HomeMy WebLinkAboutT-6110 - Agreement/Covenant - Fowler Interim Fee Surety - 10/4/2017 RECORDING REQUESTED BY IIII III I IIII II II II IIII IIII III IIII IIII IIII II II
AND WHEN RECORDED MAIL TO: FRESNO County Recorder
Paul Dictos, C,P,A,
City Clerk DDC— 2017-0127909
City of Fresno Acct 8002-Old Republic Title CONCORD
2600 Fresno Street Wednesday, OCT 04, 2017 08:00:00
Fresno, CA 93721-3603 Tt 1 Pd $96.00 Rcpt # 0004$59057
RGRIR5I3-14
CITY of FRESNO
Public Utilities Department
P.W. File No. 12130
STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
PROVIDING FOR SANITARY SEWER CAPACITY IN THE FOWLER
AVENUE TRUNK SEWER AND DEFERRING PAYMENT OF INTERIM
FEE SURETY TO THE TIME OF ISSUANCE OF CERTIFICATE OF
OCCUPANCY AND CREATION OF LIEN FOR THE FINAL MAP OF
TRACT NO. 6110
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 2
RECITALS
WHEREAS, FOWLER DEVELOPMENT COMPANY, INC., a California Corporation,
hereinafter referred to as the "Covenantor," is the owner of that certain real property in the City
of Fresno, County of Fresno, State of California, hereafter referred to as the "Subject Property"
and more particularly described as follows and by this reference made part of this Statement of
Covenants:
Lots 1 through 136, inclusive, of the Final Map of Tract No. 6110
according to the map thereof recorded on 4 . 0001
in Volume of Plats at Page(s) 30 t �3�, Fresno County Records;
and
WHEREAS, Covenantor 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 a part of this
instrument; and
WHEREAS, the conditions of approval of Vesting Tentative Map No. 6110 (hereinafter,
"Project'), require the payment of applicable sewer connection charges, water connection
charges, Urban Growth Management fees and/or the Millbrook Overlay Sewer fee (hereafter,
"Fees") in accordance with the provisions of Chapters 9, 11, 12 and 14 of the Fresno Municipal
Code, : Resolution No. 95-117 and Resolution No. 95-118 (hereafter, "Ordinances and
Resolutions"); and
WHEREAS, in addition to such Fees, the City has negotiated a temporary exchange and
interim use of sanitary sewer capacity owned by the City of Clovis in the Fowler Avenue Trunk
Sewer as an alternative to the Covenantor's responsibility to construct separate sanitary sewer
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 3
facilities to provide sanitary sewer services to the Project; and
WHEREAS, the exchange of such capacity owned by the City of Clovis is conditioned upon
the City of Fresno replacing the City of Clovis' capacity with capacity in future facilities
agreeable to the City of Clovis at a cost yet to be determined; and
WHEREAS, the Covenantor agrees to pay an "Interim Fee Surety" in the amount
estimated by the Public Utilities Director until actual costs are determined and the City Council
establishes and adopts necessary and appropriate fees for future replacement of the City of
Clovis' Fowler Avenue Trunk Sewer capacity; and
WHEREAS, the Covenantor, as a condition of issuance of building permit(s) for the
Subject Property pursuant to the provisions of the latest edition of the Uniform Building Code as
adopted by. the State of California and as amended by the City of Fresno, including any
subsequent extension and expiration of such permit and the re-issuance of a new building
permit for any expired permit on any lot or parcel of the Subject Property, desires to defer the
payment of such Interim Fee Surety until such time that the Covenantor or successors and
assigns requests the issuance of a Certificate of Occupancy.
COVENANTS, CONDITIONS, AND RESTRICTIONS
NOW, THEREFORE, the Covenantor hereby covenants as follows:
1. The Interim Fee Surety for the Fowler Avenue Trunk Sewer is estimated by the Public
Utilities Director to be $574 per living unit or living unit equivalent (as such units are defined in
Chapter 6, Article 3 of the Fresno Municipal Code) and such amount shall be payable to the
City of Fresno prior to the issuance of a Certificate of Occupancy for each lot, parcel, unit or
building on the Subject Property in the manner established by the Development and Resource
3
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 4
Management Department Director. The intent of this provision is to administer the payment of
the Interim Fee Surety in the same manner as other Fees which have been duly deferred to the
time of issuance of Certificates of Occupancy until such time as the City Council establishes a
fee for the replacement of the City of Clovis' capacity in the Fowler Avenue Trunk Sewer and
adopts provisions providing for the administration of such fee.
2. The Interim Fee Surety amount stated herein shall be maintained by the Public Utilities
Director and may be adjusted at the sole discretion of the Public Utilities Director to reflect the
most current Interim Fee Surety amount.
3. The actual Interim Fee Surety obligation shall be recalculated by the City at the time of
payment at the amount established by the Public Utilities Director in effect at the time of such
payment.
4. Upon the establishment and adoption of a fee by the City Council for the replacement of
the City of Clovis' capacity in the Fowler Avenue Trunk Sewer, such adopted fee will be applied
to the Subject Property, in lieu of the Interim Fee Surety amount, at the adopted fee rate in
effect at the time the fee is payable pursuant to the provisions of this Covenant.
5. Covenantor hereby waives any claim that the provisions of this Covenant violate
Government Code §66498.1 and rights to develop under said Tentative Map.
6. At the sole discretion of the Development and Resource Management Department
Director, a request for "temporary utility connection" or a "temporary or safe to occupy" may be
made subject to the provision of an additional cash security deposit representing a portion or all
of the deferred Interim Fee Surety amount.
7. The maximum period for deferment of the Interim Fee Surety for a lot, parcel, unit or
�I
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 5
building shall be limited to a period of one (1) year after final inspection of a building. This time
period approximates with the Uniform Building Code and Fresno Municipal Code period which
provides for an active permit life of 180 days, after last inspection, with provisions for one (1)
extension of said permit, not to exceed a period of 180 days.
8. Covenantor hereby waives any claim that the provisions of this covenant violate
Government Code Section 65961.
9. Each of the covenants, conditions, and restrictions contained in this Statement shall run
with the Subject Property and shall be binding upon each successive owner of the Subject
Property, heirs, representatives, successors and assignees. The Covenantor hereby creates a
lien upon the Subject Property to guarantee the performance of the obligations of the
Covenantor contained in this Statement which shall be recorded in the office of the Fresno
County Recorder. The lien shall be enforceable by the City in any manner available at law or
in equity.
10. The conditions of this Statement are intended to benefit the public and public
properties. Accordingly, the City of Fresno shall have the right to enforce this Statement by
any legal or equitable means. All obligations of the Covenantor in this Statement shall inure
solely to the benefit of the City of Fresno. There are no third party beneficiaries of said
obligations nor shall the right of the City of Fresno be transferable in any manner to any person
other than to a successor municipal corporation whose geographic boundaries include the
Subject Property.
11. If either party is required to commence any proceeding or legal action to enforce or
interpret any term or condition of this Statement of Covenant, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable attorney's
S
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 6
fees and legal expenses. For the purposes of this Statement of Covenant, "attorneys' fees"
and "legal .expenses" include, without limitation, paralegals' fees and expenses, attorneys,
consultants fees and expenses, expert witness fees and expenses, and all other expenses
incurred by the prevailing party's attorneys in the course of the representation of the prevailing
party in anticipation of and/or during the course of litigation, whether or not otherwise
recoverable as "attorneys' fees" or as "costs" under California law, and the same may be sought
and awarded in accordance with California procedure as pertaining to an award of contractual
attorneys' fees.
12. The waiver by either party of a breach by the other of any provision of this
Statement of Covenant shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Statement of Covenant. No
provisions of this Statement of Covenant may be waived unless in writing and signed by all
parties to this Covenant. Waiver of any one provision herein shall not be deemed to be a
waiver of any other provision herein.
13. The conditions and obligations of this Statement, for each lot or parcel of the Subject
Property, shall be of no further force and effect upon satisfaction of the Interim Fee Surety
obligation or obligation for the fee adopted by the City Council for the replacement of the City of
Clovis' capacity in the Fowler Avenue Trunk Sewer.
14. The conditions and obligations of this Statement shall remain in full force and effect
until such time as the fee obligations for all lots, parcels, units or buildings of the Project on the
Subject Property are fully satisfied.
15. The provisions of this Statement shall be deemed independent and severable and
the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 7
not affect the validity or enforceability of any one provisions hereof. Whenever the context of
the Statement so requires, in interpreting this Statement, any gender includes the other
genders, the singular includes.the plural, and the plural includes the singular.
7
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6110
Page 8
DATED: 5CPTC--A18C2 (l, ZOr
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
FOWLER DEVELOPMENT COMPANY, INC.
Public Utilities Department A California Corporation
Thomas,Esqueda, Director
C.
awf#ag-j—
By:
Thomasda,da, D re for Danus s President
e
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By: zzxz';A
Vary Raman-Doidge
Depu ity Attorney
Date: ( v ( I
(Attach Notary Acknowledgment)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Fresno )
On August 11, 2017 before me, Madelyn Cuellar, Notary Public
(insert name and title of the officer)
personally appeared Darius.Assemi
who proved to me on the basis of satisfactory evidence to be the person(&)whose name(&) is/aye
subscribed to the within instrument and acknowledged to me that he/94eR-hey executed the same in
his/hadt#eir authorized capacity(+e9), and that by his/heir signature(}on the instrument the
person(.&), or the entity upon behalf of which the person(e) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
MADEM CUELLAR
WITNESS my hand and official seal. ComNsalon ►2103017 =
Notary Public-California D
Fresno County —
Comm.Mims Mar 13,2019
Signature (Seal)
' �1
A notary public or other officer completing this
certificate verifies only the identity - of the
individual who signed the document,to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On September 11, 2017 before me, Cherisea Barnes, Deputy City Clerk, personally appeared,
Thomas C. Esqueda, Director, Department of Public Utilities of the City of Fresno, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
YVONNE SPENCE, CMC
City Clerk, City of Fresno c�t� °F
# _ o
s
o �°
TFe OCT.�1
By
Deputy •Lt-
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on May 13
-' 20 14 , in the office of the Fresno County Recorder,
as Document No. 2014-0053361-00 of which the Deed of Trust in, by and
between Fowler Development Company, Inc. as Trustor
Old Republic Title Company as Trustee
and Locans Investments, LLC , Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Statement of Covenants Affecting Land Development Providing for Sanitary Sewer
Capacity in the Fowler Avenue Trunk Sewer and Deferring Payment of Interim Fee Surety to the.
Time of Issuance of Certificate of Occupancy and Creation of Lien for the Final Map of Tract
No. 6110.
DATED: 2-0 t —4—
G pGq Alf IN l/CSTM Civ7SS L c.G
EFICI
Y:
Name: Farid Assemi
Title: President
By:
Name:
Title:
(Beneficiary to print/type Name and Title;
and attach Notary Acknowledgment)
I�
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Fresno )
On August 11, 2017 before me, Madelyn Cuellar, Notary Public
(insert name and title of the officer)
personally appeared Farid Assemi
who proved to me on the basis of satisfactory evidence to be the personH whose name(e) is/ate.
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/I efAheir authorized capacity(ie9), and that by his/herAheir signature(.$)on the instrument the
person(&), or the entity upon behalf of which the person(. acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
MADELYN CUELLAR
WITNESS my hand and official seal. Cummhslon#2103017 =
Notary Public•California
Fresno County
.Comm.Expires Mar 13,2019+
Signature T\"' (Seal)
�I
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on September 14 20 15 in the office of the Fresno County Recorder,
as Document No. 2015-0118377-00 of which the Deed of Trust in, by and
between Fowler Development Company, Inc. , as Trustor
Old Republic Title Company , as Trustee
and Locans Investments, LLC Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Statement of Covenants Affecting Land Development Providing for Sanitary Sewer
Capacity in the Fowler Avenue Trunk Sewer and Deferring Payment of Interim Fee Surety to the
Time of Issuance of Certificate of Occupancy and Creation of Lien for the Final Map of Tract
No. 6110.
DATED: �-
BENEFICIARY &elf41 -T /1VVCS7-11?6A17:T SLC
By:
Name: Darius Assemi
Title: Member
By:
Name:
Title:
(Beneficiary to print/type Name and Title;
and attach Notary Acknowledgment)
California All-Purpose Certificate of Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy,or validity of that document
State of California
County of Fresno r S.S.
OnAuqusl 19, 1017 before me, c, akp400eZ- NO�orq f'b1-1'-
Nance of P lolal V Public.Title
personally appeared n-r I us A----sse-tm-1
Name of Signer(1)
who proved to me on the basis of satisfactory evidence to be the personx whose name($1
is/.am subscribed to the within instrument and acknowledged to me that he/sible/they executed
the same in his/Der/fir authorized capacity(ies7, and that by his/�r/lherir signature(, on the
instrument the personX or the entity upon behalf of which the personal acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph isERIKA PELATO-LOP0- 11
true and correct. COMM. #2177552 z
Notary Public-Califomis
Fresno County
WITNESS my hand and official seal. @my Comm.Expires Dec.30,2=f
f(A (Z-A Seal
SignatUre OfUOIanv Publil ki
OPTIONAL INFORMATION
Although the information in this section is not required by law. it could prevent fraudulent removal and reattanent of
this ackno!,VI�rfoment to an unauthorized document and may prove useful to persons re/ying on the d document.
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a Method of Signer entification
document titled/for the purpose of Proved to on the basis of satisfactory evidence:
orm(s)of identification [I credible witness(es)
containing ot.".1 t is,
pages, and dated Notarial event is detailed in notary journal on:
The signer(s)capacity or authority is/are as: Page#_ Entry#_
El Individual(s) Notary contact:
El Attorney-in-fact
D Corporate Officer(s) "'Zz Other
T' tsi
El Additional Signer E] Signer(s)Thumbprints(s)
El Guardian/Conservator
0 Partner-Limited/General
El Trustee(s)
El Other:
represerit.�g:
Name(4i of PErsoll(s)Ent,[y.1-les)Sign6ris Pepr-zmntmg
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