HomeMy WebLinkAboutT-5374 - Agreement/Covenant - 4/25/2006 Recording Requested By:
Recording Requested by
City Clerk, Fresno, California
No Fee-Govt. Code 6103
Return to City Clerk, Fresno 04/18/2006,20060081182
When Recorded, Return To:
City Clerk
City of Fresno
0 2600 Fresno Street
o Fresno, CA. 93721-3623
U SPACE ABOVE THIS LINE FOR RECORDER'S USE
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Q AGREEMENT TO ADVANCE CONSIDERATION
LU
—i OF FINAL MAP FOR TRACT 5374
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Date: March 29, 2006
Parties:
(1) - BEAZER HOMES HOLDINGS, CORP., a Delaware Corporation, owners
of Tentative Tract No. 5374 ("Subdivider")
(2) CITY OF FRESNO, a Municipal Corporation ("City")
RECITALS
Whereas, BEAZER HOMES HOLDINGS, CORP., a Delaware Corporation
designated and referred to as the "Subdivider," is the owner of the real property
designated as Final Tract Map No. 5374 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 96, inclusive, of Tract No. 5374 according to the map thereof
recorded on r1 l A? , 2066 in Volume -7, of Plats at
Page(s) I -r- 2-2, , Fresno County Records; and Subdivider is owner of Subject
Property as represented in Tentative Tract 5374; 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 any additional features requested by the Subdivider and approved by
the City Department of Public Works ("Features"); and,
Whereas, Subdivider elected to petition the City to annex the Subject Property to
CFD-2; and,
Whereas, the costs for the City to maintain the Features for the Subject Property
are subject to re-evaluation and the City is unable to process the annexation for the
Subject Property at this time; and,
Whereas, the Subdivider wants Final Map for the Subject Property to go to
Council for approval on April 4, 2006 and the annexation process will not be completed
by that date; and,
Whereas, selling any portion of the Subject Property prior to the completion of
the annexation process for the Subject Property could interfere with noticing and timing
with respect to the required CFD No. 2 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; and,
Whereas, as a condition to approving Final Map for Tract 5374 before the
Annexation Process 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 5374) prior to the completion of the annexation to 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 perpetual ongoing maintenance
of the Features required as a Condition of Approval to the Subject Property; and,
Whereas, this Agreement is intended to insure that the annexation process 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 Features for Tract 5374 is
offset by the Subdivider's personal assumption of responsibility for those improvements
and maintenance.
Agreements:
1. City agrees to proceed with the hearing on the Final Map for Tract 5374 on April
4, 2006, 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 5374 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, but not limited to,
any subsequent owner of any portion of the subject real property, covenants and agrees
c
that until the annexation to CFD No. 2 for the subject property has been completed in
the manner required by law, except as described in paragraph 2 above, 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 annexation to CFD No. 2 subject to approval of such
annexation 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.
5. The City does not warrant that the Annexation Process for the Subject Property
will be completed and the City assumes no responsibility for maintaining Features of the
Subject Property if for any reason annexation to 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 5374.
8. If the annexation to CFD No. 2 for the Subject Property is not approved, the
Subdivider assumes full responsibility for Feature 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
successful completion of the Annexation Process 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 annexation to CFD No. 2 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, BEAZER HOMES HOLDINGS, CORP., a Delaware Corporation, as Subdivider,
hereby guarantees the performance of all of the terms and conditions of this Agreement.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
BEAZER HOMES rHOLD ORP.
By: � a a Delaware Co
Michael T. Kim
Assistant Director
Public Works Department
Alan n
Vice President
Operations
By: Am
i P. Yovino
Dir for
PI P.
and Development
Department
APPROVED AS TO FORM:
James Sanchez
Interim City Attorney
By:
Deputy
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of P S,j'10 / J
On rG� a9�6 , before me, L41y, I(rte
Date Man
Name and Title of Officer(e,..Viand Doe,Notary P blic")
personally appeared J`'1'(an &
Name(s)of Signer(s)
p•R`15rsonally 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
iROs*E he/she/they executed the same in his/her/their
COQ"n*dO^#1631297 authorized capacity(ies), and that by his/her/their
NOOMY PJNC-C°Ntomo signature(s) on the instrument the person(s), or the
Fro Courdy entity upon behalf of which the person(s) acted,
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executed the instrument.
WITNESS my han,0 and official seal.
Place Notary Seal Above
Signature JWublic
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 DcApiument ,/ �
Title or Type of Document: �� 1 V•C�t,�s id(/
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Artin
med M
ner(s)
Signer's Name: �M(*�t-7 Signer's Name:
❑ Individual ❑ Individual
p�orporate Officer—Title(s): ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑General
❑ Attorneyin Fact ❑ Attorneyin Fact
Top of thumb here Top of thumb here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Cons ator
❑ Other: — ❑ Other:
Sipper Is Representing:-6,47pj_- !��
presenting:
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0 2004 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Tall-Free 1-800-876-6827
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On April 6. 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
Michael T. Kirn, Assistant Public Works Director and Nick P. Yovino. Planning and
Develol2ment 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
( _
By �
Deputy