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HomeMy WebLinkAboutT-5272 - Agreement/Covenant - 11/21/2006 (3) t WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 11/07/2006,20060236839 NO FEE - Government Code 6103 o CITY of FRESNO w Planning and Development Department Cl'- cl- O p L.L- U O U 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 THE FINAL MAP OF TRACT NO. 5272, PHASE 4 OF VESTING TENTATIVE MAP NO. 5205/UGM t i Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 2 RECITALS WHEREAS, COPPER RIVER RANCH VILLAGES, 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 and by this reference made part of this Statement of Covenants: Lots 1 through 25, inclusive, of Tract No. 5272 according to the map thereof recorded on &ny&-mJ3eC '2 , 2W�, in Volume '78 of Plats at Page(s) 5 t �,_, 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. 5205 (hereinafter, "Project"), require the payment of applicable sewer connection charges, water connection charges, traffic signal charge, Urban Growth Management(UGM)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 the Mitigation Monitoring Report for the Copper River Ranch Project; and WHEREAS,the above described 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 Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 3 WHEREAS, some of the service areas of the UGM fees do not currently encompass the Project area; and WHEREAS, the conditions of approval of the Project require the establishment of an impact fee structure(UGM and impact fees)and payment of special Copper River Ranch area impact fees ("CRR fees") for those impacts that would not otherwise be captured because the Project area falls outside of the existing UGM service areas; and WHEREAS, the City Council on June 14, 2005 directed staff to develop any ordinances or other documents and to return to the Council for future consideration to establish the impact fee structure and collect CRR fees; and WHEREAS, such ordinances or other documents and the collection of CRR fees are necessary for the City to make the finding that the Final Map of said Tract No. 5272 is in substantial compliance with the approved Tentative Map to enable said Final Map to be approved and recorded; and WHEREAS, such ordinances and other documents to establish a impact fee structure for CRR fees have not yet been presented to Council; and WHEREAS, the Covenantor, to facilitate the approval and recording of the Final Map of Tract No. 5272, in advance of the Council's consideration of such ordinances and other documents has elected to voluntarily pay an amount of money, representing Public Work's reasonable estimate, based upon the Fee Study for this Project, of the amount the special Copper Ranch area impact fees will be after adoption of all necessary ordinances by Council to establish the impact fee structure for the CRR fees ("advanced CRR fees"); and WHEREAS,the Covenantor,has elected to paythe advanced CRR fees provided that if and/or when the Council adopts an impact fee structure for CRR Fees,the advanced CRR Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 4 fees will be applied to satisfy the fees required under that newly adopted impact fee structure; and WHEREAS, the Covenantor 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 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 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 1 Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 5 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. 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. Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 6 9. The City agrees to accept payment of the advanced CRR Fees, to administer the advanced CRR Fees in the manner of existing adopted UGM and other impact fees provided herein, and upon adoption of the CRR Fees under a newly adopted impact fee structure for CRR fees,to subsequently apply the advanced CRR Fees to the fees required under the newly adopted impact fee structure and make any necessary adjustments to this Project, including, but not limited to, any reimbursement of overpayment or charging the Covenantor for underpayment, and adjustment of construction fee credits. 10. The Covenantor agrees to pay the City any and all monies necessary if it is determined by the City that the advanced CRR fees do not fully cover the CRR fees as determined appropriate under a newly adopted impact fee structure for CRR fees. 11. 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. 12. 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. 13. 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. Statement of Covenants Fee Deferral Final Map of Tract No. 5272 Page 7 14. 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. 15. 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. 16. 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 Fee Deferral Final Map of Tract No. 5272 Page 8 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation COPPER RIVER RANCH VILLAGES, LLC, a California Limited Liability Company By- -74LBy: LYLES DIVERSIFIED, INC, Ni ff. Yovino, Director a California Corporation, as Member PI ing and Development Department By: Gerald V Uj'19s, Vice Pr ent Y Michael T. Kim, P.E., Assistant Director Public Works Department By: GLENEAGLES HOMES, a California Corporation, dba GAR cDONALD HOMES, as Member 0 By: APPROVED AS TO FORM: M onald, Chairman JAMES C. SANCHEZ City Attorney By. 1�3�ja Deputy (Attach Notary Acknowledgment) STATE OF CALIFORNIA COUNTY OF FRESNO On October 17, 2006 before me, Rhonda E. Wessels, Notary Public, personally appeared Gerald V. Lyles, Personally known to me ❑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. WITNESS my hand and official seal. t�HgNDA�,INESSEI.S COMM. # 1638098 - 0 P o NOTARY PUBLIC-CALIFORNIA nn ,, FRESNO COUNTY n My Commission Expires 1 Rhonda E. Wessels, Notary Public February 1a,2010 Title or Type of Document: 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 the Final Map of Tract No. 5272, Phase 4 of the Vesting Tentative Map No. 5205/UGM. Date of Document: October 16, 2006 Number of Pages: 8 STATE OF CALIFORNIA ) ss. COUNTY OF FRESNO ) On October 16, 2006, before me, Jean Ishimoto, Notary Public, personally appeared Gary McDonald XPersonally known to me ❑ Proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. gEPup�,F 71.E JEAN ISHIMOTO COMM.#1604033 • ¢ w° m NOTARY PUBLIC CALIFORNIAcn LISs ° FRESNO COUNTY My Comm Exp.Sept.3,2009 Jeavh Ishimoto, Notary Public Title or Type of Document: 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 the Final Map of Tract No. 5272, Phase 4 of Vesting Tentative Map No. 5205/UGM Date of Document: October 16, 2006 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on December 30, 2004, in the office of the Fresno County Recorder, as Document No. 2004-0291149 of which the Deed of Trust in, by and between Copper River Development Company, Inc., a California Corporation, as Trustor, Financial Title Company, as Trustee and Housing Capital Company, a Minnesota partnership, 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 the Final Map of Tract No. 5272, Phase 4 of Vesting Tentative Map No. 5205/UGM. Dated: October 1 7 , 2006 BENEFICIARY Housing Capital Company, a Minnesota partnership, By: ✓` W Thomas G. Walker Vice President (Beneficiary to print4ype document information, Name, Title and attach Notary Acknowledgment) STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO ) On October 17, 2006, before me, Jean Ishimoto, a Notary Public, personally appeared Thomas G. Walker, ❑ Personally known to me Proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. PsEP,°FrtiF JEAN ISNIMOTO COMM.#1604033 cn IS yvtz "D � s o NOTARY PUBLIC CALIFORNIA FRESNO COUNTY JeAlt Ishimoto, Notary Public PgCIFOPNP My Comm Exp.Sept.3,2008 Title or Type of Document: Subordination Date of Document: October 17, 2006 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on August 23, 2006, in the office of the Fresno County Recorder, as Document No. 2006-0176118 of which the Deed of Trust in, by and between Copper River Ranch Villages, LLC, a California limited liability company, as Trustor, Financial Title Company, a California corporation, as Trustee and Copper River Development Company, Inc., a California 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 the Final Map of Tract No. 5272, Phase 4 of Vesting Tentative Map No. 5205/UGM. Dated: October , 2006 BENEFICIARY Copper Riv Development Company, Inc., a Califor ' c poration B Dona d R st Vice President (Beneficiary to print4ype document information, Name, Title and attach Notary Acknowledgment) STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On October 16, 2006, before me, Jean Ishimoto, Notary Public, personally appeared Gary McDonald * Personally known to me ❑ Proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. JEAN ISHIMOTO P,SEP OF`hF n COMM.#1604033 \ m NOTARY f!/ PUCORNIAcn_.{n�`-• JI � � *� FRESNOO COUNTY +' C(IFOPN' My Comm Exp.Sept.3,2009 JeA Ishimoto, Notary Public Title or Type of Document: Subordination Date of Document: October 16, 2006 CLERK'S CERTIFICATION State of California) County of Fresno) On November 1. 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared, Nick P. Yovino. Planning and Development Director and Michael T. Kirn, P.E. Assistant Public Works Director, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to be 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. REBECCA E. KLISCH CITY CLERK, CMC 0 By Deputy EXHIBIT "A" DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR TRACT 5272 Project Zoning: R-1/UGM I. WATER CONNECTION CHARGES A. Service Connections (flat rate cost basis only) _-_ inch Services @ $_/Service = $ N/A B. Meters (flat rate cost basis only) 25 - 1.5 inch Meters @ $ 455.00/Meter = $ 11,375.00 C. UGM Transmission Grid Main (TGM) Charge UGM Reimbursement Area: A 12.6549 Gross Acres @ $643.00 /ac. _ $ 8,137.10 Estimated Net Deferred UGM TGM Charge = $ 8,137.10 D. Transmission Grid Main Bond Debt Service Charge 12.6549 Gross Acres @ $243.00/ac. _ $ 3,075.14 Estimated Net Deferred TGM Bond Debt Service Charge = $ 3,075.14 E. Frontage Fee 0 Lineal Feet @ $ 6.50/LF = $ 0.00 F. 1994 Bond Debt Service Fee 101 1994 Bond Debt Service Area. 25 Living Units @ $ 895.00/ Unit = $ 22,375.00 Estimated Deferred 1994 Bond Debt Service Fee = $ 22,375.00 G. 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 II. SEWER CONNECTION CHARGES & SEWER RELATED CHARGES A. UGM Oversize Sewer Charge UGM Reimbursement Area: 43 73,200 Square Feet @ $0.05 / Sq. Ft. _ $ 3.660.00 Estimated Deferred UGM Oversize Sewer Charge = $ 3,660.00 B. Lateral Sewer Charge _I Square Feet @ $0.10 / Sq. Ft. _ $ 0.00 C. Housebranch Sewer Charge = $ N/A D. Millbrook Sewer Overlay Net Adj Gross Ac @ $ /NAA = $ N/A Units @ $ /Unit = $ 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. CITYWIDE IMPACT FEES A. Fire Facilities Impact Fee 25 Living Units @ $539.00/ Unit = $ 13,475.00 Estimated Fire Facilities Charge = $ 13,475.00 B. Park Facility Impact Fee 25 Living Units @ $3398.00/ Unit = $ 84,950.00 Estimated Park Facility Charge = $ 84,950.00 C. Regional Street Impact Fee 25 Living Units @ $549.00/ Unit = $ 13.725.00 Estimated Regional Street Charge = $ 13,725.00 D. Local Major Regional Street Impact Fee 25 Living Units @ $1552.00/ Unit = $ 38,050.00 Estimated Local Major Regional Street Charge = $ 38.050.00 E. Special Interior Collector Street Impact Fee for Copper River Ranch 25 Living Units @ $4685.00/ Unit = $117,125.00 Estimated Special Interior Collector Street Charge = $117,125.00 F. Police Facilities Impact Fee 25 Living Units @ $624.00/ Unit = $ 15,600.00 Estimated Police Facilities Charge = $ 15,600.00 G. Traffic Signal Charge 25 Living Units @ $ 414.69/ Unit = $ 10,367.25 Estimated Deferred Traffic Signal Charge = $ 10,367.25 H. The following charges are not deferrable under the terms of this covenant: 1. Major Street rights of way acquisition and construction 2. Local Street rights of way acquisition and construction 3. Major Street Bridge rights of way acquisition and construction document:\wp51\deterral\t5272exhibitA October 9,2006 I W O O O O O O O O O O O O O O O O O O O O O O o O O � O O O O O O O O O O O O O O OU ._ N = O 7 .4 q d T V 4q V 4 d T' d � 't t tI-T Iq v Iq It 't O 'CSE o N N N N N N N N N N N N N N N N N N N N N N N N N 'aCS Q 64 6q D V3A o & 609 609 609 609 0 W 609 W W o o 6q 64 & 609 bq o D 609 N O O O O O O O O O O O O O O O O O O O O O O O O O t6 (n 7 (n0 0 0 0 0 0 0 0 0 0(O (n (O (n (O (n (n (n (n (O (n (O (n (n O 7 00 CO CO OD co c0 00 00 00 co CO CO co co CO CO CO CO CO Co co N CC) Co co p, U E w (D (D (o (o (o (o (o CO 0 (D (o (o (D 0 (D (o (0 0 0 (D (o (D (D 0 d9 6q &9� 6q Go?. 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