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Home My WebLink AboutPM 2010-09 - Agreement/Covenant - 3/21/2014 (2) WHEN RECORDED MAIL TO: 03/20/2014,20140031666 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE-Government Code 6103 CITY of FRESNO CC Development& Resource Management Department 0 W Z 0 C3 W d W J 0. 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. 2010-09 Statement of Covenants Fee Deferral Parcel Map No. 2010-09 Page 2 RECITALS WHEREAS, PAINTBRUSH, 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: Parcels A through D, inclusive, of Parcel Map No. 2010-09 according to the map thereof recorded in Book '� 7- of Parcel Maps at Page(s) 11 Arj°?4 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.2010-09(hereafter, "Project"), require the payment of applicable sewer connection charges,water connection charges, Urban Growth Management fees, City-wide 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 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. 2010-09 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 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 by the 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 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 Statement of Covenants Fee Deferral Parcel Map No. 2010-09 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. 2010-09 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. 2010-09 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"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. 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. 2010-09 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. Statement of Covenants Fee Deferral Parcel Map No. 2010-09 Page 8 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation PAINTBRUSH, LLC, Development & Resource a California Limited Liability Company Management Department Jennifer K. Clark, Director By: By: Ma;k 4eter+m-Director Bryan N. Wagner, Managing, Member Jen if r K. Clark i �J APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: 1 . Talia Kolluri-Barbick Deputy City Attorney Dater T (Attach Notary Acknowledgments) State of California CLERK'S CERTIFICATION ) County of Fresno ) On March 11, 2014 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Jennifer K. Clark, Director, Development & Resource Management 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 instrumert 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 fy f �m Deputy F�, T CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC State of California ) County of Fresno ) On A)d 13 d-olj , before me, CHRISTINE B. BARILE,Notary Public,personally appeared BRYAN N. WAGNER, 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. Sch CHRISTINE B.HARILE COMh1.#191'7598 N I P NOTAIIY PUBLIC-CAIJFORNIA� Notary Public, State of California EMC[n FRESNO COUNTY my Comm.Exp.Jan.14,2015 (Notary Seal) EXHIBIT "A" DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR PARCEL MAP 2010-09 Project Zoning: C-6/UGM I. WATER CONNECTION CHARGES A. Service Connections (flat rate cost basis only) -_ inch Services @ $_/Service = $ N/A B. UGM Transmission Grid Main (TGM) Charge 8.5519 Gross Acres @ $643.00 /ac. _ $ 5,498.87 Estimated Net Deferred UGM TGM Charge = $ 5,498.87 C. Transmission Grid Main Bond Debt Service Charge For Parcels Under 5 Gross Acres 8.5519 Gross Acres @ $243.00/ac. _ $ 2,078.11 Estimated Net Deferred TGM Bond Debt Service Charge = $ 2,078.11 D. Frontage Fee 981 Lineal Feet @ $ 6.50/LF = $ 6,376.50 Estimated Deferred Frontage Fee = $ 6,376.50 E. 1994 Bond Debt Service Fee 301 1994 Bond Debt Service Area. 43 Living Unit Equivalents @ $60.00/Unit = $ 2,580.00 F. 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 0 II. SEWER CONNECTION CHARGES & SEWER RELATED CHARGES A. UGM Oversize Sewer Charge 103,100 Square Feet @ $0.05/ Sq. Ft. = $ 5,155.00 Estimated Net Deferred UGM Oversize Charge = $ 5,155.00 B. Lateral Sewer Charge 81,200 Square Feet @ $0.10 /Sq. Ft. = $ 8.120.00 Estimated Net Deferred Lateral Sewer Charge = $ 8,120.00 C. Housebranch Sewer Charge = $ N/A D. Millbrook Sewer Overlay Net Adj Gross Ac @ $ /NAA = $ 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 Grade Separation Charge Service Area: E-4-A 7.8305 Net Adjusted Acres @ $ 443.00 /NAA = $ 3,468.91 IV. CITYWIDE IMPACT FEES A. Traffic Signal Charge 2591 Average Daily Trips @ $ 47.12/ADT = $139,051.12 Estimated Deferred Traffic Signal Charge = $139.051.12 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. 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