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HomeMy WebLinkAboutT-5313 - Agreement/Covenant - 4/10/2006 (2) r WHEN RECORDED MAIL TO: IIIIIIIIII�IIIIIIIII�IIIIII�IIIIIIIIIIII�III��III City Clerk FRESNO County Recorder City of Fresno Robert C. Werner 2600 Fresno Street DOC— 2006-0022856 Fresno, CA 93721-3603 Wednesday, FEB 01, 2006 13:28:24 Tt 1 Pd $0.00 Nbr-0001086737 EMF/R5/1-9 NO FEE-Government Code 6103 CITY OF FRESNO Planning and Development Department P.W. File No. 10833 JAF: 2504, 2508, 2512, 2516 South Villa Avenue 5310, 5318, 5319, 5327 East Byrd Avenue AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS TRACT NO. 5313 t Agreement for Early Issuance of Model Home Building Permits Tract No. 5313/UGM Page 2 THIS AGREEMENT is made this day of 20 D6 , by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and Beazer Homes Holdings Corporation, a Delaware Corporation, hereinafter referred to as the "Developer," without regard for number or gender. RECITALS A. The Owner 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 on the north side of East Jensen Avenue between South Peach and South Minnewawa Avenues. B. The Owner and 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, a Vesting Tentative Map No. 5313 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5313 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. E. Such building permits will be issued and inspected in accordance with City of Fresno codes and regulations, including but not limited to,compliance with the provisions of Section 12-4.508.E.1 (UGM FIRE STATIONS, UGM DEVELOPMENT RESTRICTIONS) of the Fresno Municipal Code. t :1 Agreement for Early Issuance of Model Home Building Permits Tract No. 5313/UGM Page 3 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 36, 2516 South Villa Avenue Lot 37, 2512 South Villa Avenue Lot 38, 2508 South Villa Avenue Lot 39, 2504 South Villa Avenue Lot 47, 5327 East Byrd Avenue Lot 48, 5319 East Byrd Avenue Lot 49, 5310 East Byrd Avenue Lot 50, 5318 East Byrd 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 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. The Owner and 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 for Early Issuance of Model Home Building Permits Tract No. 5313/UGM Page 4 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 Owner and 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 Owner and 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 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 Dollars ($1,000) per model home for a total amount of Eight Thousand Dollars($8,000)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. Agreement for Early Issuance of Model Home Building Permits Tract No. 5313/UGM Page 5 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 8 Lots @ $ 2,119/Lot $ 16,952.00 Service Connection Charges - Water Meters per Lot Lots 36-39, 47-50 8 - 1" Meters @ $330/each $ 2,640.00 Total Fees and Charges Due $ 19,592.00 7. The obligations of the Owner and 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 Owner/Developer to trespass upon land rightfully in the possession of,or owned by, another, whether such land be privately or publicly owned. 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 Owner and 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 Owner and 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. 5313/UGM Page 6 CITY OF FRESNO, DEVELOPER: a Municipal Corporation Beazer Homes Holdings Corporation, a Delaware Corporation. rl By ovino, Director By: ��- PlannV` and Development Department Walter Diamond, Vice Pr,a6dent Land Acquisition, Northern California Division APPROVED AS TO FORM: (Attach Notary Acknowledgment) HILDA CANTU MONTOY City Attorney By _---. Dboty K:\CONSULTANT SERVICES - URS\URS T-5313\FORM Agreement Early Model Home FT5313 v07-02-04.wpd louisr jonb frankfs 7-3-03 STATE OF CALIFORNIA ) SS. COUNTY OF ,`'y VA(D ) On `— 1 7L`�! �% beforeme, S. Anthony, notary public a Notary Public in and for said County and State, personally appeared 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 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. S.ANTHONY COMM.#1444988 Signature of Nota NOTAR'f PMBLIC CPLIFORNW g Notary r FRESNO COUNTY MY Comm Expires Oct.12,2007 STATE OF CALIFORNIA ) SS. COUNTY OF ) On before me, a Notary Public in and for said County and State, personally appeared 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 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. Signature of Notary EXTNOT2--09/27/99bk CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) On 3i. �'_� c�: , before me, , Deputy City Clerk, personally appeared Nick P. Yovino, Director, Planning and Development Department personally known to me (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 `51 By C DEPUTY CITY CLERK i EXHIBIT A Agreement for Early Issuance of Model Home Building Permits for Tract No. 5313 THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLATS THEREOF, OF WIT: BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 17; THENCE NORTH ALONG THE WEST LINE OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER AND OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 17, A DISTANCE OF 1367.2 FEET; THENCE NORTH 89°17' EAST PARALLEL WITH THE NORTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION, 738.9 FEET, MORE OR LESS TO THE CENTER OF AN IRRIGATION CANAL; THENCE FOLLOWING THE CENTER LINE OF SAID CANAL THE FOLLOWING COURSES AND DISTANCES; SOUTH 31°23'WEST 49.7 FEET; THENCE SOUTH 10°02'WEST 412 FEET; THENCE SOUTH 00°05' EAST 922.4 FEET, MORE OR LESS, TO THE SOUTH LINE OF SAID SECTION 17; THENCE WEST ALONG THE SOUTH LINE OF SAID SECTION 17, A DISTANCE OF 618.5 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE WEST QUARTER CORNER OF SAID SECTION 17; THENCE SOUTH 89055'26" EAST, ALONG THE NORTH LINE OF SAID SOUTHWEST QUARTER, A DISTANCE OF 1350.46 FEET TO A POINT ON THE WESTERLY LINE OF THE LANDS OF ESHLEMAN AS AGREED UPON IN AN INSTRUMENT RECORDED DECEMBER 10, 1890 IN BOOK M OF COVENANTS, AT PAGE 318 ET SEQ. FRESNO COUNTY RECORDS;THENCE SOUTH 00°25'47" EAST, ALONG SAID WESTERLY LINE,A DISTANCE OF 1282.37 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 00°25'47" EAST, ALONG SAID WESTERLY LINE,A DISTANCE OF 18.72 FEET; THENCE SOUTH 89028'48" EAST, A DISTANCE OF 110.02 FEET; THENCE NORTH 00°25'47"WEST, PARALLEL WITH AND 110.00 FEET EASTERLY OF SAID WESTERLY LINE OF THE LANDS OF ESHELMAN, A DISTANCE OF 19.20 FEET TO A POINT ON THE NORTH LINE OF THE LAND GRANTED TO A.A. ANDERSON BY AN INSTRUMENT RECORDED AUGUST 7, 1919, IN BOOK 698 OF DEEDS, PAGE 178, FRESNO COUNTY RECORDS; THENCE NORTH 89043'46" WEST, ALONG SAID NORTH LINE, A DISTANCE OF 110.01 FEET TO THE TRUE POINT OF BEGINNING.