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HomeMy WebLinkAboutT-5374 - Agreement/Covenant - 4/10/2006 (2) WHEN RECORDED MAIL TO: UI IIII��I IIS IIS�I IIIA IIS IIS II�I�I�I IIIA III��ISI City Clerk FRESNO County Recorder City of Fresno Robert C. Werner 2600 Fresno Street DOC— 2006-0022855 Fresno, CA 93721-3603 Wednesday, FES 01, 2006 13:28:03 Tt 1 Pd $6.66 Nbr-0062686135 EMF/R5/1-9 NO FEE-Government Code 6103 CITY OF FRESNO Planning and Development Department P.W. File No. 10832 JAF: 5212, 5215, 5216, 5219, 5220, 5223, 5224, 5227, 5228, 5231 East Kaviland Avenue AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS TRACT NO. 5374 Agreement for Early Issuance of Model Home Building Permits Tract No. 5374/UGM Page 2 THIS AGREEMENT is made this _day of Am 20 09z, 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 southeast corner of South Peach and East Grove 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. 5374 on the Subject Property. Additionally, the Developer has filed a Final Map of Tract No. 5374 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. Agreement for Early Issuance of Model Home Building Permits Tract No. 5374/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 40, 5212 East Kaviland Avenue Lot 41, 5216 East Kaviland Avenue Lot 42, 5220 East Kaviland Avenue Lot 43, 5224 East Kaviland Avenue Lot 44, 5228 East Kaviland Avenue Lot 81, 5215 East Kaviland Avenue Lot 82, 5219 East Kaviland Avenue Lot 83, 5223 East Kaviland Avenue Lot 84, 5227 East Kaviland Avenue Lot 85, 5231 East Kaviland 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. 3 1 Agreement for Early Issuance of Model Home Building Permits Tract No. 5374/UGM Page 4 AGREEMENT In consideration of the foregoing,the early issuance of building permits forthe 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 ($1,000) per model home for a total amount of Ten Thousand Dollars ($ 10,000 ) 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. 5374/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 10 Lots @ $ 2,119 /Lot $ 21,190.00 Service Connection Charges -Water Meters per Lot Lots 40-44, 81-85 10 - 1" Meters @ $330/each $ 3.300.00 Total Fees and Charges Due $ 24,490.00 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. 5374/UGM Page 6 CITY OF FRESNO, DEVELOPER: a Municipal Corporation Beazer Homes Holdings Corporation, a Delaware Corporation. By IC . Yovino, Director By: Pla ng and Development Department Walter Diamond, Vice resident Land 7 Acquisition, Northern California Division APPROVED AS TO FORM: HILDA CANTO MONTOY (Attach Notary Acknowledgment) City Attorney By Deputy K:\CONSULTANT SERVICES - URS\URS T-5374\FORM Agreement Early Model Home FT5374 v07-02-04.wpd louisr jonb frankfs 7-3-03 STATE OF CALIFORNIA ) SS. COUNTY OF On — 1 r7 L_ �� beforeme, S. Anthony, notary public a Notary Public in and for said County and State, personally appeared ` Y l Cl ti'ti 1C lC;l t? Vc Y��2 i VV' �b 1— �ZSY �C3 V —1��>�l IDA,)(C, Cf- L20cD j 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 and and official seal. S.ANTIAONY COMM.#1444988 NOTARY PUBLIC-CAUFORMA� Signature of Notary -A FRESNO COUNTY st_^."• ..:"-Germ.Expire;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•-08J27J9ebk CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) On 1r. ,Lf etc �.,.� 1, ' r- �.. before me, L : �� , ,. J t �[t , 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 `Sl By C ell L DEPUTY CITY CLERK EXHIBIT A Agreement for Early Issuance of Model Home Building Permits for Tract No. 5374 THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF.