HomeMy WebLinkAboutT-5270 - Agreement/Covenant - 8/7/2006 +' Recording Requested By:
Recording Requested by IIII III III III II II IIII III I II IIII III IIII IIII II II
City Clerk, Fresno, California
No Fee-Govt. Code 6103 FRESNO County Recorder
Return to City Clerk, Fresno Robert C, Werner
When Recorded, Return To: DOC— 2066-0140610
City Clerk Acct 1-Financial Title Company (C)
City of Fresno Thursday, JUL 06, 2006 08:00:00
2600 Fresno Street Ttl Pd X0,00 0
RGR//R4/211841Z
Fresno, CA. 93721-3623
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT TO ADVANCE CONSIDERATION
OF FINAL TRACT MAP NO. 5270
Date: June 13, 2006
Parties:
(1) COPPER RIVER RANCH VILLAGES, LLC, a California limited liability
company ("Land Owner" or"Final Map Applicant").
(2) CITY OF FRESNO, a municipal corporation ("City").
RECITALS
A. The Final Map Applicant is the owner of the real property in the City
described in Exhibit A to this Agreement ("Property") which is incorporated herein by
reference;
B. Final Map Applicant represents and warrants 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 Land Owner proposes to subdivide and thereafter develop the
Property 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 5270 ("Final Map 5270") pursuant to VTTM
No. 5205 Final Map 5270 must substantially comply with the standards and ordinances
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of the City in effect at the time VTTM No. 5205 was approved and with the general
conditions of approval for V-I-TM No. 5205;
D. Final Map Applicant, as a condition of approval of Final Map 5270, is
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 Applicant has elected to petition the City to annex the Property
to the CFD, and acknowledges and agrees 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 Applicant
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 5270 to go to Council for approval on
June 13, 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 5270 before the CFD annexation
process for the Property has occurred, the City is requiring that Final Map Applicant
enter into an agreement to ensure that Final Map Applicant will not sell or otherwise
convey title to any portion of the Property prior to the completion of the annexation of
the Property into the CFD;
J. The parties understand that should the Final Map Applicant 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 5270; and
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K. This Agreement binds Final Map Applicant for itself 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 Applicant 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 5270 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 Applicant represents and warrants that it has 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 5270 prior to the completion of the annexation of the
Property into the CFD in accordance with applicable law. Final Map Applicant 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 Applicant covenants and agrees 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 Applicant acknowledges its 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 Applicant 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 Applicant and City in the "Special Tax Rate and
Method of Apportionment" required in connection with annexation into the CFD. Final
Map Applicant 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 25, 2006. Final Map Applicant
acknowledges and agrees 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.
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6. Final Map Applicant agrees that the City may file its petition and request
with the City Council and that the City C ouncil 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 extant allowed by law, Final Map Applicant waives
any and all notices, minimum noticing p riods, procedures and substantive
requirements which may otherwise be r quired under: (i) City of Fresno Special Tax
Financing Law (Chapter 22 of the Fresr o 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 G vernment Code) (collectively the "Law"),
including, by way of example and witho t limitation, Article 2 (commencing with Section
53318) regarding the proceedings to es ablish a CFD, Sections 54950 through 54962 of
the Government Code regarding notice of and holding of public meetings, and Section
53739 of the Government Code, regard ng 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 (Sectioi is 53720 through 53730, as applicable)
regarding special taxes, and (iv) any oft er provisions of the Constitution of the United
States and the State of California, and E ny other laws or governing legal authorities,
whether in law or equity without comple ion of, or compliance with, any such notices,
minimum noticing periods, time limits, p ocedures or substantive requirements. Without
limiting the generality of any of the foreC ioing, Land Owner specifically waives (i) any
and all time limits and substantive requi ements 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 rebu Is, if any, in connection with the election by the
qualified landowner voters for the vote f the special tax levy referred to Government
Code Section 53327, (iii) any and all ob ections 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 evy 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 Constitutic n regarding special taxes and the right to the
initiative power to reduce or repeal loca 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 eli inate or reduce the Services.
7. On request by the City, the Final Map Applicant promptly shall execute
and deliver to City any other agreement , instruments, documents, and information that
are reasonably necessary to accomplisl annexation of the Property into the CFD, the
imposition of the special tax lien, and th recordation of the notice of the special tax lien,
and to evidence Final Map Applicant's etition, request, consent and waivers in this
Agreement, including by way of example and without limitation, petition, waiver and
consent forms, ballots regarding the sp cial 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
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the Property if for any reason annexation into the CFD is not completed.
9. Final Map Applicant agrees to pay any additional costs incurred by the
City to process the annexation into the CFD caused by the actions of Final Map
Applicant 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
Applicant and its 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"Land Owner" or
"Final Map Applicant" 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 Applicant 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
5270 prior to annexation of the Property to the CFD, provided that Final Map Applicant
is 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 Applicant assumes 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
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 Applicant fails otherwise to provide for the Services as required
hereunder, then the Final Map Applicant agrees to grant a lien for the benefit of the City
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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 Applicant agrees 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 Applicant 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 Applicant hereby guarantees the performance of all of the terms and
conditions of this Agreement.
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WITNESS the due execution hereof the date aforesaid.a
CITY OF FRESNOb COPPER RIVER RANCH VILLAGES,
a municipal corporation LLC, a California limited liability company
LYLES DIVERSIFIED, INC.
By: V)PFkQ a Califor corporation, as ember
By: " ,
David Healey Gerald. V. Lyles, Vice resident
Director Date: �;�� , 2066
Public Works Department
By: GLENEACL'ES HOMES
a CafiforpM corporation
Michael T. Kim dba Ga cDonaId o es, as ber
Assistant Director
Public Works Department By:
G ryc o ald, C an
APPROVED AS TO FORM: Datez 72006
James C. Sanchez
4rderk;LCity Attorney
By: In
Deputyf
ATTEST
REBECCA E. KLISCH
Ci Clerk
By: .-�vut� ���t.t1Z �
Deputy
Attachment: Exhibit A— Property Description
a Parties'signatories must be acknowledged.
b Subject to City Council approval/ratification.
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STATE OF CALIFORNIA
COUNTY OF FRESNO
On June 8, 2006 before me, Rhonda E. Wessels, Notary Public, personally appeared
Gerald V. Lyles, Vice President
2?ersonally 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 acknowledge
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.
RHONDA,E.WESSELS
COMM. # 1639639 -i
J(/1yD roc Y �✓�.[Jpi((��� U NOTARY PUBLIC•CALIFORNIA0
Rhonda E. Wessels U FRESNO COUNTY Q
1" My Commission Expires -�
February 18,2010
Title or Type of Document:
Agreement to Advance Consideration of Final Tract Map No. 5270 — Copper River Ranch
Villages, LLC
Date of Document: June 13, 2006
Number of Pages: 9
STATE OF CALIFORNIA )
) SS.
COUNTY OF FRESNO )
On JLA n L 'I , 2006, before me, Jean Ishimoto, a Notary
Public, personally appeared LQ V / ty c-lav 1n[
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/ber�t#ei authorized capacity(ies), and that by
his/heF�t#ei signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
gep�oFry JEAN ISHIMOTO
v �' sf COMM.#1604033
(n " NOTARY PUBLIC-CALIFORNIAZZ
WITNESS my hand and official seal. FRESNO COUNTY a
`�OFowN`' My Comm Exp.Sept.3,2009
JeaW Ishimoto
� ,tie t�e.�� '�r� vb�
Title or Type of Document: G r ' i Aeva4i Gyi 6,� n Y)a-11(rcAL+ `" "
Date of Document:
ju n L l �ba(0 c
T-5270
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain
Deed of Trust recorded on [ TUN e a , 20_N, in the office of the Fresno
County Recorder, as Document No. Oo(v— o 4 of which the Deed of
Trust in, by and between [C o ey. Kojiv. 4&wc-L V i ll L� !._.[_c. 1, as Trustor,
j T kle a . , as Trustee and [ Cop,aer lQ v*- Zey�loy. C
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Beneficiary, hereby expressly s bordinates said Deed o rust and its beneficial interest
thereto to the foregoing Agreement to Advance Consideration for the Final Map of Tract
No. 5270.
DATED: , 2006]
BENEFICIARY
f C�,o-Q,�
r CornpaN tali r-.o}-Pca
12
Name:r s:`vc G. /?,4 4• 1
Title: `cnL-TrtK
By:
Name: M o N a.Q
Title: s f Vi s'•(:.�'-
(Beneficiary to print4ype document information, Name, Title and attach Notary Acknowledgment(s).)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of A-t
On 7, 2-C O(q before me, ✓�k .�.a��` 4lQ.ry�.�et�t�S.,.,� 1�
Date Name and Title f Officer e. '
,,{{ ( g.,"Jane Doe,Notary Public")
personally appeared AtE tLz r 84�
Name(s)of Signer(s)
Ypersonally 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
MMARAJ.CFOORNSENhe/she/they executed the same in his/her/their
Conw ibslon#1155MIa authorized capacity(ies), and that by his/her/their
• t�uMc-Ccokxria _ signature(s) on the instrument the person(s), or the
Fiwrw Courtly
�rCOMM.Exp MFab 26.2009entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above
'gignature 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—Tftle(s): ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑General uneek
Owl 1 ❑ Partner—El Limited El General
❑ Attorney in Fact Top of thumb here ❑ Attorney in Fact
❑ Trustee ❑ Trustee Top of thumb here
❑ 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
STATE OF CALIFORNIA )
) SS.
COUNTY OF FRESNO )
On June 7, 2006, before me, lean Ishimoto, a Notary Public,
personally appeared Gary McDonald, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. SEF1.0. �F JEAN ISHIMOTO
a COMM.#1604033 u)
m NOTARY PUBLIC-CALIFORNIA
�..�C� � ? + FRESNO COUNTY
cI�FOPN* My Comm Exp.Sept.3,2
]e Ishimoto
Title or Type of Document:
�SLL bi vA'l no:-k-ay)
Date of Document: 'Aun e- u
J
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On June 16, 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
Michael T. (M.T.)Kim,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
a
By
Deputy
EXHIBIT A
DESCRIPTION OF PROPERTY
Real property located in the City of Fresno, California, described as follows:
Lots 1 through 54 inclusive and Outlots a, b, and c of Tract 5270, in the City of Fresno,
County of Fresno, State of California, according to the map thereof recorded in Book
Pages . through 43 inclusive, of Plats, Fresno County Records.
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