HomeMy WebLinkAboutT-5078 - Agreement/Covenant - 2/15/2005 WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
1@/07/2@04120@40227341
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NO FEE-Government Code 6103
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CITY OF FRESNO
4.. V Planning and Development Department
C�l JAF: 6031, 6041, 6051, 6061, 6071 West Los Altos Avenue
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AGREEMENT FOR EARLY ISSUANCE OF MODEL
HOME BUILDING PERMITS TRACT NO. 5078
Agreement for Early Issuance of Model Home Building Permits
Tract No. 5078/UGM
Page 2
THIS AGREEMENT is made this 7th day of October 2004, by and
between the CITY OF FRESNO,a Municipal Corporation, hereinafter referred to as the"City,"and
Palo Alto/Bryan No. 1, Inc., a California Corporation, 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 at the
Southeast corner of West Palo Alto Avenue and North Bryan Avenue.
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,Vesting Tentative Map
No. 5078 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract
No. 5078, 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.
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:
Lot 65, 6031 West Los Altos Avenue
Lot 66, 6041 West Los Altos Avenue
Lot 67, 6051 West Los Altos Avenue
Lot 68, 6061 West Los Altos Avenue
Lot 69, 6071 West Los Altos 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
Agreement for Early Issuance of Model Home Building Permits
Tract No. 5078/UGM
Page 3
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 for the 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
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 Developer shall,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
Agreement for Early Issuance of Model Home Building Permits
Tract No. 5078/UGM
Page 4
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 Five Thousand
Dollars($5,000)evidenced by cash or 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.
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
5 Lots @ $ 2,119/Lot $ 10,595.00
Service Connection Charges -Water Meters
5 - 1" Meters @ $ 320/each $ 1,600.00
Total Fees and Charges Due $ 12,195.00
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.
Agreement for Early Issuance of Model Home Building Permits
Tract No. 5078/UGM
Page 5
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. The Developer agrees to indemnify, defend, and hold the City, 'its officers,
employees,and agents harmless from any claims,damages, liabilities or costs whatsoever arising
out of the performance of this Agreement.
11. 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. 5078/UGM
Page 6
CITY OF FRESNO, DEVELOPER:
a Municipal Corporation Palo Alto/Bryan No. 1, Inc., a California
Corporation
By: Robert A. McCaffrey, Pres dent
Nic P7p6vino, Director
Planni r
and Development Department
By:'� la
Brent M. M ffrey, - dent
APPROVED AS TO FORM:
HILDA CANTO MONTOY
City Attorney
a��By: (Attach Notary Acknowledgment)
Deputy
K:\Louisr\FT 5078\FORM Agreement Early Model Home FT5078
v07-02-04.wpd
STATE OF CALIFORNIA )
SS.
COUNTY OF FRESNO )
On September 3, 2004, before me, the undersigned, a Notary Public for the
State of California,personally appeared, Robert A. McCaffrey and Brent M.
McCaffrey,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 capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity(ies) on behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
L.S. My Commission Aires: nuary 21, 200
MICHELE L. MOGN
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CLERK'S CERTIFICATE
STATE OF CALIFORNIA )
COUNTY OF FRESNO ) ss.
CITY OF FRESNO )
On October 7, 2004 , before me, Erika Leyva personally
appeared Nick P. Yovino, Director Plann#ng acrd Development personally known to me
Department
(or provided to me on the basis of satisfactory evidence) to be the persons(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(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 seal.
REBECCA E. KLISCH, CMC
CITY CLERK
By
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EXHIBIT A
Tract 5078
Legal Description
That portion of Lots 287 through 293, inclusive, and Lots 328 through 333, inclusive, of J. C.
Forkner Fig Gardens Subdivision No. 3,recorded in Volume 8,page 79 of Plats, Fresno County
Records, located within Section 4, Township 13 South, Range 19 East, Mount Diablo Base and
Meridian, described as follows:
BEGINNING at a point on the South line of the Northeast Quarter of said Section 4, at the
intersection of the said South line and the Southerly production of the East line of said Lots 293
and 328; thence South 89°38'17" West, along the South line of said Northeast Quarter, also
being along said centerline of West Sierra Avenue as shown on said J. C. Forkner Fig Gardens
Subdivision No. 3, a distance of 1,101.52 feet; thence Northwesterly along a non-tangent curve,
whose radius point bears North 22°29'26" East, concave to the Northeast, having a radius of
1,855.00 feet, through a central angle of 26°45'40", a distance of 866.41 feet; thence North
40°44'54" West, a distance of 731.90 feet to the intersection with the centerline of Arthur Avenue
as shown on said J. C. Forkner Fig Gardens Subdivision No. 3, said centerline of Arthur Avenue
being parallel with and 30.00 feet West of the West line of said Lot 287; thence North 0'26'18"
East, along said centerline of Arthur Avenue, a distance of 148.95 feet; thence South 89°33'41"
East, a distance of 30.00 feet to the intersection with the West line of said Lot 287; thence North
49°32'04" East, along the South line of the West Palo Alto Avenue right-of-way as per the grant
deed recorded September 30, 2002 as Document No. 2002-0170696, Fresno County Records, a
distance of 15.76 feet; thence Northeasterly along a tangent curve, said curve being the said
South line of the West Palo Alto Avenue right-of-way, concave to the Southeast, having a radius
of 220.00 feet, through a central angle of 27°53'24", a distance of 107.09 feet; thence North
0°20'22" West, a distance of 35.00 feet to the intersection with the centerline of West Palo Alto
Boulevard as shown on said J. C. Forkner Fig Gardens Subdivision No. 3; thence North
89°39'48" East, along said centerline of West Palo Alto Boulevard,parallel with and 35.00 feet
North of the North line of said Lots 287 through 293, inclusive, a distance of 2,149.20 feet to the
intersection with the Northerly production of the East line of said Lots 293 and 328; thence
South 0°31'37" West, along said East line and its Northerly and Southerly productions, a distance
of 1,304.57 feet to the Point of Beginning.
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