HomeMy WebLinkAboutPM 2006-50 - Agreement/Covenant - 12/30/2014 WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
12/30/2014120140145696
NO FEE - Government Code 6103
CITY of FRESNO
OLL Development& Resource Management Department
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STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
DEFERRING CERTAIN SEWER CONNECTION CHARGES, WATER
CONNECTION CHARGES, URBAN GROWTH MANAGEMENT FEES,
CITY-WIDE FEES AND DEVELOPMENT FEES TO THE TIME'OF
ISSUANCE OF CERTIFICATE OF OCCUPANCY AND CREATION OF
LIEN FOR PARCEL MAP NO. 2006-50
Statement of Covenants
Fee Deferral
Parcel Map No. 2006-50
Page 2
RECITALS
WHEREAS, FOUNDRY PARK INVESTORS, L.P., a California Limited Partnership and
RUSSELL G.SMITH,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:
Parcel A of Parcel Map No. 2006-50 according to the map thereof recorded in
Book_�7 2�of Parcel Maps at Page(s)58 f 5 1, 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 Parcel Map No.2006-50(hereafter,
"Project"), require the payment of applicable sewer connection charges,water connection charges,
Urban Growth Management fees, City-wide Fees,Traffic Signal Charge and/orthe 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
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("City'), including any subsequent extension and
Statement of Covenants
Fee Deferral
Parcel Map No. 2006-50
Page 3
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 maybe prorated by the City to each lot, parcel,unit or building on the Subject Property in the
manner established by the Development & Resource Management 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 Development & Resource Management 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 bythe Development&
Resource Management Director and shall be adjusted to reflect the Fee rates in effect at the time
payment is made,and may be adjusted to accountforany 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
Statement of Covenants
Fee Deferral
Parcel Map No. 2006-50
Page 4
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.
a. 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 of
Covenant except as set forth in subsection "b", below. 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.
b. Covenantor may receive designated fee credits from the City as offsets
toward a UGM or development impact fee for construction of certain required infrastructure
improvements either as a part of this Statement of Covenant or at some future date.
Covenantor acknowledges and agrees any such fee credits are provided contingent upon
the City accepting required infrastructure improvements completely installed by Covenantor.
Until then, and notwithstanding any other provision, Covenantor expressly agrees
Covenantor has no right to any portion of any fee credit and the Director of Public Works for
the City, in the Director's sole discretion, may unilaterally amend this Agreement effective
upon mailed notice to Covenantor to adjust(including adding, reducing or removing)credits
at any time prior to acceptance of all required infrastructure improvements by City. Upon
adjustment, Covenantor shall pay in full any UGM or development impact fees, due from
modification of the fee credit, prior to approval of the parcel map or as may be deferred by a
this Statement of Covenants or applicable fee deferral covenant. If the parcel map has
already been approved and there is no applicable fee deferral covenant, all such fees shall
be promptly paid by Covenantor. The City may enforce recovery of such fees in any manner
Statement of Covenants
Fee Deferral
Parcel Map No.2006-50
Page 5
available at law or in equity, including but not limited to private foreclosure and sale of the
property in the manner provided in Section 2924 of the California Civil Code or successor
statute.
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 Development& Resource Management 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 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 Statement of Covenant
violate Government Code Section 65961.
9. Each of the covenants,conditions,and restrictions contained in this Statement of Covenant
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 of Covenant.
10. The conditions of this Statement of Covenant are intended to benefit the public and public
properties. Accordingly, the City shall have the right to enforce this Statement of Covenant by any
legal or equitable means. All obligations of the Covenantor in this Statement of Covenant shall inure
Statement of Covenants
Fee Deferral
Parcel Map No.2006-50
Page 6
solely to the benefit of the City. There are no third party beneficiaries of said obligations nor shall
the right of the City 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 attorneys 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"attomeys'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 attomeys'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 maybe waived unless in writing and signed by all parties to this Covenant. Waiverof 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 of Covenant, 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.
14.The conditions and obligations of this Statement of Covenant 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 of Covenant 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
Fee Deferral
Parcel Map No.2006-50
Page 7
not affect the validity or enforceability of any other provision hereof. Whenever the context of the
Statement of Covenant so requires,in interpreting this Statement of Covenant,any gender includes
the-other-genders,the singular includes the plural, and the plural includes the singular.
n
9
Statement of Covenants
Fee Deferral
Parcel Map No.2006-50
Page 8
DATED:
C17-Y OF FRESNO, COVENANTOR
a Municipal Corporation
FOUNDRY PARK INVESTORS, L.P.,
Development& Resource Management A California Limited Partnership
Department
Jennifer K. Clark, Director
By: qr4z CA-'k- By:
Jen if Clark, Director RusAGSrnith. General Partner
APPROVED AS TO FORM: RUSSELL G. SMITH, INC.,
A California Corporation
DOUGLAS T. SLOAN
City Attorney
By:
By: R sel . Smit , President
M aterman-Doidge
eputy City Attorney
Date: 1L ID Z I
(Attach Notary Acknowledgments)
STATE OF HAWAII
} SS
COUNTY OF KAUAI
On this 1� day of #%*-M , 2014. in the 5h Circuit, State of
Hawaii, before e personally appeared f<V SQL L &. /r It I and
)1r.—. to me personally known ( or proved to be on
the basis of satisfactory evidence ), who, being dully sworn or affirmed, did say that such
person(s) executed the foregoing instrument identified or described
as , rATE-=--#X Of' CoVeVAWT-S. , , , as the free act and deed
of such person (s), and if applicable, in the capacity shown, having been duly authorized
to execute such instrument in such capacity. The foregoing instrument is
dated t�C t L j 2014 and contained �pages at the time of
this acknowledgement/certification.
R Tj
'S'�j'. F K R TURONIS
"
NOTARY �
PUBLIC _ Notary Public
Fifth Judicial Circuit
No 03"764 State of Hawaii
My Commission Expires 12/28/2015
&DF0NMy Commission No. 03-764
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On December 11 , 2014 before me, Cindy Bruer, Deputy City Clerk, personally
appeared Jennifer K. Clark, Director of the Development and Resource
Management Department 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 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), acted, executed the instrument.
I certify under PENALTY OR 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
BY \�� OF
FRfiS
U y
Deputy z
0
4�rEo pcC,tit
SUBORDINATION
The undersigned as�hRopllder of the beneficial interest in and under that certain,Reed of Trust
�rQ r, R Z'c 9W 9-c �Ge
recorded on Q,a , as Document No.zona - vse�r� in the office of the
Fresno Cm#*Vbworder, of which the Deed of Trust in, by arid between: G. s,,N„rr
�c•�y�RY_� ��Ny s'.aY2S_ GP/JCrCII�_e ' 4414-1 � uFo2•v /y , as rustor,
as Trustee.
and_,LZ_4.r' zf6l,CQ �l ��E. �+• l,S1 77y- as Beneficiary,
hereby expressly subordinates said Deed o Trusted its beneficial interest thereto to the
foregoing Statement of Covenants Affecting Land Development for Deferring'Certain Sewer
Connection Charges, Water Connection Charges, Urban Qrgwth Management Fees, City-wide
Fees and Development Fees to the Time of Isstmnce of Pertificate of Occupancy and Creation
of Lien for Parcel Map No. 2006-50.
DATED:
BENJEFICIARY
B
Name: Sci✓ %s , J0f//v50,V
Title: V i Cj6-�' 6'2 f S
By:
Name:
Title:
(Beneficiary to printftype document
informgtion, Name, Title and attach Notary
Acknowledgment)
�
State of bi1
County of
On I 12M before me, dMIR tA kllck �"qm Notary Public,
\,� n(h�eree insert name of the officer)
personally appeared c , ) �• c\0\�� 101 ` who proved to me on the basis of
satisfactory evidence to be the personKwhose name(rs is subscribed to the within instrument and
acknowledged to me thathe executed the same in&weir authorized capacity(iso, and
that by&WA41reir signature(e)r on the instrument the personks), or the entity upon behalf of which the
persons'acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of 11 1 that the
foregoing paragraph is true and correct.
40
WITNESS my d and official s al. iAUREn�nil sroREv
?�e•• : CAI�IAI.11�2M56Q7
c `;. r HpfAHY PNIUC•CJYOIrM
U �;� F11E&IDCaGUWItt
iyC'M N a E*W 10AMM?
Signatu a Seal)
C-531_CA.DOC(Rev.08/07) -8•
19535479 1
EXHIBIT "A"
DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR PARCEL MAP NO. 2006-50
Project Zoning: C-P/UGM/cz
I. WATER CONNECTION CHARGES
A. Service Connections (flat rate cost basis only)
-_inch Services @ $_/Service = $ N/A
B. Meters (flat rate cost basis only)
-_inch Meters @ $_/Meter = $ N/A
C. UGM Transmission Grid Main (TGM) Charge
UGM Reimbursement Area: A
1.6541 Gross Acres @ $643.00 /ac. _ $ 1,063.59
Estimated Net Deferred UGM TGM Charge = $ 1,063.59
D. Transmission Grid Main Bond Debt Service Charge
For Parcels Under 5 Gross Acres
1.6541 Gross Acres @ $243.00/ac. _ $ 401.95
Estimated Net Deferred TGM Bond Debt Service Charge = $ 401.95
E. Frontage Fee
139 Lineal Feet @ $ 3.25 /LF = $ 451.75
150 Lineal Feet @ $ 6.50 /LF = $ 975.00
Sub-Total Frontage Fee = $ 1,426.75
Estimated Deferred Frontage Fee = $ 1,426.75
F. 1994 Bond Debt Service Fee
101 1994 Bond Debt Service Area.
10 Living Unit Equivalents @ $895.00/Unit = $ 8,950.00
Estimated Deferred 1994 Bond Debt Service Fee = $ 8,950.00
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
33,900 Square Feet @ $0.05/ Sq. Ft. = $ 1,695.00
Less amount paid through App. #06-2867 = $ 2,241.67
Estimated Net Deferred UGM Oversize Charge = $Paid w/ Credits
B. Lateral Sewer Charge
33,900 Square Feet @ $0.10/ Sq. Ft. = $ 3,390.00
Less amount paid through App. #06-2867 = $ 4,150.00
Estimated Net Deferred Lateral Sewer Charge = $Paid w/ Credits
C. Housebranch Sewer Charge = $ N/A
D. Millbrook Sewer Overlay
1.3071 Net Adj Gross Ac @ $393.00/NAA = $ 513.69
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 Major Street Charge
Service Area: E-1
1.3071 Net Adj Acres @ $ 2,436.00/NAA = $ 3,184.10
Estimated Net Deferred UGM Major Street Charge = $ 3,184.10
B. UGM Major Street Bridge Charge
Service Area: E-1
1.3071 Net Adj Acres @ $ 254.00/NAA = $ 322.00
Estimated Net Deferred UGM Major Street Bridge Charge = $ 322.00
C. UGM Grade Separation Charge
Service Area:
Net Adjusted Acres @ $ /NAA = $ N/A
D. 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
IV. CITYWIDE IMPACT FEES
A. The following charges are not deferrable under the terms of this covenant:
1. Citywide Fire Facilities Impact Fee(Due @ Occupancy-Reso. 05-429)
2. Citywide Park Facility Impact Fee (Due @ Occupancy-Reso. 05-427)
3. Citywide Police Facilities Impact Fee (Due @ Occupancy-Reso. 05-428)
4. Citywide Regional Street Impact Fee(Due @ Building Permit-Reso. 07-291)
5. Citywide New Growth Major Street Impact Fee (Due @ Building Permit-Reso. 07-291)
document1wp511deferraRPM2006r50rexhibitAr November 14,2014
EXHIBIT "B"--PRORATED FEE OBLIGATIONS
PM 2006-50 Sewer, Water & UGM Fees DUE/DEFERRED BY COVENANT
Frontage Frontage Water Water TGM Water 1994 Millbrook Major Major
Parcel Lot 1/2 Rate Full Rate T.G.M. Bond Debt Bond Debt Overlay Street Bridge
No. Area Amount Amount Amount Amount Amount Amount Amount Amount
Due Due Due Due Due Due Due Due
A 50608 1 $454.75 $975.00 $1,063.59 1 5401.95 1 $8,950.00 $513.69 J $3,184.10 1 $332.00
document:\q\print\h 14-Nov-14