 2011
BENEFICIARY
By:
Name: Jason Subia
Title: Vice Pres,ident .
By:
Name:
Title:
(Beneficiary to print/type document information,Name,Title and
attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(a) whose name(.&) is/a-Fe subscribed to the
within instrument and acknowledged to me that
Reams &HAROLD he/shai4#ey executed the same in hisAier�their authorized
Commission#r ROLD 2 capacibj{"), and that by his/� signature(✓s) on the
"-: Notary Public-California i instrument the personH, or the entity upon behalf of
Z Fresno County which the person(e) acted, executed the instrument.
My Comm. Expires Oct 28,2014
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.
Signature
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
Mei: III,
❑ 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:
@2007 National Notary Association•9350 De Solo Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402-www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827
EXHIBIT A
Real property in the City of Fresno, County of Fresno, State of California,
described as follows:
Outlot C of the Final Map of Tract No. 5966 according to the map thereof recorded
September 22, 2010 in Volume 81 of Plats, Pages 69 and 70, Fresno County
Records.
APN: 578-010-50