HomeMy WebLinkAboutT-5447 - Agreement/Covenant - 5/8/2013 (3) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
05/03/2013,20130064129
LL NO FEE - Government Code 6103
Z
D
L) CITY of FRESNO
Public Utilities Department
LU
P.W. File No. 11165
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 THE FINAL MAP OF
TRACT NO. 54479
PHASE 2 OF VESTING TENTATIVE MAP NO. 5447
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
Page 2
RECITALS
WHEREAS, PLEASANT VALLEY INVESTMENTS, LC, A Nevada 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 75, inclusive, of the Final Map of Tract No. 5447 according
to the map thereof recorded on IOQV 3 , 2013in
Volume Y12 of Plats at Page's) 97-
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. 5447 (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
p . i
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
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 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 $574 per living unit or living unit equivalent (as such units are defined in
Chapter 6, Article 3 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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
Page 4
building on the Subject Property in the manner established by the Development and Resource
Management Department 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 Development and Resource Management Department
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.
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
Page 5
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
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. If either party is required to commence any proceeding or legal action to enforce or
interpret any term or condition of this Statement of Covenant, the prevailing party in such
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
Page 6
proceeding or action shall be entitled to recover from the other party its reasonable attorney's
fees and legal expenses. For the purposes of this Statement of Covenant, "attorneys' fees"
and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys,
consultants fees and expenses, expert witness fees and expenses, and all other expenses
incurred by the prevailing party's attorneys in the course of the representation of the prevailing
party in anticipation of and/or during the course of litigation, whether or not otherwise
recoverable as "attorneys' fees" or as "costs" under California law, and the same may be sought
and awarded in accordance with California procedure as pertaining to an award of contractual
attorneys' fees.
12. The waiver by either party of a breach by the other of any provision of this
Statement of Covenant shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Statement of Covenant. No
provisions of this Statement of Covenant may be waived unless in writing and signed by all
parties to this Covenant. Waiver of any one provision herein shall not be deemed to be a
waiver of any other provision herein.
13. 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.
14. 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.
15. The provisions of this Statement shall be deemed independent and severable and
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5447
Page 7
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. 5447
Page 8
DATED: APRIL- //4 a013
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
PLEASANT VALLEY IIVVESTIVIENTS, LC,
Public Utilities Department A Nevada Limited Liability Company
Patrick Wiemiller, Director
By: By:
Robert N. Andersen, Assistant Director Chris ' ams, Authorized Agent
APPROVED AS TO FORM:
fRANf£jp &fo-.-KANNE- DOUGLAS T. SLOAN
��4:4 City Attorney
By: l
Talia Kolluri-Barbick
Deputy City Attorney
Date:
(Attach Notary Acknowledgment)
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On April 12, 2013, before me, Cindy Bruer, Deputy City Clerk, personally
appeared Robert N. Andersen, Assistant Director of the Department of Public
Utilities of the City of Fresno who 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), acted, executed the instrument.
I certify under PENALTY OR PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
YVONNE SPENCE. CMC
CITY CLERK, City of Fresno
ty pF Flees
By
D uty F
a ;
o 01,
�{rco att
CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
State of California )
)ss.
County of FRESNO )
On !3` before me, JAMES SWEETEN, Notary Public, personally
appeared �t G�iQ.
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is e and co,�rect. WITNESS my hand and official seal.
Signature (Seal) � nEs sweErenr
r •' COMM. *1947'125 m
W ' Notary Puhlk{'akbmia
' � FR�SND COLIH7Y -'
- A9y Comm.F p,AUG 28,2pl5
2008ack doc