HomeMy WebLinkAboutT-5281 - Agreement/Covenant - 3/15/2005 (3) .2
WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street 0311113005~2005005503
Fresno, CA 93721-3603
NO FEE-Government Code 6103
CITY of FRESNO
Public Utilities Department
P.W. File No. 10654
JAR 3179 North Fowler Avenue (T-5281, Site Address)
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a 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. 5281, PHASE 3
OF VESTING TENTATIVE MAP NO. 5189
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5281
Page 2
RECITALS
WHEREAS, McMillin Colby Park, LLC, a Delaware 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 43 inclusive of T ct No. 5281 according to the map thereof
recorded on �1�1� l ' 20 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. 5189 (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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5281
Page 3
Sewer as an alternative to the Covenantor's responsibility to construct separate sanitary sewer
facilities to provide sanitary sewer services to the Project; and
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 thatthe 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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5281
Page 4
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 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
.F 1,
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5281
Page 5
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
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
Goverment 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,
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5281
Page 6
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
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. 5281
Page 7
DATED: Mq 2:f if 2O4
CITY OF FRESNO, COVENANTOR
a Municipal Corporation McMillin Colby Park, LLC,
a Delaware Limited Liability Company
By By: McMillin Management Services, L.P.,
Mg irtityk AcIntyre, 4rector a California Limited Partnership,
Public Utilities Department as General Partner
By: Corky McMillin Construction Services, Inc.,
a California Corporation,
as General Partner
APPROVED AS TO FORM:
HILDA CANTO-MONTOY By:
City Attorney '0s h Aldalea ecutive Vice President
By By:
Deputy Jim W Robinson, Vice President
(Attach Notary Acknowledgment)
3B+AK 01-24-05
* * * * * * * * * * * * * * *
STATE OF CALIFORNIA)
ss.
COUNTY OF TULARE )
On February 1, 2005, before me, the undersigned, a notary public for the state,
personally appeared JOSEPH A. LEAL and JIM W. ROBINSON 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 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), or the entity behalf of which the person(s) acted, executed the
instrument.
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WITNESS my hand and official seal L.bSTURGEON
MM. 1454944
PUBLIC-CALIFS"AM COY
Dee.a6.20aT
NOTARY S GNATU E SEAL
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO )
On March 3,2005, 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
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Deputy March 3,2005(4:06pm)
Tract No. 5281-UGM
P.W. File No. 10654
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed
of Trust recorded on February 5, 2004, in the office of the Fresno County Recorder, as
Document No. 2004-0026967 and that certain Deed of Trust recorded on July 2, 2004, in
the office of the Fresno County Recorder, as Document No. 2004-0146503, of which the
Deed of Trust in by and between MCMILLIN COLBY PARK,LLC, a Delaware Limited
Liability Company, as Trustor, First American Title Insurance Company, as Trustee and
INDYMAC BANK, F.S.B.,Beneficiary, hereby expressly subordinates said Deed of
Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting
Land Development for Sanitary Sewer Capacity in the Fowler Avenue Truck Sewer and
Deferring Payment of interim Fee Surety to the Time of Issuance of Certificate of
Occupancy and Creation of Lien for Tract No. 5281.
DATE: - 7. ZcSp
BENEFICIARY:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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Name and Title of Officer(e.g.,"Jane Doe,Notary Public") //
personally appeared Le5-4 2 Okuln�4 /4m-b —_>_/An>q S, Cbe&
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E. FLORES subscribed to the within instrument and
Commission# 1402748 acknowledged to me that he/she/they executed
Notary Public - California the same in _bfs4ieratheir authorized
Los Angeles County capacity(ies), and that by fa+efher/their
My Comm.Expires Feb 28,2007 signature(s) on the instrument the person(s), or
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WITNESSmy I nd and official seal.
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Sig a of Notary Public
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❑ Ot
Signer Is Representing:
0 1999 National Notary Aeeocla im•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nationainotary.org Prod.No.5907 Reorder:Call Tolf-Free 1.804876-8827