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HomeMy WebLinkAboutPM 2009-07 - Agreement/Covenant - 5/31/2011 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 05/26/2011,20110070947 NO FEE - Government Code 6103 Z CITY of FRESNO GPlanning and Development Department LL 7- 0 d L) W co Q W J CL 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. 2009-07 Statement of Covenants Fee Deferral Parcel Map No. 2009-07 Page 2 RECITALS WHEREAS, NMSBPCSLDHB, a California Limited Partnership, 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 F, inclusive, of Parcel Map No. 2009-07 according to the map thereof recorded in Book 71) of Parcel Maps at Page(s)$fQ_U7 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. 2009-07(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 Covenantorthe option to defercertain 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 bythe State of California and as amended by the City of Fresno, including any subsequent extension and Statement of Covenants Fee Deferral Parcel Map No. 2009-07 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 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 mannerto each lot, parcel, unitor 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 Development Director and shall be adjusted to reflect the Fee rates in effect at the time payment is made, and may be adjusted to account for 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 Statement of Covenants Fee Deferral Parcel Map No. 2009-07 Page 4 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 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, Statement of Covenants Fee Deferral Parcel Map No. 2009-07 Page 5 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 or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 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. 14. The provisions of this Statement shall be deemed independent and severable and the invalidity or partial invalidity or unenforceability of anyone provision or portion thereof shall not affect the validity or enforceability of anyone 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 Parcel Map No. 2009-07 Page 6 DATED: 2, ZD// CITY OF FRESNO, COVENANTOR a Municipal Corporation NMSBPCSLDHB, Planning and Development Department a California Limited Partnership Vii"teneral Partner, Robert M. Granum, II, As Trustee of the Granum Family ust By: By: MARK SCOTT, t»irccm Orrec-,t Robert . Granu r P r#t�er- Trustee APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: - S nnon Chaffin Deputy City Attorney Date: (Attach Notary Acknowledgments) CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT STATE OF CALIFORNIA �� COUNTY OF ss. � a- ON ► 'Vey- JOHN BEFORE ME, I��1{N l;• SORCI NOTARY PUBLIC iv Date Name PERSONALLY APPEARED Rd 13m—fzr M. GP_'?tt/y M -t:r- WHO PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE PERSON (�4 WHOSE NAME (,3) IS/ARr- SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SFIEffHEEY EXECUTED THE SAME IN HIS/HF-�EIR AUTHORIZED CAPACITY (IES AND THAT BY HIS/HERHEIR JOHN i SORCI SIGNATURE (fit) ON THE INSTRUMENT THE PERSON (,f, OR THE Commission#1691645 ENTITY UPON BEHALF OF WHICH THE PERSON (S�) ACTED, NotaryPubUo--Cafifomia EXECUTED THE INSTRUMENT. -a Santa Clara County MyComm.ExPkes Oct 1,201 1 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. W_U "'_ Signature of Notary OPTIONAL FORMATION The information below is not required by law, but it may prove to be important to persons relying on the document and could prevent fraudulent removal and reattachment of this form to some other document. DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT: 2 99, DOCUMENT DATE: NUMBER OF PAGES SIGNER(S)OTHER THAN NAMED ABOVE: CAPACITY (IES) CLAIMED BY SIGNER (S) S�IIGNER's NAME: SIGNER'S NAME: /�--INDIVIDUAL _INDIVIDUAL _CORPORATE OFFICER _CORPORATE OFFICER TITLE(S): TITLE(S): _PARTNER PARTNER LIMITED _GENERAL —LIMITED GENERAL ATTORNEY-iN-FACT _ATTORNEY-IN-FACT TRUSTEE TRUSTEE GUARDIAN OR CONSERVATOR GUARDIAN OR CONSERVATOR OTHER: OTHER: SIGNER IS REPRESENTING: SIGNER IS REPRESENTING: RIGHT THUMBPRINT RIGHT THUMBPRINT OF SIGNER OF SIGNER A-24 HOUR NOTARY SERVICE-2709 EI Camino Av Sacramento,CA 95821 -Rev 12-01-2007-FOR REORDERS:CALL TOLL-FREE 800-536-7233 CLERK'S CERTIFICATION State of California ) County of Fresno ) On May 13, 2011 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Mark Scott, Interim Director, Planning & 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 enl:ity 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 aWl� 9 Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on August 8, 2005, as Document No. 2005-0179032, in the office of the Fresno County Recorder, of which -the Deed of Trust in, by and between: NMSBPCSLDHB, A California Limited Partnership, as Trustor, FIRST AMERICAN TITLE, as Trustee, and INTERVEST- MORTGAGE INVESTMENT COMPANY, a Washington corporation, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing 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. 2009-07. DATED: Y fni20Ia BENEFICIARY INTERVEST-Mortgage Investment Company, a Washington Corporation By: L , President Lcv-D A. 1aMey N - Secretary Ned M. Bo_r,1e5 (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) State of Oregon ) )ss. County of Clackamas ) I certify that I know or have satisfactory evidence that LARRY A. CONLEY is the person who appeared before me, and said person acknowledged that he was authorized to sign this instrument as President of Intervest-Mortgage Investment Company,and acknowledged it to be the free and voluntary act of such entity, for the uses and purposes mentioned in the instrument. DATED: May_ 2010. Print Name: BYIu?( L L U ND Notary Public in and for the State of Oregon o. OFFICIAL SEAL Residing at W!L.S UN V t LLQ BRENDA L LUND NOTARY PUBLIC-OREGON My appointment expires: { t 3 �+ ' COMMISSION NO.416901 MY COMMISSION EXPIRES JUNE 13,2011 State of Washington ) )ss. County of Spokane ) I certify that I know or have satisfactory evidence that NED M. BARNES is the person who appeared before me, and said person acknowledged that he was authorized to sign this instrument as Secretary of Intervest-Mortgage Investment Company and acknowledged it to be the free and voluntary act of such entity, for the uses and purposes mentioned in the instrument. DATED: May 5, 2010 p,MITCHF� Susan A. Mitchell c, ,ss"gyp°�xarfQ°� Notary Public in and for the State of Washington �: o ovjkRy Residing at: Nine Mile Falls N w o My appointment expires: February 15, 2011 N G o OFWP r EXHIBIT "A" DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS Project Zoning: C-M/cz I. WATER CONNECTION CHARGES Served by Pinedale County Water District. Il. SEWER CONNECTION CHARGES & SEWER RELATED CHARGES Served by Pinedale Public Utility District. III. CITYWIDE IMPACT FEES A. Traffic Signal Charge Parcel A 123 Average Daily Trips @ $ 47.12 /ADT = $ 5,795.76 Parcel B 301 Average Daily Trips @ $ 47.12 /ADT = $ 14,183.12 Parcel C 484 Average Daily Trips @ $ 47.12 /ADT = $ 22,806.08 Parcel D 409 Average Daily Trips @ $ 47.12 /ADT = $ 19,272.08 Parcel E * 0 * Average Daily Trips @ $ 47.12 /ADT = $ .0.00 Parcel F 1,322 Average Daily Trips @ $ 47.12 /ADT = $ 62,292.64 TOTAL $124,349.68' Estimated Deferred Traffic Signal Charge = $124,349.68 C-06-169, Based location of parking lot on Parcel E B. 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) document:\wp51\deferraRPM2002-09rexhibitAr March 11,2010 EXHIBIT "B" -- PRORATED FEE OBLIGATIONS PM 2009-07 Fees DUE-DEFERRED BY COVENANT Traffic Parcel Lot Signal No. Area Amount Due A 55620 $5,795.76 B 125573 $14,183.12 C 156639 $22,806.08 D 193466 $19,272.08 E 121737 $0.00 F 296220 $62,292.64 document:\q\print\h 11-Mar-10