HomeMy WebLinkAboutT-5237 - Agreement/Covenant - 12/29/2005 (4) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
Q
W
DC �
0 NO FEE-Government Code 6103
Lj— U
C=) CITY of FRESNO
C.? Public Utilities Department
P.W. File No. 10681
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. 5237
f '
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5237
Page 2
RECITALS
WHEREAS, WOODSIDE AVALON, 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 and by this reference made part of this Statement of Covenants:
Lots 1 through 393, inclusive,.of Tract No. 5237 according
to the map thereof recorded on C`rkeRMJ7e4 r"29 , 2005
in Volume_ ?`/ , of Plats at Page(s) .22S lhru 32—
Fresno
ZFresno 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 Tentative Map No. 5237(hereinafter, "Project"),
require the payment of applicable sewer connection charges, water connection charges,.Urban
Growth Managementfees and/orthe Millbrook Overlay Sewerfee(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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5237
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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5237
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. 5237
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.
13. The conditions and obligations of this Statement shall remain in full force and effect
t
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5237
Page 6
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.
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5237
Page 7
DATED: ?
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
WOODSIDE AVALON, INC,
a California Corporation
By By:
Renh ddmiU Assista t Director re, President
Public Utilities Department
APPROVED AS TO FORM:
HILDA CANTO-MONTOY
City Attorney (Attach Notary Acknowledgment)
By
Deputy
a
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
tw✓'o— - ss.
On before -.me, ,
Date (l 0- Y 1/� Name and Title of Officer(e.g.,"Jane Doe,Notary Pue)
2 personally appeared - ,
Name(s)of Signer(s)
personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
MONICA C.GAEZA to the within instrument andacknowledged to me that
Commtsalon#1552008 he/she/they executed the same in his/her/their
s Notary PL"lc-Color authorized capacity(ies), and that by his/her/their
FMMCourdy signature(s) on the instrument the person(s), or the
t�flyComm�Feb12•t entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above (�� Vqg4a__
Signature of Notary Public
OPTIONAL
Though the information below..is not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other.Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑General ❑ Partner—❑ Limited ❑General
111A movi
❑ Attorneyin Fac - - ---
t Top of thumb here ❑ Attorney In Fact Top of thumb here
❑ Trustee ElTrustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827
O. r
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO )
On December 21, 2005, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
Rene Ramirez, Assistant 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.
WITNESS my hand and official City Seal.
REBECCA E. KL ISCH, CMC
CITY CLERK
Q o
By `� J
Deputy December 21,2005(9:32am)
n n n
w �V