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Home My WebLink AboutT-4598 - Agreement/Covenant - 9/29/2005 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street - Fresno, CA 93721-3603 �91�91�5,2��5�230��6 o W NO FEE - Government Code 6103 O U CITY OF FRESNO Z Public Works Department O U AGREEMENT TO ADVANCE CONSIDERATION OF FINAL MAP NO. 4598, PHASE I OF VESTING TENTATIVE MAP NO. 4598 fpiry of PUBLIC WORKS DEPARTMENT City Hall Fresno 2600 Fresno Street, Room 4016 Fresno,CA 93721-3615 wnftmy Ph.559-621-8650 •FAX 559-488-1045 www.fresno.gov 2000 AGREEMENT TO ADVANCE CONSIDERATION OF FINAL MAP FOR TRACT 4598 Date: August 24, 2005 Parties: (1) LAFFERTY GDCI FRESNO LP, a Delaware Limited Partnership, owners of Tentative Tract No. 4598 ("Subdivider") (2) CITY OF FRESNO, a Municipal Corporation ("City") RECITALS Whereas, LAFFERTY GDCI FRESNO LP, a Delaware Limited Partnership designated and referred to as the "Subdivider," is the owner of the real property designated as Final Tract Map No. 4598 and situated in the City of Fresno, County of Fresno, State of California, hereinafter referred to as the "Subject Property" and more particularly described as: Lots 1 through 86, inclusive, of Tract No. 4598 according to the map thereof recorded on _ �f a9 20QZ in Volume X73 _ _ of Flats at Page(s) <o� �� _, Fresno County Records; and Subdivider is owner of Subject Property as represented in Tentative Tract 4598; and, Whereas, Subdivider desires City to act-on the Final Map for Subject Property at the City Council hearing on August 30, 2005; and, Whereas, Subdivider as a condition of approval to Vesting Tentative Map No. 4598 was required to either form a homeowners association or petition the City to annex the Subject Property to Communities Facility District No. 2 ("CFD No. 2") to maintain landscaping; and, Whereas, Subdivider as a separate condition of approval to Vesting Tentative Map No. 4598 was required to improve and maintain a five percent(5%) open space on the Subject Property("Open Space") to meet the requirements of the Roosevelt Community Plan; and, Whereas, Subdivider elected to petition the City to annex the Subject Property to CFD No. 2 to maintain the landscaping condition and the annexation process was completed on August 31, 2004; and, Whereas, after August 31, 2004, the Subdivider petitioned the City of Fresno to change the scope of services and the types of services to be financed by CFD No. 2 for the Subject Property to include improvement and maintenance of the Open Space; and, Whereas, to change the scope of services to include the Open Space improvement and maintenance will result in an increased Maximum Special Tax ("Tax"); and, Whereas, Mello-Roos Community Facilities Act of 1982, as amended, California Government Code,Title 5, Part 1,Chapter 2.5, beginning with Section 53311, (the"Act")requires a"Change of Services" procedure to raise the Maximum Special Tax and this pro .edure requires approximately 10 weeks to Ile y L complete; and, Whereas,the Subdivider wants the Final Map for the Subject Property to go to Council for approval on August 30, 2005; and, Whereas, the hearing for the Change of Services for the Subject Property cannot be heard prior to September 20, 2005 because of statutory noticing requirements; and, Whereas, selling any portion of the Subject Property prior to the completion of the Change of Services for the.Subject Property could interfere with noticing and timing with respect to the required CFD No.2 Change of Services process, potentially require re-noticing, and create difficulties in ascertaining property owners for statutory noticing requirements, and potentially allow new property owners to decline or stop the change; and, Whereas, as a condition to approving Final Map for Tract 4598 before the Change of Services for the Subject Property has occurred, the City is requiring that Subdivider enter into an agreement to ensure that Subdivider will not sell any portion of the Subject Property (Tract 4598) prior to the completion of the Change of Services for CFD No. 2 for the Subject Property; and, Whereas, the parties understand that should the Subdivider breach this agreement, it may result in the Subdivider being required to find other means for improving and maintaining the Open Space. Agreements: 1. City agrees to proceed with the hearing on the Final Map for Tract 4598_ on August 30, 2005, as presently scheduled. 2. In consideration of the provisions of Paragraph 1 above and except as provided below, Subdivider represents and warrants that it has not sold or entered any agreement to sell any portion of the real property which is the subject of the Final Map for Tract 4598 and there are absolutely no purchase and sale agreements, deposit receipts, conditional sales, escrows, deposits or other agreements of any kind contemplating any such sales 3. Subdivider, for itself and its successors and assigns, including, but not limited to, any subsequent owner of any portion of the subject real property, covenants and agrees that until the Change of Services for CFD No. 2 for the Subject Property has been completed in the manner required by law, Subdivider will not enter into any agreement contemplating the sale or other conveyance of all or any portion of the Subject Property. 4. Subdivider acknowledges its obligation and intention to cause the Subject Property to complete the Change of Services for CFD No. 2 subject to approval of such change by City in the manner provided by law. 5. The City does not warrant that the Change of Services for CFD No. 2 will be completed and the City assumes no responsibility for landscaping and maintaining the Open Space or any other improvement the Subdivider is responsible for under the Conditions of Approval for Vesting Tentative Tract NO. 4598/UGM 519, if for any reason the Change of Services for CFD No. 2 is not completed. 6. Subdivider agrees to pay any additional costs incurred by the City to process CFD No. 2 caused by,Subdivider's actions on a time and material basis. 7. Subdivider will be responsible for, and shall indemnify, defend, hold the City harmless from additional costs and/or claims resulting from CFD No.2,this Agreement, and the Final Map for Tract 4598. 8. If the Change of Services for CFD No.2 for the Subject Property is not approved, Subdivider will still be required to comply with the condition of approval on Vesting Tentative Tract No. 4598/UGM 519 to improve and maintain the Open Space. 9. This Agreement shall terminate and be of no further force or effect upon completion of the Change of Services for the Subject Property. 10. The provisions of this Agreement 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 provision hereof. Whenever the context so requires, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. 11. This agreement shall not be construed to limit the parties' rights and obligations at law and in equity. 12. In the event the Change of Services for CFD No. 2 for completion of the Change of Services for the Subject Property is not approved and the improvement and maintenance obligations of the Open Space are breached, the Subdivider agrees to grant a lien for the benefit of the City in any property the Subdivider retains in the Subject Property at the time the breach occurs, in an amount that the Public Works Director determines is adequate to secure ongoing maintenance costs and any unmet improvement costs for the Subject Property. Subdivider hereby agrees that in the event of breach as described in this paragraph, the City may record a lien on real property in the City of Fresno owned by the Subdivider upon thirty(30) days written notice to the Subdivider of breach and opportunity to correct and upon Subdivider's failure to correct. In addition to such lien rights, LAFFERTY GDCI FRESNO LP, a Delaware Limited Partnership, as Subdivider, hereby guarantees the performance of all of the terms and conditions of this Agreement. CITY OF FRESNO, SUBDIVIDER a Municipal Corporation LAFFERTY GDCI FRESNO LP, a Delaware BY: Limited Partnership MICHAEL T. KIRN, PE Assistant Director LAFFERTY/LANDCASTLE, LLC, a California Department of Public Works Limited a General Partner By. .- Rick L erty, Managing Member APPROVED S TO FORM: Hilda Can Y CIyA o e By: Deputy c: Public Works File#9955 f vµ CLERK'S CERTIFICATION y STATE OF CALIFORNIA ) CO UNTY OF FRESNO ) CITY OF FRESNO ) On September 2, 2005, before me, Elvia Sommerville, Deputy City Clerk, personally appeared, Michael T. Kirn, P.E., Assistant Public Works Director , known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) 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(s) the person(s), or the entity upon behalf of the City of Fresno of which the person(s) acted, executed the instrument. WITNESS my hand and official City Seal. REBECCA E. KLISCH, CMC CITY CLEW... ' By Deputy�--'' September 2 20.05(8:41 am) ^ -