HomeMy WebLinkAboutT-5233 - Agreement/Covenant - 2/9/2005 (3) r
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WHEN RECORDED MAIL TO: FRESNO County Recorder
Robert C, Werner
City clerk DOC— 2004-0229907
City of Fresno Aect 2-Chicago Title Company
2600 Fresno Street Tuesday, OCT 12, 2004 08:00:00
Fresno, CA 93721-3603 Tt1 Pd $48.00 Nbr-0001624338
djg/R6/2-11
NO FEE-Government Code 6103
CITY of FRESNO
Public Utilities Department
P.W. File No. 10668
JAR 6616 East Simpson Avenue (T-5233, Lot 1)
STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT PROVIDING FOR SANITARY SEWER
CAPACITY IN THE FOWLER AVENUE TRUNK SEWER AND
DEFERRING PAYMENT OF INTERIM FEE SURETY TO THE
TIME OF ISSUANCE OF CERTIFICATE OF OCCUPANCY AND
CREATION OF LIEN FOR TRACT NO. 52339
PHASE 1 OF VESTING TENTATIVE MAP NO. 5233
C
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 2
RECITALS
WHEREAS, BN 5233 L.P., 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:
Lots 1 through 193, inclusive and Outlot"A," f Tract No. 5233 according
to the map thereof recorded on 120
in Volume _, of Plats at Page(s)
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 Map No. 5233 (hereinafter,
"Project"),require the payment of applicable sewer connection charges,water connection charges,
Urban Growth Management fees 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, in addition to such Fees, the City has negotiated a temporary exchange and
interim use of sanitary sewer capacity owned by the City of Clovis in the Fowler Avenue Trunk
Sewer as an alternative to the Covenantor's responsibility to construct separate sanitary sewer
facilities to provide sanitary sewer services to the Project; and
�i
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 3
WHEREAS,the exchange of such capacity owned by the City of Clovis is conditioned upon
the City of Fresno replacing the City of Clovis'capacity with capacity in future facilities agreeable
to the City of Clovis.at a cost yet to be determined; and
WHEREAS, the Covenantor agrees to pay an"Interim Fee Surety'in the amount estimated
by the Public Utilities Director until actual costs are determined and the City Council establishes
and adopts necessary and appropriate fees.for future replacement of the City of Clovis' Fowler
Avenue Trunk Sewer capacity; and
WHEREAS,the Covenantor,as a condition of issuance of building permit(s)for the Subject
Property 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 such
Interim Fee Surety 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. The Interim Fee Surety for the Fowler Avenue Trunk Sewer is estimated by the Public
Utilities Director to be $1000 per living unit or living unit equivalent (as such units are defined in
Chapter 9, Article 5 of the Fresno Municipal Code) and such amount shall be payable to the City
of Fresno prior to the issuance of a Certificate of Occupancy for 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 administer the payment of the Interim Fee Surety in the same manner
4,
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 4
as other Fees which have been duly deferred to the time of issuance of Certificates of Occupancy
until such time as the City Council establishes a fee for the replacement of the City of Clovis'
capacity in the Fowler Avenue Trunk Sewer and adopts provisions providing for the administration
of such fee.
2. The interim Fee Surety amount stated herein shall be maintained by the Public Utilities
Director and may be adjusted at the sole discretion of the Public Utilities Director to reflect the most
current Interim Fee Surety amount.
3. The actual Interim Fee Surety obligation shall be recalculated by the City at the time of
payment at the amount established by the Public Utilities Director in effect at the time of such
payment
4. Upon the establishment and adoption of a fee by the City Council for the replacement
of the City of Clovis'capacity in the Fowler Avenue Trunk Sewer, such adopted fee will be applied
to the Subject Property, in lieu of the Interim Fee Surety amount, at the adopted fee rate in effect
at the time the fee is payable pursuant to the provisions of this Covenant.
5. Covenantor hereby waives any claim that the provisions of this Covenant violate
Government Code §66498.1 and rights to develop under said Vesting Tentative Map.
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 Interim
Fee Surety amount.
7. The maximum period for deferment of the Interim Fee Surety 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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 5
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 which shall be recorded in the office of the Fresno County Recorder.
The lien shall be enforceable by the City in any manner available at law or in equity.
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 Interim Fee Surety
obligation or obligation for the fee adopted by the City Council for the replacement of the City of
Clovis' capacity in the Fowler Avenue Trunk Sewer.
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 6
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 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.
C
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5233
Page 7
DATED:
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
BN 5233 L.P.
a California Limited Partnership
By By: Bonadelle Homes, Inc.
Martin R. McIntyre, Director a California Corporation
Public Utilities Department as General Partner
By: J2—jt�
APPROVED AS TO.FORM: hn A. Bonadelle, President
HILDA CANTO-MONTOY
City Attorney
By
Deputy
(Attach Notary Acknowledgment)
KAI-ouisrTT 5233TT5233 Covenant Fowler Interim Fee Surety
v07-02-04.wpd
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STATE OF CALIFORNIA,
COUNTY OF
Fresno } S.S.
On August 27, 2004 , before me, Atna M. Renna
a Notary Public in and for said County and State, personally
appeared John A Bonadelle
personally known to me ( FOR NOTARY SEAL OR STAMP
to be
the persons) whose nameps) Wan subscribed to
the within instrument and acknowledged to me that
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he/ #�egr executed the same in his/ ew> 4K AsaF*'A M.RP.kNA
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authorized capacity(ks), and that by his/JMVVVXK �' s ��"''NOTARY,=uBLIC-CALIFORNIA ccnn
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signature(a) on the instrument the person(&), or i 1 F�. $"iQ CGUNRY
the entity upon behalf of which the person(§) ox: ray cnmr. xp.A1,19.30,2007
acted, executed the instrument.
WITNESS my hand and offWal seal.
Signature
STATE OF CALIFORNIA,
COUNTY OF } S.S.
On , before me,
a Notary Public in and for said County and State, personally
appeared
personally known to me (or proved to me on FOR NOTARY SEAL OR STAMP
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.
Signature
TE 160 Legal(2-94)
This form is furnished by Chicago Title Company
Tract No. 5233/UGM
P.W. File No. 10668
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed
of Trust recorded on May 18, 2004, in the office of the Fresno County Recorder, Document No.
20040109049 of which the Deed of Trust in by and between BH 5233 L. P., a California Limited
Partnership,as Trustor,Chicago Title Company,a California Corporation,as Trustee and California
Bank &Trust, a California Banking Corporation, Beneficiary, hereby expressly subordinates said
Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting
Land Development Providing for Sanitary Sewer Capacity in the Fowler Avenue Trunk Sewer and
Deferring Payment of Interim Fee Surety to the time of Issuance of Certificate of Occupancy and
Creation of Lien for Tract No. 5233, Phase 1 of Vesting Tentative Map No. 5233/UGM
DATED: 1-022—0 , 20
TRUSTEE OR BENEFICIARY
By:
By:
4,--cft 0j')
(print/Type Name and Title of Signing Person
Attach Notary Acknowledgement)
STATE OF CALIFORNIA,
COUNTY OF Fresno } S.S.
On August 27, 2004 , before me, Anna M. Renna
a Notary Public in and for said County and State, personally
appeared Richard J. Audino
;p>exsc rAtyx:kmv aox1lxn uex(or proved to me on FOR NOTARY SEAL OR STAMP
the basis of satisfactory evidence) to be
the person(s) whose names) is/amsubscribed to
the within instrument and acknowledged to me that
he/stmiRmW executed the same in his/haaittmAlz
NA
authorized ca acit oes , and that b his/Mri tmkix ,+'"" ANNA M.REN19
P Y(� ) Y �' � COMM., 1488198 01
signature(s) on the instrument the person(s), or t NOTARYInALIC-CA!"RINA N
the entity upon behalf of which the person(#) FRESNO COUNTY
acted, executed the instrument. ' �°'�'
WITNESS my hand 1andj�o I ial seal.
Signature �-�-/
TE 180 Legal(2.94)
This form is furnished by Chicago Title Company
A
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO )
On October 4,2004, before me, Elvia Sommerville, Deputy City Clerk,personally appeared,
Martin R. McIntyre, Public Utilities Director, known to me (or proved to me on the basis of
satisfactory evidence)to be the person(s) whose name(s) 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(s) the person(s), or the
entity upon behalf of the City of Fresno of which the person(s)acted, executed the instrument.
WITNESSmy hand and official City Seal.
REBECCA E. KL ISCH, CMC
CITY CLERK
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By c�
Deputy October 4,2004(1:04pm)