HomeMy WebLinkAboutT-5316 - Agreement/Covenant - 4/2/2007 WHEN RECORDED MAIL TO:
iz City Clerk
O City of Fresno
z 2600 Fresno Street 03/06/2007,20070046212
O Fresno, CA 93721-3603
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NO FEE - Government Code 6103
City of Fresno
Public Works Department
AGREEMENT TO ADVANCE CONSIDERATION OF FINAL TRACT
MAP NO. 5316, PHASE 1 OF VESTING TENTATIVE MAP NO. 5316
Recording Requested By:
Recording Requested by
City Clerk, Fresno, California
No Fee-Govt. Code 6103
Return to City Clerk, Fresno
When Recorded, Return To:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA. 93721-3623
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT TO ADVANCE CONSIDERATION
OF FINAL TRACT MAP NO. 5316
Date: February 27, 2007
Parties:
(1) CENTEX HOMES, a Nevada general partnership ("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. 11 (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. 5316 ("VTTM No.
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• 5316"). The Final Tract Map 5316 (Final Map 5316) was previously recorded. However,
because it was recorded prior to the Property being annexed into the City of Fresno, the
City and Final Map Applicant have agreed to the re-recordation of Final Map 5316.
D. In order to re-record Final Tract Map 5316 ("Final Map 5316") pursuant to
VTTM No. 5316 Final Map 5316 must substantially comply with the standards and
ordinances of the City in effect at the time VTTM No. 5316 was approved and with the
general conditions of approval for VTTM No. 5316;
E. Final Map Applicant, as a condition of approval of Final Map 5316, is
required to variously petition the City to annex the Property to the CFD to maintain
variously the following (collectively "Services"):
1. Landscape Maintenance
2. Project Trail Maintenance
3. Public Right of Way/Street Right of Way Maintenance
4. Parkway Maintenance
5. Facilities within Public Right of Way 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;
F. 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 such
annexation under such landowner voter election procedures, based upon the
representations and warranties of the Final Map Applicant set forth herein;
G. The City is presently processing the annexation for the Property into the
CFD at this time with a contemplated annexation date of March 13, 2007;
H. The Subdivider wants Final Map 5316 to go to Council for approval and to
record prior to completion of the CFD annexation process;
I. 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;
J. As a condition to approving recordation of Final Map 5316 before the CFD
annexation process for the Property has been completed, 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 in a manner that precludes establishment and
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implementation of the CFD under such landowner voter election procedures above
referenced;
K. 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 5316; and
L. 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 ensure
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 approval to record Final Map
5316 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 and covenants 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 5316 prior to the completion of the
annexation of the Property into the CFD in accordance with applicable law, in a manner
that precludes establishment and implementation of the CFD under such landowner
voter election procedures ("Final Map Applicant Covenant"). 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 is subject to this Agreement and Final Map
Applicant's Covenant hereunder.
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, except to any extent
allowed by Final Map Applicant's Covenant.
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 and (to the maximum extent allowed by law) those taking title under
or through Final Map Applicant will not protest the amount of the Maximum Special Tax
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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) is scheduled to be completed on March 13, 2007. 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.
6. Final Map Applicant agrees 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 Applicant and (to
the maximum extent allowed by law) those taking under or through Final Map Applicant
waives and shall cause purchasers in escrow to 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, Land Owner 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
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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 Applicant promptly shall
execute/cause to be executed 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, 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 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 including any breach of the Final Map Applicant Covenant, 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
5316 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
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• • s
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
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.
1H
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WITNESS the due execution hereof the date aforesaid.'
CITY OF FRESNO' CENTEX HOMES,
a municipal corporation a Nevada general partnership
By: Centex Real Estate Corporation
By: a Nevada orporation
as Managir g eneral Partner
Jon R. Ruiz
Interim Director
Public Works Department By:
Name: ! ,cekf I vA1Is
By: Title: Cvy*1kY*
Michael T. Kirn Date: `2 2-Y , 2007
Assistant Director
Public Works Department
Date. , 2007
APPROVED AS TO FORM:
James C. Sanchez
City Attorney
By:
D�p t
ATTEST
REBECCA E. KLISCH
City Clerk
Deputy C3(r 107
Attachment: Exhibit A Property Description
a Parties' signatories must be acknowledged.
b Subject to City Council approvaVratification.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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County of
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Date Name and Title of Officer(e.g.,"Jan Doe,Notary Public")
personally appeared 57eO7.7 4904,
Name(s)of Signer(s)
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evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
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the same in his/her/their authorized
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V.C.PAITON signature(s) on the instrument the person(s), or
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WITNESS my hand and official seal.
` Place Notary Seal Above Signature of Notary Public
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OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
ti and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached D cument
Title or Type of Document: - �X-
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Document Date: -'�i Z7, ZVo7 Number of Pages:P
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CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO)
On March 1, 2007, before me, Elvia Sommerville, Deauty City Clerk. City of Fresno,
personally appeared, Jon R. Ruiz, Interim Public Works Director and Michael 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 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.
REBECCA E. KLISCH
CITY CLERK, CMC
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Deputy
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EXHIBIT A
DESCRIPTION OF PROPERTY
Parcel 1: APN 311-240-24S (portion)
The South half of the Northwest quarter of the Southwest quarter of Section 22, Township 13 South,
Range 19 East, Mount Diablo Base and Meridian, according to the Official Plat thereof.
Excepting therefrom Beginning at the Northeast corner of the South half of the Northeast quarter of the
Southwest quarter of said Section 22; thence South 00001'55"West, along the East line of the South half
of the Northeast quarter of the Southwest quarter of said Section 22, a distance of 659.59 feet to the
Southeast corner of the South half of the Northeast quarter of the Southwest quarter of said Section 22;
thence South 89056'05" West, along the South line of the North half of the Southwest quarter of said
Section 22, a distance of 1488.00 feet; thence North 00001'55" East, a distance of 759.99 feet; thence
North 8905543"East, a distance of 170.97 feet to a point on the East line of the Northwest quarter of the
Southwest quarter of said Section 22; thence South 00000'57"West, along the East line of the Northwest
quarter of the Southwest quarter of said Section 22, a distance of 99.48 feet to the Northwest corner of
the South half of the Northeast quarter of the Southwest quarter of said Section 22; thence North
89058'32" East, along the North line of the South half of the Northeast quarter of the Southwest quarter
of said Section 22, a distance of 1317.00 feet to the point of beginning.
Also excepting therefrom an undivided 25% of all oil, gas, minerals and other hydrocarbons substances in
and under said land.
Parcel 2: APN 311-240-01 (portion)
The North half of the Northwest quarter of the Southwest quarter of Section 22, Township 13 south,
Range 19 East, Mount Diablo Base and Meridian, according to the Official Plat thereof.
Excepting therefrom Beginning at the Northeast corner of the South half of the Northeast quarter of the
Southwest quarter of said Section 22; thence South 00001'55"West, along the East line of the South half
of the Northeast quarter of the Southwest quarter if said Section 22, a distance of 659.59 feet to the
Southeast corner of the South half of the Northeast quarter of the Southwest quarter of said Section 22;
thence South 89056'05" West, along the South line of the North half of the Southwest quarter of said
Section 22 a distance of 1488.00 feet; thence North 00001'55" East, a distance of 759.99 feet; thence
North 8905543"East, a distance of 170.97 feet to a point on the East line of the Northwest quarter of the
Southwest quarter of said Section 22; thence South 00000'57"West, along the East line of the Northwest
quarter of the Southwest quarter of said Section 22, a distance of 99.48 feet to the Northwest corner of
the South half of the Northeast quarter of the Southwest quarter of said Section 22; thence North
8905832" East, along the North line of the South half of the Northeast quarter of the Southwest quarter
of said Section 22, a distance of 1317.00 feet to the point of beginning.
Parcel 3: APNs 311-240-01, 04- 24S (portion)
Lots 1 through 98, inclusive, of Tract 5316, Phase I of Tentative Map No. 5316, according to the map
thereof recorded MrjrcJl (. ,�? /)-7 in Volume 28, Pages �, �_, and Q� of Plats,
Record
Fresno County Rerd