HomeMy WebLinkAboutT-5312 - Agreement/Covenant - 6/20/2007 (4) WHEN RECORDED MAIL TO:
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City Clerk FRESNO County Recorder
26 City of Fresno Robert C. Werner
Fresno,res Fresno Street 721-3603 DOC— 2007-0092172
CA 93
Acct 2-Chicago Title Company
Wednesday, MAY 09, 2007 08:00:00
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RGR/R4/1-9
NO FEE -Government Code 6103
CITY of FRESNO
Public Utilities Department
P.W. File No. 10905
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. 5312/UGM
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5312/UGM
Page 2
RECITALS
WHEREAS, BN5312 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 95, inclusive, of Tract No. 5312/UGM according to the map
thereof, recorded on _ Allaw 9 20A7_
in Volume , of Plats at Page(s) _may f
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. 5312/UGM
(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
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5312/UGM
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)forthe 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
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5312/UGM
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" maybe 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
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.
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5312/UGM
Page 5
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
until such time as the fee obligations for all lots, parcels, units or buildings of the Project on the
Subject Property are fully satisfied.
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Statement of Covenants
Fowler Trunk Sewer.lnterim Fee Surety
Tract No. 5312/UGM
Page 6
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.
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Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5312/UGM
Page 7
DATED: 04 �24�b-
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
BN 5312 L. P.
a California Limited Partnership
By: Bonadelle Homes, Inc.
a California C oration
as Gener art er
By: //�l By:
Rene Ramirez, Director Joh onadelle, President
Public Utilities Department
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APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
Bye
Deputy
(Attach Notary Acknowledgment)
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STATE OF CALIFORNIA,
COUNTY OF Fresno
On March 13, 2007 , before me, Anna M. Renna ,
a Notary Public,personally appeared John A. Bonadelle
personally known to me to be the
person(s)whose name( is/wg subscribed to the within instrument and acknowledged to
me that he%haAku c executed the same in hisAxxAi6r authorized capacity(im), and that
by his/MMMT signature(§) on the instrument the person(),or the entity upon behalf of
which the person" acted, executed the instrument.
(Notary seal or stamp)
WITNESS my hand and official seal.
Signature
My commission expires August 30, 2007HIENNIqqS
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STATE OF CALIFORNIA,
COUNTY OF
On , before me, ,
a Notary Public, personally appeared
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) acted, executed the instrument.
(Notary seal or stamp)
WITNESS my hand and official seal.
Signature
My commission expires
b-.
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO)
On April 25, 2007, before me, Elvia Sommerville Deputy City Clerk, City of Fresno,
personally appeared, Robert N. Andersen, Assistant Public Utilities 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 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.
ITNESS my hand and official seal.
REBECCA E. KLISCH
CITY CLERK, CMC
By
Deputy