HomeMy WebLinkAboutT-5205 - Agreement/Covenant - 4/25/2006 P
Recording Requested By:
Recording Requested by
City Clerk, Fresno, California
No Fee-Govt. Code 6103
p� Return to City Clerk, Fresno
O
Z When Recorded, Return To: 0412512006,20060086101
U City Clerk
City of Fresno
Lu
U) 2600 Fresno Street
W Fresno, CA. 93721-3623
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SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT TO ADVANCE CONSIDERATION
OF FINAL TRACT MAP NO. 5205
Date: April 4, 2006
Parties:
(1) COPPER RIVER DEVELOPMENT COMPANY, INC., a California
corporation, owner of Vesting Tentative Tract Map No. 5205 ("Subdivider")
and COPPER RIVER RANCH, LLC, a California corporation ("Land
Owner"). Subdivider and Land Owner are jointly referred to in this
Agreement as the "Final Map Applicants."
(2) CITY OF FRESNO, a Municipal Corporation ("City")
RECITALS
A. The Final Map Applicants are the owners of the real property in the City
described in Exhibit A to this Agreement ("Property') which is incorporated herein by
reference;
B. Final Map Applicants represent and warrant that there always have been,
are presently and will always be, less than twelve (12) registered voters residing on the
Property as of the period commencing ninety (90) days before the execution of this
Agreement, and continuing thereafter through and until the conclusion of the
proceedings for the annexation of the Property into City of Fresno Community Facilities
District No. 12 (the "CFD") and the imposition of the special tax lien, such that the City
may proceed with and successfully complete the landowner voter election required
procedures for annexation into the CFD and recordation of the notice of special tax lien;
C. The Subdivider proposes to subdivide and thereafter develop the Property
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and has obtained approval from the City of a vesting tentative tract map for the Property
generally identified on Vesting Tentative Tract Map No. 5205 ("VTTM No. 5205"). In
order to record Final Tract Map 5202 ("Final Map 5205") pursuant to VTTM No. 5205
Final Map 5205 must substantially comply with the standards and ordinances of the City
in effect at the time VTTM No. 5205 was approved and with the general conditions of
approval for VTTM No. 5205, and Land Owner is cooperating with Subdivider in this
process;
D. Final Map Applicants, as a condition of approval of Final Map 5205, are
required to either form a home owner's association or petition the City to annex the
Property to the CFD to maintain the following (collectively "Services"):
1. Landscape Maintenance
2. Project Trail Maintenance
3. Roundabout Maintenance
4. Decorative Paving Maintenance
5. Project Entry Feature Maintenance
6. Vista Point Maintenance
7. Connections to Regional Trails
8. Sidewalk Maintenance
9. Project Signage Maintenance
10. Street Lighting Maintenance
11. Street Sign Maintenance
12. Median Island Maintenance;
E. Final Map Applicants have elected to petition the City to annex the
Property to the CFD, and acknowledge and agree that the City will proceed with the
establishment and implementation of the CFD under such landowner voter election
procedures, based upon the representations and warranties of the Final Map Applicants
set forth herein;
F. The costs for the City to provide the Services for the Property are subject
to re-evaluation and the City is unable to process the annexation for the Property at this
time;
G. The Subdivider wants Final Map 5205 to go to Council for approval on
April 4, 2006, which is prior to completion of the CFD annexation process;
H. Selling or otherwise transferring title to any portion of the Property prior to
the completion of the annexation process for the Property could interfere with noticing
and timing with respect to the required CFD annexation 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
annexation;
I. As a condition to approving Final Map 5205 before the CFD annexation
process for the Property has occurred, the City is requiring that Final Map Applicants
enter into an agreement to ensure that Final Map Applicants will not sell or otherwise
convey title to any portion of the Property prior to the completion of the annexation of
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the Property into the CFD;
J. The parties understand that should the Final Map Applicants breach this
Agreement, it may result in the City becoming liable for perpetual ongoing maintenance
Services required as a Condition of Approval of Final Map 5205; and
K. This Agreement binds Final Map Applicants for themselves and on behalf
of all future owners, lessees and transferees of any portion of the Property in order to
insure that the annexation process for the Property is not interfered with by actions of
the Final Map Applicants and the City's risk of incurring ongoing perpetual liability in
maintaining the Services for the Property is offset by the Final Map Applicant's personal
assumption of responsibility for those improvements and maintenance.
AGREEMENT
1. The parties acknowledge and agree to the above Recitals and said
Recitals are incorporated herein as a matter of contract.
2. City agrees to proceed with the hearing on Final Map 5205 prior to
completion of annexation of the Property into the CFD.
3. In consideration of the provisions of Paragraph 2 above and except as
provided below, Final Map Applicants jointly and severally represent and warrant that
they have not and will not sell, convey or close escrow on sale or conveyance of title to
any portion of the Property which is the subject of Final Map 5205 prior to the
completion of the annexation of the Property into the CFD in accordance with applicable
law. Final Map Applicants shall give, or cause the escrow holder to give, a clear and
concise written notice to all potential purchasers stating that proceedings to establish
the CFD, impose the special tax and record the notice of special tax lien on the lot or
parcel to be purchased or transferred are pending and that the escrow shall not close
until completion of all such proceedings.
4. Final Map Applicants covenant and agree that no transfer of title to any lot
or other portion of the Property shall occur until the annexation of the Property into the
CFD has been completed to provide the Services and the Property becomes subject to
the imposition and lien of the special taxes imposed by the CFD.
5. Final Map Applicants acknowledges their obligation and intention to
complete the annexation of the Property into the CFD subject to approval of such
annexation by City in the manner provided by law. Without limiting the generality of the
foregoing, Final Map Applicants will not protest the amount of the Maximum Special Tax
for the CFD or the rate of the annual special tax (including inflationary adjustments
thereto)for the purpose of funding the provision of the Services, which shall be as
stated and mutually approved by Final Map Applicants and City in the "Special Tax Rate
and Method of Apportionment" required in connection with annexation into the CFD-
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Final Map Applicants and City contemplate that all proceedings to annex the Property
into the CFD and to record the special tax lien (but excluding the actual imposition of the
special tax levy) shall be completed no later than July 1, 2006. Final Map Applicants
acknowledge and agree that any further request to City to advance consideration of any
other final subdivision map shall require a separate and stand alone agreement
approved by City Council.
6. Final Map Applicants agree that the City may file its petition and request
with the City Council and that the City Council may proceed with the actions and
proceedings necessary to accomplish matters necessary to annex the Property into the
CFD. In that regard, to the greatest extent allowed by law, Final Map Applicants waive
any and all notices, minimum noticing periods, procedures and substantive
requirements which may otherwise be required under: (i) City of Fresno Special Tax
Financing Law (Chapter 22 of the Fresno Municipal Code) and/or the Mello-Roos
Community Facilities Act of 1982 (Chapter 2.5, commencing with Section 53311, of Part
1, Division 2, Title 5 of the California Government Code) (collectively the "Law'),
including, by way of example and without limitation, Article 2 (commencing with Section
53318) regarding the proceedings to establish a CFD, Sections 54950 through 54962 of
the Government Code regarding notices of and holding of public meetings, and Section
53739 of the Government Code, regarding the setting of the rate for special taxes,
including an inflationary adjustment; (ii)Article 3.5 of Chapter 1 of Part 1 of Division 1 of
Title 5 of the Government Code (Sections 50075 through 50077) regarding special
taxes, (iii) the applicable provisions of Article 3.7 of Chapter 4 of Part 1 of Division 2 of
Title 5 of the Government Code (Sections 53720 through 53730, as applicable)
regarding special taxes, and (iv) any other provisions of the Constitution of the United
States and the State of California, and any other laws or governing legal authorities,
whether in law or equity without completion of, or compliance with, any such notices,
minimum noticing periods, time limits, procedures or substantive requirements. Without
limiting the generality of any of the foregoing, Subdivider specifically waives (i) any and
all time limits and substantive requirements in connection with the conduct of the
election of the special tax levy referred to in Government Code Section 53326(a), (ii) the
impartial analysis, arguments and rebuttals, if any, in connection with the election by the
qualified landowner voters for the vote of the special tax levy referred to Government
Code Section 53327, (iii) any and all objections for other procedures and requirements
in connection with the regularity and sufficiency of an election and time limits for the
calling for an election of the special tax levy in the CFD, and for performance by any
City election official for the vote of such special tax levy, (iv) any and all rights under
Article XIIIC of the California Constitution regarding special taxes and the right to the
initiative power to reduce or repeal local taxes, and (v) any and all rights under Article 3
(commencing with Section 53330) of the Act to reduce or repeal the special tax, to
terminate the special tax levy, and to eliminate or reduce the Services.
7. On request by the City, the Final Map Applicants promptly shall execute
and deliver to City any other agreements, instruments, documents, and information that
are reasonably necessary to accomplish annexation of the Property into the CFD, the
imposition of the special tax lien, and the recordation of the notice of the special tax lien,
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and to evidence Final Map Applicant's petition, request, consent and waivers in this
Agreement, including by way of example and without limitation, petition, waiver and
consent forms, ballots regarding the special tax levy, and receipts for notices.
8. The City does not warrant that the annexation of the Property into the CFD
will be completed and the City assumes no responsibility for maintaining Services for
the Property if for any reason annexation into the CFD is not completed.
9. Final Map Applicants agree to pay any additional costs incurred by the
City to process the annexation into the CFD caused by the actions of Final Map
Applicants, or either of them, on a time and material basis.
10. This Agreement is for the benefit of the Property, the City, the public and
public property, is a covenant running with the land, and shall bind the Final Map
Applicants, and each of them, and their respective partners, heirs, executors,
administrators, successors in interest, transferees and assigns, and all subsequent
owners, transferees or lessees of any lot or other right or interest in the Property.
Wherever the terms "Subdivider," "Land Owner" or "Final Map Applicants" are used in
this Agreement, it shall mean the party specifically named herein and all such partners,
heirs, executors, administrators, successors, transferees, assigns and subsequent
owners, transferees and lessees.
11. Final Map Applicants will be responsible for, and shall indemnify, defend,
and hold the City harmless from, additional costs and/or claims resulting from
annexation of the Property into the CFD, this Agreement, and the approval of Final Map
5205 prior to annexation of the Property to the CFD, provided that Final Map Applicants
are not responsible for such matters if they are attributable to the gross negligence or
willful misconduct of the City.
12. If the annexation of the Property into the CFD is not approved, the Final
Map Applicants assume responsibility for/bears costs of the Services required in the
Conditions of Approval for the 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.
13. This Agreement shall be terminated and released from the public record
upon completion of annexation of the Property to the CFD (but after the date upon
which notice of special tax lien is recorded against all of the Property.) Upon
termination, the City shall cause this Agreement to be promptly released from the public
record by recordation of a written termination and release.
14. 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
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singular includes the plural, and the plural includes the singular.
15. Except as expressly provided herein, this Agreement shall not be
construed to limit the parties' rights and obligations at law and in equity.
16. In the event the annexation of the Property into the CFD is not approved
and the Final Map Applicants fail otherwise to provide for the Services as required
hereunder, then the Final Map Applicants and each of them agree to grant a lien for the
benefit of the City on any interest in or portion of the Property owned or retained at the
time, in an amount that the Public Works Director reasonably determines is adequate to
secure City's ongoing maintenance costs for the Property. Final Map Applicants, and
each of them, agree that in such event, the City may record a lien on real property in the
City of Fresno owned respectively thereby in an amount that the Public Works Director
determines is adequate to secure City's ongoing maintenance costs for the Property
upon sixty (60) days written notice to the Final Map Applicants of such failure to perform
and opportunity to correct and upon Final Map Applicant's failure to correct. In addition
to such lien rights, Final Map Applicants and each of them, hereby guarantee the
performance of all of the terms and conditions of this Agreement.
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WITNESS the due execution hereof the date aforesaid.'
CITY OF FRE NOb COPPER RIVER DEVELOPMENT
a municipal�G�b oration COMPANY, INC.
a Califor ' corpora
By: C By :
vid NQ0.1 Darius Assemi, President
Director
Public Works Department COPPER RIVER RANCH, LLC, a
California limited liabil' ompany
Michael T. Kirn By:
Assistant Director Darius Assemi, Third Vice-Pres.
Public Works Department
By:
APPROVED AS TO FORM: orth Vice-Pres.
James C. Sanchez
Interim City Attorney
By: �
Dep"y
ATTEST
REBECCA E. KLISCH
City Clerk
By:
Deputy
Attachment: Exhibit A— Property Description
a Parties signatories must be acknowledged.
b Subject to City Council approval/ratification.
7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of EreL—>Y)n
On hurch 31. ZIXY,� , before me, CrIS 1UL'IJA ,u�bl
Date Name and Title of Officer(e.g., Jane Doe,N tary Public")
personally appeared 1)0-0 uS Ate?Cml
Name(s)of Signer(s)
personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
j LOPEZ to the within instrument and acknowledged to me that
CRISTINA G.
1 '
Commission#LOPEZ 5 he/she/they executed the same in his/her/their
notary Pubk-COMM40 authorized capacity(ies), and that by his/her/their
Fresno county signature(s) on the instrument the person(s), or the
My Comm.ExplreaFeb t2,2009 entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above . a _
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:
C Individual El Individual
12 Corporate Officer—Title(s): ❑ Corporate Officer—Title(s):
Partner—L Limited `i General L Partner— Limited 1- i General
LJ Attorneyin Fact r •
Top of thumb here Attorney In Fact
Trustee Trustee Top tn�mb Here
of
Guardian or Conservator Guardian or Conservator
u Other: Other:
Signer Is Representing: Signer Is Representing:
C 2004 National Notary Association•9350 De Soto Ave..P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fie-sno Fie-s
ss.
On hurch 31, j." before me, Cr I S Y 1 t�b 11
Date Name and Title of officer(e.g., Jane Doe,N tary Public")
�1
personally appeared Darius, A�f
Name(s)of Signer(s)
,/Personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
CRISIINA G.LOPEZ to the within instrument and acknowledged to me that
CornmWilon#1552075 he/she/they executed the same in his/her/their
•'� Mary Public-CoUtornia authorized capacity(ies), and that by his/her/their
Fresm county - signature(s) on the instrument the person(s), or the
Nb comm.EOM FOb12.2009 entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
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:
L' Individual ❑ Individual
L Corporate Officer—Title(s): LI Corporate Officer—Title(s):
L' Partner—�__ Limited --i GeneralL Partner—I Limited Ci General
LLi Attorney in Fact r._1 Attorney in Fact
Top of thumb here Top of thumb here
Trustee Trustee
Guardian or Conservator Guardian or Conservator
Other: _ Other:
Signer Is Representing: Signer Is Representing:
C 2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth.CA 91313-2402 Item No 5907 Reorder.Call Toll-Free 1-800-876-6827
■
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of r re-�n n _ n ,) ��
On
ri 1 3. z(Y�(n before me, C('Ic5-hnA lT• It`���./ a /' M&,- e-
ate Name and Title 6f Officer(e.g.,"Jane d6e,Notary Public")
personally appeared l-, feria QcL U
Name(s)of Signer(s)
el personally known to me
_ _ _
El proved to me on the basis of satisfactory evidence
CWTINAG.LOPEZ�L to be the person(s) whose name(s) is/are subscribed
commluton#_1 552075 I to the within instrument and acknowledged to me that
-� Notary PubNc-Callfornla he/she/they executed the same in his/her/their
Fresno county - authorized capacity(ies), and that by his/her/their
yCOMM.ExpkesFab12.2004 signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above �� 6 _ka _l
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(les) 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
❑ Attorneyin Fact
� ❑ Attorney in Fact '
Top of thumb here y Top of thumb here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800.876-6827
Agreement to Advance Consideration
T-5205
Page 7a
COPPER RIVER RANCH, LLC.,
a California Limited Liability Company
By: Granville Homes, Inc., A California Corporation
It's Manager
Ch ' e 'ngenfelt r, ist t Secretary
10,
oberts, ' e Pr fanning and Development
7a
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of wk D ss.
On q.24D_1)L;,, before me, M'�_a �gAZ, �� �444;i,c-
Date Name and Title of Officer(�"Jan Doe,Notary Public-/
t
personally appeared ('1 5 -,�/P.;
T r� , Name((;)of Signer(s)
Gl �Tt f'�yl (• AAe-,4,
personally known to me
El proved to me on the basis of satisfactory evidence
CINWM 0. OPEZ to be the person(s) whose name(s) is/are subscribed
ca n Nuion i 15=75
Nolan P A)w_cdwnwo to the within instrument and acknowledged to me that
FrowwCotnW he/she/they executed the same in his/her/their
1MVComm.[4jF*wF012,24 authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above 'l.o&%
Signature of Notary Pulflic 1
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 ❑ Generalageal it" 11Partner—L1Limited ElGeneral
.119 M11IN10
❑ Attorneyin Fact
Top of thumb here ❑ Attorney in Fact Top of thumb here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On April 7. 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
David Healey, Public Works Director and Michael T. (M.T.) Kirn, Assistant Public Works
Director, 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 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), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
REBECCA E. KLISCH
CITY CLERK, CMC
o
By`\ ,� 2�
Deputy
EXHIBIT A
DESCRIPTION OF PROPERTY IN VESTING TENTATIVE TRACT MAP NO. 5205
Real property located in the City of Fresno, California, described as follows:
Lots 1 through 134, inclusive, Outlots A through Z, inclusive, and Outlot AA of Tract No.
5205 according to the map thereof recorded on Amici / a5 , 20L)L, in Volume '75
of Plats at Page(s),fFresno County Records, , containing
acres, more or less.
-f 31 thrU 55
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