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HomeMy WebLinkAboutT-4320 - Agreement/Covenant - 7/5/2006 (2) RETURN TO: 921 13963 ,;jiWtt.AI ►N_"F..J, tot CITY OF FRESNO WORD TITS .:OMPAW DEVELOPMENT DEPARTMENT 2600 Fre®o Street FRESNO CA 93721-3604 MK PAST M AUG 14 1992 FRESNO COUNT r.�,,..•ORPNA P i c A`` CONFORM WHIJAM C.GREENWOOD. County RecordW lFip-------------------SPACE ABOVE FOR REC'UfER ' ?EDSE-R-- ------- P.W. File No . 9211 Development Department Tract No . 4320 City of Fresno STATEMENT OF COVENANTS DISCLOSURE AND INDEMNITY "RESTRICTIONS REGARDING ISSUANCE OF BUILDING PERMIT REGARDING ACCELERATED OVERSIZE SEWER CHARGE FEE DEFERRAL" (TRACT NAP NO. 4324) . VILLAGE GREEN o- RECITALS WHEREAS, TnT Ventures , a California General Partnership, hereinafter referred to as "the Covenantor, " is the owner of that certain real property in the City of Fresno, County of Fresno, State of California, hereinafter referred to as "the Subject Property, " and more particularly described in attached Exhibit "A" , said property being further subdivided by the final map of Tract No. 4320, consisting of fifty (50) lots ; and WHEREAS, the 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 WHEREAS, all such instruments of Subordination, if any are attached hereto and made a part of this instrument; and Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 2 WHEREAS, the Subject Property is required to comply with "Conditions of Approval" dated April 14 , 1991, and modifications to Condition 40 approved by Planning Commission June 17, 1992 , regarding the provision for permanent connection to the future Grantland Avenue trunk sewer main; and WHEREAS said modification to Condition 40 provides an alternative where the developer may pay at the issuance of the first building permit (excluding permits for model homes) the estimated Accelerated Oversize Sewer fee at $1, 000 per residential unit for the total 50 lots of said Final Map of Tract No . 4230 less any reimbursable credits; and WHEREAS, Covenantor acknowledges that this is an estimated fee only and upon adoption of the actual fee the developer will be refunded any excess fee paid above the adopted rate and developer shall agree to pay any difference if the fee rate is greater than the fee paid; and WHEREAS, the Subject Property is subject to an Accelerated Oversize Sewer fee in the estimated amount of Fifty Thousand and 00/100 Dollars ($50, 000 . 00) ; and WHEREAS, Covenantor desires to have a final tract map subdividing the Subject Property approved by the City of Fresno; and WHEREAS, Covenantor desires to defer payment of the Accelerated Oversize Sewer fee until such time as the issuance of the first building permit (excluding model homes) is requested by the Covenantor or his successors and assigns for such construction. Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 3 WHEREAS, the City of Fresno (CITY) is conditioning the issuance of building permits for model homes for the Final Tract Map to allow the construction of buildings within the development upon the Covenantor assuring that the model homes will not be occupied until payment of the Accelerated Oversize Sewer Charge . 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 issuance of building permits for model homes or by the acceptance of such construction upon inspection. COVENANTS. CONDITIONS. AND RESTRICTIONS For favorable action on, and approval of , the Covenantor ' s final tract map upon the Subject Property, as referred to hereinabove, Covenantor hereby covenants as follows : 1 . The Accelerated Oversize Sewer fees attributable to development of Subject Property estimated at Fifty Thousand and 00/100 Dollars ($50, 000 . 00) less any reimbursable credits shall be paid by the developer upon occupancy of the first model home at the issuance of the first Building Permits (excluding model homes) for structures to be built upon Subject property. 2 . Covenantor hereby waives any and all rights he may have pursuant to Government Code Section 65961 . The Covenantor hereby creates a lien upon the Subject Property to guarantee the performance of the obligations of the Covenantor contained in this statement . Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 4 3 . No building permits other than for model homes will be issued nor any human occupancy allowed for any building on the Subject Property until payment of the Accelerated Oversize Sewer fee. 4 . Covenantor will fully disclose in writing to the buyer, renter, lessee, or occupant of a lot, house or structure within said development the fact that the Accelerated Oversize Sewer fee must be paid prior to issuance of the first building permit . The purchaser, renter, lessee, or occupant of any such house or structure shall be required to sign an acknowledgement documenting his receipt and understanding of such notice, which acknowledgement shall be provided to the City at any time upon demand. 5 . If the entitlement is the approval of a map, Covenantor agrees to hold harmless, indemnify and defend the City against any claim, cause of action, litigation, or processed, for damages, losses or liabilities , including an award of attorney' s fees or costs, seeking to attack, set aside, void or annul the City' s foregoing approval of "THE ENTITLEMENT, " which condition may result in the issuance of building permit for any house or structure within the development until payment of fees to serve said subdivision as hereinabove provided. Pursuant to Government Code 66474 . 9 , City shall promptly notify owner of any such claim and cooperate fully, in its defense. As to other entitlements, and as to the issuance of building permits, Covenantor agrees to Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 5 indemnify, hold harmless, and defend the City and each of its officers , agents, and employees from any and all loss, liability, 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 attorney' s fees and legal expenses) , arising or alleged to have arisen directly or indirectly out of or in any way connected with (a) the making of this agreement; (b) performance or installation of the work or improvements by the Owner, its employees, officers, agents, contractors or subcontractors , or (c) design, installation, operation or maintenance of the work and improvements, regardless of whether the City is actively or passively negligent, except for liability, loss, costs or damage caused solely by the negligence or willful misconduct of the City or its officers, agents, or employees . 6 . Each of the covenants, conditions and restrictions contained in this Statement shall run with the Subject Property and shall be binding upon each successive owners of the Subject Property, his heirs, representatives, successors and assigns . Further, the provisions set forth in paragraphs 1 and 2 are intended to implement conditions of approval for issuance of building permits for ."THE ENTITLEMENT, " which condition of approval must be disclosed to buyers, renters, lessees or occupants of said parcels or buildings in the manner set forth in California Business Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 6 and Professions Code 11010 (b) (8) et seq . , notwithstanding the default, foreclosure, or bankruptcy of the Covenantor, its heirs, representative, successors or assigns . 7 . The conditions of this Statement are intended to benefit the public and public properties . Accordingly, the City of Fresno shall have the right to enforce this Statement by any legal or equitable means . All obligations of the Covenantor in this Statement shall inure solely to the benefit of the City of Fresno. There are no third party beneficiaries of said obligations nor shall the right of the City of Fresno be transferable in any manner to any person other than to a successor municipal corporation whose geographic boundaries include the Subject Property. 8 . The conditions and obligations of this Statement shall remain in full force and effect until such time as the Director of the Development Department of the City of Fresno issues a written release of such conditions and obligations . 9 . The provisions of this Statement shall be deemed independent and severable and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provisions hereof . Whenever the context of the Statement so requires, in interpreting this Statement, any gender includes the other genders, Statement of Covenants Disclosure and Indemnity Tract No . 4320/UGM 426 Page 7 DATED: -z8 1992 Accepted by: COVENANTOR CITY OF FRESNO, a Municipal TnT VENTURES, --T= Corporation a California General Partnership By: The Penstar Group a California Corporation General Par n rs By: �L /I By: - Thomas G. Richards lvin P. Soli Director President Development D artment APPROVED AS TO FORM: By: Tilden L. Brooks -rA. HARVEY WALLACE As General Partner City Attorney i Byre. putt' CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss . CITY OF FRESNO ) On this 3CH) day of � �- in the year �9z before me �� , personally appeared t personally known to me (or proved to me on the basis of satisfactory evid nce) to be the person who executed this instrument as Director of the Development Department and acknowledged to me that the City of Fresno executed it . JACQUELINE L. RYLE City Clerk MB:n f m: j l d By *a/y-n LAND279/+4444 Deputy I. STATE OF CALIFORNIA `,`��w OUR+or.A,11j,��+, N COUNTY OF Fresno SS. AP 3W-L '+. On IRIDP ifil, 1992 before me, ` (here insert name and title of officer), personally appeared —Thomas G. Richards E VIM WORLD TITLE COMPANY Tilden L. Brooks Jr.— FOR NQTARV SEAL OR STAMP 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 GLORIA R. FUENTES same in his/her/their authorized capacity(ies), and that COMM.#960107 by his/her/their signature(s) on the instrument the CO . NOoRyPU9uC-CALIFORNIA CD hINCIPAL OFFICE IN X1 person(s), or the entity upon behalf of which the person(s) m FRESNO COUNTY acted, executed the instrument. My Comm.,is=Exp Mar. 12,1996 WITNESS my ha official seal. Signature Gloria R. Fuen s wTC 279 EXHIBIT "A" LEGAL DESCRIPTION TRACT NO. 4320 ACCELERATED OVERSIZE SEWER CHARGE FEE DEFERRAL That portion of the North half of the Southeast Quarter of the Southwest Quarter of Section 15, Township 13 South, Range 19 East, Mount Diablo Base and Meridian, in the City of Fresno, State of California, according to the official plat thereof, in the office of the County Recorder of said County. Described as follows : Beginning at the Southeast corner of said North half thence North 89' 48 ' 15" West a distance of 675 . 12 feet thence North 00' 09 ' 20" East a distance 508 . 27 feet thence North 89' 50 ' 40" West a distance 12 .04 feet thence North 00' 09 ' 20" East a distance of 153 . 00 feet thence S 89' 50 ' 40" East a distance of 687 . 00 feet thence South 000 08 ' 32" West a distance of 661. 74 feet to the point of beginning. MB: jld LAND285/+4590