HomeMy WebLinkAboutT-5137 - Agreement/Covenant - 6/8/2005 When Recorded Mind To:
City Clerk
M City of Fresno
0 2600 Fresno Street
LL, Fresno, CA 93721-3603 120050103491
Z
O
V NO FEE-GOVERNMENT CODE 6103
N and 27383
Q
W
CITY of FRESNO
Public Works Department
P.W. File No. 10676
AGREEMENT TO ADVANCE CONSIDERATION
OF THE FINAL MAP FOR TRACT 5137
AGREEMENT TO ADVANCE CONSIDERATION
OF THE FINAL MAP FOR TRACT 5137
Date: �1P.2)'L 1 zaas
Parties:
(1) CENTEX HOMES,a Nevada General Partnership,owners of Tentative Tract
No. 5137 ("Subdivider")
(2) CITY OF FRESNO, a Municipal Corporation ("City")
RECITALS
Whereas, CENTEX HOMES, a Nevada General Partnership designated and
referred to as the "Subdivider," is the owner of the real property designated as the Final
Map of Tract No. 5137 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 131, inclusive, of Tract No. 5137 according to the map thereof
recorded on Mall ID . 2005 in Volume ?Z of Plats at
Page(s) Lav f7,v%)? , Fresno County Records; and Subdivider is owner of Subject
Property as represented in Tentative Tract 5137; and,
Whereas, Subdivider desires City to act on the Final Map for Subject Property at the
City Council meeting on April 12, 2005; and,
Whereas, Subdivider as a condition of approval to the Subject Property was required
to either form a homeowners association or petition the City to annex the Subject Property
to Communities Facility District No. 2 ("CFD-2") to maintain landscaping; and,
Whereas, Subdivider elected to petition the City to annex the Subject Property to
CFD-2 and the annexation process was completed on August 31, 2004; and,
Whereas,the costs for the City of Fresno to maintain the landscaping for the Subject
Property has increased higher than the Maximum Special Tax ("Tax") and permitting the
Subject Property to be approved at the current Tax would force contributions from the
T
General Fund to maintain the landscaping; 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
procedure requires approximately 10 weeks to complete; and,
Whereas, the Subdivider wants Final Map for the Subject Property to go to Council
for approval on April 12, 2005; and,
Whereas, the hearing for the Change of Services for the Subject Property cannot
be heard prior to May 17, 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 5137 before the Change
of Services for the Subject Property has occurred,the City is requiring that Subdivider enter
into an agreement to ensures that Subdivider will not sell any portion of the Subject
Property (Tract 5137) 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 City becoming liable for installation and perpetual ongoing maintenance
of the landscaping and improvements required as a Condition of Approval to the Subject
Property; and,
Whereas, this Agreement is intended to insure that the Change of Services for the
Subject Property is not interfered with by actions of the Subdivider and the City's risk of
incurring ongoing perpetual liability in maintaining the landscaping for Tract 5137 is offset
by the Subdivider's personal assumption of responsibility for those improvements and
maintenance.
P
Agreements:
1. City agrees to proceed with acting on the Final Map for Tract 5137 on April 12,2005,
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 5137
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,butnot 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. Without limiting the generality of the foregoing,
Subdivider will not protest the amount of the Maximum Special Tax for CFD No. 2 which
has been calculated to be ($297.00)two-hundred ninety-seven dollars.
5. The City does not warrant that the Change of Services the Subject Property will be
completed and the City assumes no responsibility for landscaping and maintaining the
Subject Property if for any reason 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 5137.
8. If the Change of Services for CFD No. 2 for the Subject Property is not approved,
the Subdivider assumes responsibility for landscaping and maintenance costs required in
the Conditions of Approval for the Subject Property. The liability for such costs may be
assumed by a home owner's association subject to the City's reasonable approval of the
organizational documents of any such home owner's association.
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 landscaping improvements and
maintenance obligations as provided in this Agreement 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, Centex Homes, a Nevada General Partnership, as Subdivider, hereby guarantees
the performance of all of the terms and conditions of this Agreement.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation CENTEX HOMES,
a Nevada General Partnership
David D. Healey, Director By: Managing General Partner
Public Works Department CENTEX REAL ESTATE CORPORATION,
a Nevada Corporation
A- L�'By: By:
Michael T. Kim, Assistant Director Dad atc , 'vision Manager
APPROVED AS TO FORM:
Hilda Cantu Montoy (Attach Notary Acknowledgments)
CitT;:eiputy
By:
v.04-04-05
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of _72;IA-� ss ;}
I� }
On All 2C)Z)� before me, 1� j7Z,t1
p Name and Title of Officer(e.g.,"Jane Doe,Notary Public")
I
personally appearedl
Name(s)of Signer(s)
f personally known to me
❑ 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
V.C.PIATTON signature(s) on the instrument the person(s), or )
Commission*'1321111W the entity upon behalf of which the person(s)
Notary Public-California acted, executed the instrument.
Tulare County
10mycori-im.EzpiresNw21,2005 !
: - WITNE S my hand and official seal.
)
Place Notary Seal Above Signature of NotaryPublic )
( 1
l'
1
.j
l
f l
I
1
}
l
>I
1
( •1
I 1
0 1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nallonainotary.org Prod.No.5907 Reorder:Cell Toll-Free 1-600-676-6627
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO )
On April 15,2005, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
M.T. Kirn,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.
WI TNESSmy hand and official City Seal.
REBECCA E. KLISCH, CMC
CITY CLERK
�
By o
Deputy April 15,2005(3:05pm)