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HomeMy WebLinkAboutPM 2004-36 - Agreement/Covenant - 10/23/2008 (2) WHEN RECORDED MAIL TO: LL QCity Clerk (.) City of Fresno Lu 2600 Fresno Street 10/23/2008,20080150048 U) Fresno, CA 93721-3603 4 W CIL NO FEE -Government Code 6103 CITY of FRESNO Planning and Development Department P.W. File No. 5494-2004-36 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT DEFERRING CERTAIN SEWER CONNECTION CHARGES, WATER CONNECTION CHARGES, URBAN GROWTH MANAGEMENT FEES AND DEVELOPMENT FEES TO THE TIME OF ISSUANCE OF CERTIFICATE OF OCCUPANCY AND CREATION OF LIEN FOR PARCEL MAP NO. 2004-36 Statement of Covenants Fee Deferral PM 2004-36 Page 2 RECITALS WHEREAS, FANCHER CREEK PROPERTIES, LLC., a California Limited Liability Company, 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: Parcels A through AQ, inclusive, and Outlots 1 and 2 of Parcel Map No. 2004-36 according to the map thereof recorded in Book —Z,`� of Parcel Maps at Page(s)RS•,= �-:, 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 Tentative Parcel Map No. 2004-36 (hereafter, "Project"), require the payment of applicable sewer connection charges,water connection charges, Urban Growth Management fees, Traffic Signal Charge 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, said Ordinances and Resolutions provide the Covenantor the option to defer certain Fee obligations, more particularly identified in the attached Exhibit "A", to the time of issuance of a Certificate of Occupancy pursuant to the requirements of Section 12-4.604 of the Fresno Municipal Code; and Statement of Covenants Fee Deferral PM 2004-36 Page 3 WHEREAS, the Covenantor,as a condition of issuance of building permit(s)for the Project 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 the Fee obligations identified in Exhibit"A" pursuant to the requirements of said Section 12-4.604 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. For the express purpose of administering the fee deferral process, the Fee obligations for the Project may be prorated by the City to each lot, parcel, unit or building on the Subject Property in the manner established by the Planning and Development Director. The intent of this provision is to prorate the Fee obligations of common use areas, outlots, public street easements and similar miscellaneous areas of the Project in a reasonable manner to each lot, parcel, unit or building of the Project to facilitate reasonable administration of the fee deferral process. 2. At the sole discretion of the Planning and Development Director, when the proration of a Fee obligation is not feasible to be administered on a lot, parcel, unit or building basis, the Covenantor may be required to pay the total Fee obligation for such fee for the Project with the first request for issuance of a certificate of occupancy for the Project. 3. The Covenantor may elect to pay any of the deferred Fees prorated to each lot, parcel, unit or building as identified on the attached Exhibit "B", at any time after the recordation of this instrument. The Fee obligations stated in said Exhibit"B" shall be maintained by the Planning and Statement of Covenants Fee Deferral PM 2004-36 Page 4 Development Director and shall be adjusted to reflect the Fee rates in effect at the time payment is made,and may be adjusted to accountfor any subsequently approved reconfiguration to the size or number of lots, parcels, units or buildings. When Covenantor elects to pay one or more of the deferred Fees in advance of the request for issuance of a Certificate of Occupancy, the full amount of such Fee must be paid. The remaining unpaid deferred Fees for that lot, parcel, unit or building shall be paid in full at the time the Covenantor or successors and assigns requests the issuance of a Certificate of Occupancy. 4. The actual Fee obligations shall be recalculated by the City at the time of payment at the fee rates in effect at the time of such payment. For the purpose of fee recalculations, the fee credits applied in Exhibit"A" to establish Fee obligations shall not be adjusted during the effective term of this Statement. Any additional credits established after the recordation of this instrument shall be reimbursed in the manner established by the section of the Fresno Municipal Code relating to that specific Fee. 5. Additional new fee obligations not listed on Exhibit "A", but in effect at the time the Covenantor or successors and assigns requests the issuance of a Certificate of Occupancy, will be applicable to this Project if such new fee(s) is/are duly established by the City Council in accordance with Government Code Section 66498.1. 6. At the sole discretion of the Planning and Development 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 Fee amounts. 7. Notwithstanding any of the above payment times, the maximum period for deferment of Fees for a lot, parcel, unit or 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 Statement of Covenants Fee Deferral PM 2004-36 Page 5 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. 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. In the event that litigation is instituted to enforce the processing of this covenant,the parties agree that the prevailing party shall be paid reasonable attorney's fees. 12. 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 Fee obligations for such lot or parcel. 13. 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., Statement of Covenants Fee Deferral PM 2004-36 Page 6 14. 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 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. Statement of Covenants Fee Deferral PM 2004-36 Page 7 kt DATED: L L G i� L6 Ui, CITY OF FRESNO, COVENANTOR a Municipal Corporation FANCHER CREEK PROPERTIES, LLC., a California Limited Liability Company By: � _ By: Kashian Enterprises Keith Bergthold, Assistant Dire for a imited Partnership, Planning and Development Department as Member �aa"�7 APPROVED AS TO FORM: Edward M. Kashian, General Partner JAMES C. SANCHEZ City Attorney By: Africal Development, LLC., a California Limited Liability Company, By: as Member EJohn W. Fox eputy City Attorney Date: qL ((, Thomas G. Richards, Manager (Attach Notary Acknowledgments) STATE OF CALIFORNIA ) ) 5S. COUNTY OF �Ytsti•n ) On Oo.l,w►-A1 IL, icoj'' before me, personally appeared Edwgr--.1 /A• l S► �+ , 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. Notary Public in andsaid Sate yr �,,,�"..•�,, STEVrN M.YOUNG STATE OF CALIFORNIA ) COMM.#1466428 NTA"PURR-cauFORMA COUNTY OA"o ) ss. couwr�r On ""'I f ��, 7dV8Nhh befre me,�A• �GW (1-4- -�1ofa Y6, �- personally appeared �C�la A5 (�. , personafly known to me ( ", .. i amt n,. e ,.',l,",^o) to be the person(* whose name(s) Ware subscribed to the within instrument and acknowledged to me that he/&he executed the same in hisfiwrAheir authorized capacity(*, and that by hisAwr4kei-r signature($) 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. lw�v a., L-— Notary Public in and"d State LETA M.CIAVAGLIA s COMM.#1581774 M W ?per , Notary Public�alliornla � e FRESNO COUNTY My Comm.Exp,June 20,2009 2 1609949.1 CLERK'S CERTIFICATION State of California ) County of Fresno ) On October 10, 2008 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Keith Bergthold, Assistant Director of Planning and Development Department, 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 REBECCA E. KLISCH, CMC City Clerk, City of Fresno By _ /r3 Deputy EXHIBIT "A" DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR PARCEL MAP 2004-36 Project Zoning: M-1/BA-15/UGM I. WATER CONNECTION CHARGES A. Service Connections (flat rate cost basis only) -_ inch Services @ $_/Service = $ N/A B. Meters (flat rate cost basis only) - Meters to be collected at Building Permit = $ 0.00 C. UGM Transmission Grid Main (TGM) Charge UGM Reimbursement Area: E 95.3015 Gross Acres @ $643.00 /ac. _ $ 61,278.86 Less TGM Credit = $ 95,520.00 Estimated Net Deferred UGM TGM Charge = $Paid w/ Credits D. Transmission Grid Main Bond Debt Service Charge 95.3015 Gross Acres @ $243.00 /ac. _ $ 23,158.26 Estimated Net Deferred TGM Bond Debt Service Charge = $ 23,158.26 E. Frontage Fee 3,504 Lineal Feet @ $ 6.50 /LF = $ 22,776.00 Estimated Net Deferred Frontage Fee = $ 22,776.00 F. 1994 Bond Debt Service Fee 501 1994 Bond Debt Service Area. 267 Living Unit Equivalents @ $ 93.00/ Unit = $ 24,831.00 Estimated Deferred 1994 Bond Debt Service Fee = $ 24,831.00 G. The following water connection charges are not deferrable or prorated under the terms of this covenant: 1. Service Connections for common, landscape and other miscellaneous areas, and Time & Materials cost basis 2. Meters for common, landscape and other miscellaneous areas, and Time & Materials cost basis 3. UGM Water Supply Fee 4. Wellhead Treatment Fee 5. Recharge Fee II. SEWER CONNECTION CHARGES & SEWER RELATED CHARGES A. UGM Oversize Sewer Charge UGM Reimbursement Area: 37 613,800 Square Feet @ $0.05 / Sq. Ft. = $ 30,690.00 Less Oversize Credit = $ 7,900.00 Less Overdepth Credit = $ 0.00 Estimated Deferred UGM Oversize Sewer Charge = $ 22,790.00 B. Lateral Sewer Charge 50,000 Square Feet @ $0.10 / Sq. Ft. = $ 5,000.00 Estimated Deferred Lateral Sewer Charge = $ 5,000.00 C. Housebranch Sewer Charge = $ N/A D. Millbrook Sewer Overlay Net Adj Gross Ac @ $ /NAA = $ N/A Units @ $ /Unit = $ N/A E. The following sewer connection charges are not deferrable under the terms of this covenant: 1. Trunk Sewer Charge 2. Wastewater Facilities Sewer Charge III. URBAN GROWTH MANAGEMENT FEES A. UGM Fire Station Fee Service Area: 15 95.3015 Gross Acres @ $ 1,211.00 /GA = $115,410.12 Estimated Deferred UGM Fire Station Fee = $115,410.12 B. UGM Neighborhood Park Fee Service Area: 2 95.3015 Gross Acres @ $ 638.00 /GA = $ 60,802.36 Estimated Deferred UGM Neighborhood Park Fee = $ 60,802.36 C. UGM Trunk Sewer Fee (Res 83-40) Service Area: Fowler 95.3015 Gross Acres @ $ /GA = $ N/A D. UGM Major Street Charge Service Area: D-1/E-2 88.9275 Net Adj Acres @ $ 3,161.00 /NAA = $281,099.83 Less Estimated Major Street Credits = $223,568.00 Estimated Deferred UGM Major Street Charge = $ 57,531.83 E. UGM Major Street Bridge Charge Service Area: D-1/E-2 88.9275 Net Adj Acres @ $ 304.00 /NAA = $ 27,033.96 Estimated Deferred UGM Major Street Bridge Charge = $ 27,033.96 F. UGM Grade Separation Charge Service Area: 88.9275 Net Adjusted Acres @ $_/NAA = $ N/A G. The following charges are not deferrable under the terms of this covenant: 1. UGM Major Street rights of way acquisition and construction 2. UGM Local Street rights of way acquisition and construction 3. UGM Major Street Bridge rights of way acquisition and construction document:1wp511deferra1 pm2004-36exhibitA August 31,2007 ' • EXHIBIT "B"-- PRORATED FEE OBLIGATIONS Parcel Map 2004-36 Sewer, Water & UGM Fees DUE-DEFERRED BY COVENANT Water Water TGM Water 1994 Sewer Sewer Fire Neighborhood Major Major Lot Lot Frontage Bond Debt Bond Debt Lateral Oversize Station Park Street Bridge No. Area Amount Amount Amount Amount Amount Amount Amount Amount Amount Due Due Due Due Due Due Due Due Due A 88852 $596.55 $606.55 $650.37 $130.96 $596.91 $3,022.78 $1,592.51 $1,506.94 $708.08 B 76101 $510.94 $519.51 $557.04 $112.17 $511.25 $2,589.00 $1,363.98 $1,290.56 $606.45 C 90589 $608.21 $618.41 $663.08 $133.52 $608.58 $3,081.87 $1,623.65 $1,536.29 $721.91 D 50136 $336.61 $342.27 $366.98 $73.90 $336.82 $1,705.69 $898.62 $850.36 $399.55 E 51808 $347.83 $353.66 $379.22 1 $76.36 $348.05 1 $1,762.49 $928.55 $878.62 $412.86 F 100954 $677.80 $689.17 $738.95 $148.80 $678.21 $3,434.52 $1,809.43 $1,712.05 $804.51 G 76766 $515.40 $524.05 $561.90 $113.15 $515.72 $2,611.64 $1,375.91 $1,302.05 $611.77 H 70160 $471.05 $478.95 $513.55 $103.41 $471.34 $2,386.88 $1,257.50 $1,189.92 $559.12 1 105181 $706.18 $718.04 $769.89 $155.03 $706.61 $3,578.38 $1,885.23 $1,783.71 $838.19 J 107302 $720.42 $732.50 $785.42 $158.15 $720.86 $3,650.44 $1,923.19 $1,819.68 $855.09 K 78368 $526.16 $534.99 $573.63 $115.51 $526.48 $2,666.14 $1,404.62 $1,328.92 $624.51 L 63943 $429.31 $436.53 $468.04 $94.25 $429.57 $2,175.44 $1,146.10 $1,084.40 $509.56 M 1 86790 $582.70 $592.48 $635.28 1 $127.92 $583.06 $2,952.66 $1,555.57 $1,471.82 $691.63 N 51727 $347.29 $353.13 $378.63 $76.24 $347.50 $1,759.83 $927.14 $877.32 $412.22 O 49475 $332.17 $337.75 $362.14 $72.92 $332.38 $1,683.17 $886.76 $838.92 $394.26 P 64708 $434.44 $441.73 $473.64 $95.37 $434.71 $2,201.36 $1,159.76 $1,097.52 $515.68 Q 57628 $386.91 $393.39 $421.82 1 $84.94 $387.15 $1,960.49 $1,032.86 $977.43 $459.25 R 72247 $485.06 $493.19 $528.83 $106.49 $485.36 $2,457.85 $1,294.88 $1,225.29 $575.75 S 77028 $517.16 $525.85 $563.82 $113.53 $517.48 $2,620.60 $1,380.63 $1,306.27 $613.84 T 387542 $2,601.93 $2,645.59 $2,836.69 $571.20 $2,603.53 $13,184.40 $6,946.03 $6,572.53 $3,088.37 U 108378 $727.64 $739.86 $793.29 $159.74 $728.09 $3,687.13 $1,942.52 $1,837.91 $863.66 V 105847 $710.65 $722.58 $774.77 $156.01 $711.09 1 $3,601.03 $1,897.16 $1,795.14 $843.51 W 75443 $506.52 $515.01 $552.22 $111.20 $506.83 $2,566.59 $1,352.18 $1,279.55 $601.22 X 1 75127 $504.40 $512.85 $549.91 $110.73 $504.71 $2,555.82 $1,346.50 $1,274.14 $598.70 Y 88927 $597.05 $607.06 $650.92 $131.07 $597.42 $3,025.32 $1,593.85 $1,508.00 $708.65 Z 83059 $557.65 $567.02 $607.97 $122.42 $557.99 $2,825.75 $1,488.71 $1,408.56 $661.90 AA 71389 $479.30 $487.34 $522.55 $105.22 $479.59 $2,428.66 $1,279.51 $1,210.71 $568.91 AB 63982 $429.57 $436.77 $468.33 $94.30 $429.83 $2,176.65 $1,146.74 $1,084.99 $509.87 AC 1 17140 $115.08 $117.00 $125.46 $25.26 $115.15 $583.10 $307.20 $290.65 $136.59 AD 67098 $450.49 $458.06 $491.14 $98.90 $450.77 $2,282.74 $1,202.63 $1,137.89 $534.71 AE 65773 $441.59 $449.02 $481.44 $96.94 $441.87 $2,237.69 $1,178.90 $1,115.52 $524.16 AF 126936 $852.24 $866.54 $929.13 $187.09 $852.76 $4,318.43 $2,275.11 $2,152.70 $1,011.56 AG 70396 $472.63 $480.56 $515.28 $103.76 $472.92 $2,394.87 $1,261.71 $1,193.97 $561.00 AH 43941 $295.02 $299.96 $321.63 $64.76 $295.20 $1,494.86 $787.55 $745.29 $350.18 Al 40083 $269.11 $273.64 $293.40 $59.08 $269.28 $1,363.71 $718.45 $679.65 $319.41 AJ 40314 $270.67 $275.20 $295.09 $59.42 $270.83 $1,371.46 $722.53 $683.71 $321.27 AK 39550 $265.54 $270.00 $289.49 $58.29 $265.70 $1,345.54 $708.88 $670.84 $315.19 AL 40749 $273.59 $278.19 1 $298.27 $60.06 $273.75 $1,386.35 $730.38 $691.08 $324.73 AM 41897 $281.29 $286.01 $306.67 $61.75 $281.47 $1,425.35 $750.93 $710.57 $333.88 AN 35942 $241.31 $245.36 $263.08 $52.98 $241.46 $1,222.75 $644.19 $609.59 $286.43 AO 143637 $964.37 $980.55 $1,051.38 1 $211.71 $964.96 $4,886.63 $2,574.46 $2,435.93 1 $1,144.65 document:\q\print\h 31-Aug-07 EXHIBIT"B"-- PRORATED FEE OBLIGATIONS Parcel Map 2004-36 Sewer, Water & UGM Fees DUE-DEFERRED BY COVENANT Water Water TGM Water 1994 Sewer Sewer Fire Neighborhood Major Major Lot Lot Frontage Bond Debt Bond Debt Lateral Oversize Station Park Street Bridge No. Area Amount Amount Amount Amount Amount Amount Amount Amount Amount Due Due Due Due Due Due Due Due Due AP 66606 $447.19 $454.70 $487.54 $98.17 $447.46 $2,266.02 $1,193.83 $1,129.54 $530.78 AQ 72834 $489.00 $497.20 $533.12 $107.35 $489.30 $2,477.83 $1,305.41 $1,235.28 $580.43 document:\q\print\h 31-Aug-07 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on U-259' 67 , as Document No.2067- 02►22443 , in the office of the Fresno County Recorder, of which the Deed of Trust in, by and between: 'Farche r C,(Cs." Ptoo•r ktes,L-LC , a C"\.O'wis Vs^dreP It -..,", as Trustor, HL A C'f,c,; a.\ C.aw.��� , as Trustee, and n� Cclre4s6a4'i oh, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial Interest thereto to the foregoing Statement of Covenants Affecting Land Development for Deferring Certain Sewer Connection Charges, Water Connection Charges, Urban Growth Management Fees and Development Fees to the Time of Issuance of Certificate of Occupancy and Creation of Lien for Parcel Map No. 2004-36. L t DATED: BENEFICIARY Tc- By:- c-By: � vL '5 -'�o rr\a s M. l.•� �►� vice -'Pces►cAeY.� By: (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Placer On January 22, 2008 before me,Wendy Todhunter 0QTY polut DATE NAME,TITLE OF OFF CER" personally appeared Thomas M. LyLin-------------------------------------------------------------------- NAME(S) OF SIGNER(S) 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. WENDY TOULI DHcC UAA NTER 3 COMM.#1755553 NOTAp�CER COUNLT`� RNIA SIGNATURE OF NOTARY Comm.Exp•AUG.1,2011 This area for notarial seal OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNED DESCRIPTION OF ATTACHED DOCUMENT QINDIVIDUAL Subordination ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED P l uS � ❑ GENERAL ^^ rNUMBER O PAGES 11 ATTORNEY-IN-FACT • a',,a-• L Li Cl TRUSTEE(S) DATE OF DOCUMENT ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER(S)OTHER THAN NAMED ABOVE SIGNER IS REPRESENTING: