HomeMy WebLinkAboutPM 2011-10 - Agreement/Covenant - 5/12/2014 (2) WHEN RECORDED MAIL TO:
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City of Fresno
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Fresno, CA 93721-3603
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STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT DEFERRING TRAFFIC SIGNAL FEES TO THE
TIME OF ISSUANCE OF CERTIFICATE OF OCCUPANCY AND
CREATION OF LIEN FOR PARCEL MAP NO. 2011-10
t,.
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 2
RECITALS
WHEREAS, BRAWLEY BUSINESS PARK, LLC, a California Limited Liability
Company and DON PICKETT & ASSOCIATES, 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:
Parcels A through KKK, inclusive, of Parcel Map No. 2011-10
according to the map thereof recorded in Book 7A of
Parcel Maps at Page(s) .20r .21 +-,.12 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. 2011-10
(hereinafter, "Project"), require the payment of applicable sewer connection charges, water
connection charges, traffic signal charge, Urban Growth Management fees, city-wide fees,
Millbrook Overlay Sewer fee, Copper Avenue Sewer Lift Station Benefit Service Fee (hereinafter,
"Fees") in accordance with the provisions of Chapters 9, 11, 12 and 14 of the Fresno Municipal
Code, Resolution Nos. 95-117, 95-118 and 2003-264 (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
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 3
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 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 City's 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
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 4
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 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
Covenants 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 Covenants 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 Statement of
Covenant effective upon mailed notice to Covenantor to adjust(including adding, reducing
or removing) credits at any time prior to acceptance of all required infrastructure
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 5
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 this Statement of Covenant 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 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
Covenants violate Government Code Section 65961.
9. Each of the covenants, conditions, and restrictions contained in this Statement of
Covenants shall run with the Subject Property and shall be binding upon each successive owner of
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 6
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 Covenants.
10. The conditions of this Statement of Covenants are intended to benefit the public and
public properties. Accordingly, the City of Fresno shall have the right to enforce this Statement of
Covenants by any legal or equitable means. All obligations of the Covenantor in this Statement of
Covenants 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 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 of Covenants,for each lot or parcel
Statement of Covenants
Fee Deferral
Parcel Map No. 2011-10
Page 7
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 Covenants 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 Covenants 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 of Covenants so requires, in interpreting this Statement of Covenants, 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. 2011-10
Page 8
DATED: 261r`l/
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
BRAWLEY BUSINESS PARK, LLC,
Development & Resource Management a California Limited Liability Company
Department
Jennifer Clark, Director
By: C�JV By:
Jenn f r Cl yk, Director Donald V. Pickett, President
By:
Achae!Pickett, Vice President
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney DON PICKETT & ASSOCIATES, INC.,
a California Corporation
By:
KRaterman-Doidge
y City Attorney
I-Ild By:
Michael Pickett, President
Date:
(Attach Notary Acknowledgment)
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On May 1, 2014 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared,
Jennifer 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 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
YVONIVE SPENCE, CMC
City Clerk, City of Fresno
s � �
Y — `
�'ffa PSS
Deputy
State of California
County of Fresno
On April 8. 2014 before me, ,La-uren Michele Aguilar, Notary Public, personally
appeared Michael Pickett and Donald V. Pickett who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) Ware subscribed to the within
instrument and acknowledged tome that I;ld/s e/they executed the same in hi•E/herr/their
authorized capacity(ies), and that by hii/hibr/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.'-
``, LAUREN MICHELE AGUILA
r `� NOTARY PUBLIC CALIFORNIA
_ `2 'S`- l" COMMISSION# 1968249
FRESNO COUNTY
•+=N My,Comm Exp February.2.2016
Pin
Notary Name Lauren Michele Aguilar Notary Phone (559) 431-3535
Commission #: 1968249 County: Fresno Commission Expires: Feb. 2, 2016
Other information:
Statement of covenants affecting land development deferring traffic signal fees to the time of issuance of certificate of occupancy
and creation of lien for parcel map no.2011-10
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on December 24, 2013 in the office of the Fresno County Recorder
as Document No. 2013-0172200 of which the Deed of Trust in by and
between: Don Pickett & Associates, Inc. as Trustor,
First American Title Company as Trustee,
and Brawley Business Park, LLC. as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing Statement of Covenants Affecting Land Development Deferring-Ge4aie-&ewieF Traffic
Corw�e4en-Gl+afge&,-VVatef4C-en*ec4&�-GhaFgee,-4-k4a,a-R-GFowt�Mia-R-agemeri4-F ,-Gity i� Xl Fees
-Fee-ar}d- xaegt-Fee&to the Time of Issuance of Certificate of Occupancy and Creation
of Lien for Parcel Map No. 2011-10.
DATED: April 8, 2014
BENEFng�
By:
Name: Donald V. Pickett
Title: President
•
By:
Name: Michael Pickett
Title: Vice-President
(Beneficiary to print/type Name and Title;
and attach Notary Acknowledgment)
State of California
County of Fresno
On April 8, 2014 before me, Lauren Michele Aguilar, Notary Public, personally
appeared Michael Pickett and Donald V. Pickett who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) i.slare subscribed to the within
instrument and acknowledged to me that helsJWe/they executed the same in hX/16r/their
authorized capacity(ies), and that by his6/4er/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.
A 01
LAUREN MICHELE AGUILAR
e' NOTARY PUBLIC CALIFORNIA
WITNESS my hand and official seal. COMMISSION# 19+8245
FRESNO COUNTY
My Comm Exp February 2.2pt6 J
h A A),Aj
Notary Name Lauren Michele Aquilar Notary Phone (559) 431-3535
Commission #: 1968249 County: Fresno Commission Expires: Feb. 2, 2016
Other information:
Statement of covenants affecting land development deferring traffic signal fees to the time of issuance of certificate of occupancy
and creation of lien for parcel map no.2011-10—Subordination
EXHIBIT "A"
DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR PARCEL MAP 2011-10
Project Zoning: M-3
I. CITYWIDE IMPACT FEES
A. Traffic Signal Charge
3,217 Average Daily Trips @ $ 47.12/ADT = $151,585.04
Less Estimated Traffic Signal Credits = $ 0.00
Estimated Deferred Traffic Signal Charge = $151,585.04
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\deferral\pm2011-10exhibitA April 8,2014
EXHIBIT"B" -- PRORATED FEE OBLIGATIONS
PM 2011-10 Traffic Signal Charges DUE - DEFERRED BY COVENANT
Traffic
Parcel Lot Signal
No. Area Amount
Due
A 39362 $4,523.52
B 14008 $1,602.08
C 14008 $1,602.08
D 14008 $1,602.08
E 14008 $1,602.08
F 14008 $1,602.08
G 14008 $1,602.08
H 27772 $3,204.16
1 14599 $1,696.32
J 14495 $1,649.20
K 14495 $1,649.20
L 28734 $3,298.40
M 28786 $3,298.40
N 28438 $3,298.40
O 40267 $4,664.88
P 15831 $1,837.68
Q 14735 $1,696.32
R 14741 $1,696.32
S 14746 $1,696.32
T 14752 $1,696.32
U 14758 $1,696.32
V 14763 $1,696.32
W 14185 $1,649.20
X 21803 $2,497.36
Y 66733 $7,633.44
Z 26800 $3,109.92
AA 13802 $1,602.08
BB 13802 $1,602.08
CC 13802 $1,602.08
DD 13802 $1,602.08
EE 13802 $1,602.08
FF 13947 $1,602.08
document:\q\print\h 08-Apr-14
EXHIBIT "B" -- PRORATED FEE OBLIGATIONS
PM 2011-10 Traffic Signal Charges DUE - DEFERRED BY COVENANT
Traffic
Parcel Lot Signal
No. Area Amount
Due
GG 13820 $1,602.08
HH 13802 $1,602.08
11 13802 $1,602.08
JJ 13802 $1,602.08
KK 13802 $1,602.08
LL 13802 $1,602-08
MM 26800 $3,109.92
NN 68074 $7,821.92
00 26800 $3,109.92
PP 13802 $1,602.08
QQ 13802 $1,602.08
RR 13802 $1,602.08
SS 26455 $3,062.80
TT 44697 $5,088.96
UU 13802 $1,602.08
VV 13802 $1,602.08
WW 13802 $1,602.08
XX 26800 $3,109.92
YY 62226 $7,115.12
ZZ 26800 $3,109.92
AAA 13802 $1,602.08
BBB 13802 $1,602.08
CCC 13804 $1,602.08
DDD 14711 $1,696.32
EEE 36794 $4,240.80
FFF 27202 $3,157.04
GGG 13802 $1,602.08
HHH 13802 $1,602.08
111 13802 $1,602.08
JJJ 13802 $1,602.08
KKK 26800 $3,109.92
document:\q\print\h 08-Apr-14