HomeMy WebLinkAboutT-5466 - Agreement/Covenant - 8/18/2015 (2) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
08/17/2015120150104303
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NO FEE - Government Code 6103
a CITY OF FRESNO
� Development& Resource Management Department
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STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT DEFERRING CERTAIN SEWER CONNECTION
CHARGES, WATER CONNECTION CHARGES, URBAN GROWTH
MANAGEMENT FEES, CITY-WIDE FEES AND DEVELOPMENT
FEES TO THE TIME OF ISSUANCE OF CERTIFICATE OF
OCCUPANCY AND CREATION OF LIEN FOR THE FINAL MAP
OF TRACT NO. 5466
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 2
RECITALS
WHEREAS, KB HOME CENTRAL VALLEY 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:
Lots 1 through 40, inclusive, of the Final Map of Tract No. 5466 according to
the map thereof recorded on JjnviSf 17TQ/,S=, in Volume hof
Plats at Page(s) Ztbru 'J 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. 5466 (hereinafter,
"Project"), require the payment of applicable sewer connection charges,water connection charges,
traffic signal charge, Urban Growth Management fees, city-wide 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
WHEREAS, said 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
WHEREAS, the Covenantor, as a condition of issuance of building permit(s)forthe Project
pursuant to the provisions of the latest edition of the Uniform Building Code as adopted by the
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 3
State of California and as amended by the City of Fresno ("City"), 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 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 City's Development& Resource Management
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 Development&Resource Management 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
Development & Resource Management 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
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 4
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.
a. 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 of
Covenants except as set forth in subsection "b", below. 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.
b. Covenantor may receive designated fee credits from the City as offsets
toward a UGM or development impact fee for construction of certain required infrastructure
improvements either as a part of this Statement of Covenants or at some future date.
Covenantor acknowledges and agrees any such fee credits are provided contingent upon
the City accepting required infrastructure improvements completely installed by Covenantor.
Until then, and notwithstanding any other provision, Covenantor expressly agrees
Covenantor has no right to any portion of any fee credit and the Director of Public Works for
the City, in the Director's sole discretion, may unilaterally amend this Statement of
Covenant effective upon mailed notice to Covenantor to adjust(including adding, reducing
or removing) credits at any time prior to acceptance of all required infrastructure
improvements by City. Upon adjustment, Covenantor shall pay in full any UGM or
development impact fees, due from modification of the fee credit, prior to approval of the
final map or as may be deferred by this Statement of Covenant or applicable fee deferral
covenant. If the final map has already been approved and there is no applicable fee
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 5
deferral covenant, all such fees shall be promptly paid by Covenantor. The City may
enforce recovery of such fees in any manner available at law or in equity, including but not
limited to private foreclosure and sale of the property in the manner provided in Section
2924 of the California Civil Code or successor statute.
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 Development & Resource Management 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 Statement of
Covenants violate Government Code Section 65961.
9. Each of the covenants, conditions, and restrictions contained in this Statement of
Covenants 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 of Covenants.
10. The conditions of this Statement of Covenants are intended to benefit the public and
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 6
public properties. Accordingly, the City of Fresno shall have the right to enforce this Statement of
Covenants by any legal or equitable means. All obligations of the Covenantor in this Statement of
Covenants 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 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 of Covenants,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.
14. The conditions and obligations of this Statement of Covenants shall remain in full
force and effect until such time as the Fee obligations for all lots, parcels, units or buildings of the
Statement of Covenants
Fee Deferral
Final Map of Tract No. 5466
Page 7
Project on the Subject Property are fully satisfied.
15. The provisions of this Statement of Covenants 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 of Covenants so requires, in interpreting this Statement of Covenants, 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. 5466
Page 8
DATED: [} Y I 1 S
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
KB HOME CENTRAL VALLEY INC.,
Development & Resource Management A California Corporation
Department
Jennifer K. Clark, Director
By: By: r X
Jennife . Clark, Director Leo Pantoja, D ctQr of Forward Planning
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
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By: _
Mar aterman-Doidge
puty City Attorney
Date: �11 t �
(Attach Notary Acknowledgment)
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A notary public or other officer completing this certificate verifies oniy the CALIFORNIA A L L-PURPOSE
identity of the individual who signed the document to which this certificate -
is attached,and not the truthfulness,accuracy,or validity of that docurnent.
CERTIFICATE O F
State of California ) ACKNOWLEDGMENT -
County of -y—L )
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(here insert name and title of the officer)
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personally appeared
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.
certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and correct. r
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WITNESS my hand and official seal. n�•, .r.nvtcaY.�t+oue•catlFnwA
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CLERK'S CERTIFICATION
State of California }
County of Fresno )
On July 17, 2015 before me, Cindy J. Bruer, Deputy City Clerk, personally appeared, Jennifer
K. Clark Director of the Development and Resource Management Department 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 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 true and correct.
WITNESS my hand and official seal
YVONNE SPENCE, CMC
City Clerk, City of Fresno
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EXHIBIT "A"
DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR TRACT 5466
Project Zoning: R-1
I. WATER CONNECTION CHARGES
A. Service Connections (flat rate cost basis only)
`-_ inch Services @ $_/Service = $ N/A
B. Meters (flat rate cost basis only)
38 - 1.0 inch Meters @ $ 330.00 /Meter = $ 12,540.00
C. Transmission Grid Main (TGM) Charge
13.1147 Gross Acres @ $643.00 /ac. _ $_ 8,432.75
Less amount to be paid for E.I.B.P.* _ $ 410.75
Estimated Net Deferred UGM TGM Charge = $ 8,022.00
D. Transmission Grid Main Bond Debt Service Charge
13.1147 Gross Acres @ $243.00 /ac. _ $ 3,186.87
Less amount to be paid for E.I.B.P.* _ $ 155.23
Estimated Net Deferred TGM Bond Debt Service Charge = $ 3,031.64
E. Frontage Fee
607 Lineal Feet @ $ 6.50 /LF = $ 3,945.50
Less amount to be paid for E.I.B.P.* = $ 192.18
Estimated Net Deferred Frontage Fee = $ 3,753.32
F. 1994 Bond Debt Service Fee
501 1994 Bond Debt Service Area.
40 Living Units @ $ 0.00 / Unit = $ N/A
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. Oversize Sewer Charge
60,700 Square Feet @ $0.05 / Sq. Ft. = $ 3,035.00
Less amount to be paid for E.I.B.P.* = $ 147.84
Estimated Deferred Oversize Sewer Charge = $ 2,887.16
B. Lateral Sewer Charge
60,700 Square Feet @ $0.10 / Sq. Ft. = $ 6,070.00
Less amount to be paid for E.I.B.P.* = $ 295.67
Estimated Deferred Lateral Sewer Charge = $ 5,774.33
C. 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. Traffic Signal Charge
40 Living Units @ $ 450.94 / Unit = $ 18,037.60
Less amount to be paid for E.I.B.P.* _ $ 901.88
Estimated Deferred Traffic Signal Charge = $ 17,135.72
B. The following charges are not deferrable under the terms of this covenant:
1. Citywide Fire Facilities Impact Fee (Due @ Occupancy-Reso. 05-429)
2. Citywide Park Facility Impact Fee (Due @ Occupancy- Reso. 05-427)
3. Citywide Police Facilities Impact Fee (Due @ Occupancy- Reso. 05-428)
4. Citywide Regional Street Impact Fee (Due @ Building Permit- Reso. 07-291)
5. Citywide New Growth Major Street Impact Fee (Due @ Building Permit- Reso. 07-291)
document%wp5l%dafe"W%15666extpEnA June 17,2015
EXHIBIT "B" -- PRORATED FEE OBLIGATIONS
Tract No. 5466 Sewer, Water, Citywide Fees DUE / DEFERRED BY COVENANT
Water Water Water Water TGM Sewer Sewer Sewer Traffic
Lot Lot Meter Frontage T G M. Bond Debt Lateral Oversize Wastewater Signal
No. Area Amount Amount Amount Amount Amount Amount Amount Amount
Due Due Due Due Due Due Due Due
1 8827 $330.00 $113.10 $241.70 $91.34 $174.00 $87.00 $2,119.00 $450.94
2 7379 $330.00 $94.55 $202.09 $76.37 $145.46 $72.73 $2,119.00 $450.94
3 7189 $330.00 $92.11 $196.89 $74.41 $141.71 $70.86 $2,119.00 $450.94
4 5896 $330.00 $75.55 $161.46 $61.02 $116.23 $58.11 $2,119.00 $450.94
5 5906 $330.00 $75.67 1 $161.71 $61.11 $116.42 $58.21 $2,119.00 $450.94
6 6016 $330.00 $77.08 $164.74 $62.26 $118.59 $59.30 $2,119.00 $450.94
7 6044 $330.00 $77.44 $165.51 $62.55 $119.14 $59.57 $2,119.00 $450.94
8 6090 $330.00 $78.03 $166.79 $63.03 $120.05 $60.02 $2,119.00 $450.94
9 1 6151 $330.00 $78.81 $168.47 $63.67 $121.25 $60.63 $2,119.00 $450.94
10 6140 $330.00 $78.67 $168.14 $63.54 $121.04 $60.52 $2,119.00 $450.94
11 10983 $330.00 $140.73 $300.80 $113.68 $216.50 $108.25 $2,119.00 $450.94
12 12095 $330.00 $154.98 $331.21 $125.17 $238.42 $119.21 $2,119.00 $450.94
13 7022 $330.00 $89.97 $192.32 $72.68 $138.42 $69.21 $2,119.00 $450.94
14 6309 $330.00 $80.84 $172.77 $65.29 $124.37 $62.18 $2,119.00 $450.94
15 6352 $330.00 $81.39 $173.93 $65.73 $125.21 $62.61 $2,119.00 $450.94
16 7962 $330.00 $102.02 $218.04 $82.40 $156.95 $78.48 $2.119.00 $450.94
17 6983 $330.00 $89.47 $191.23 $72.27 $137.65 $68.83 $2,119.00 $450.94
18 6098 $330.00 $78.13 $166.99 $63.11 $120.21 1 $60.10 $2,119.00 $450.94
19 9166 $330.00 $117.45 $251.03 $94.87 $180.69 $90.34 $2,119.00 $450.94
20 9100 $330.00 $116.60 $249.23 $94.19 $179.38 $89.69 $2,119.00 $450.94
21 7023 $330.00 $89.99 $192.32 $72.68 $138.44 $69.22 $2,119.00 $450.94
22 6000 $330.00 $76.88 $164.29 $62.09 $118.28 $59.14 $2,119.00 $450.94
23 7496 $330.00 $96.05 $205.31 $77.59 $147.77 $73.88 $2,119.00 $450.94
24 9935 $330.00 $127.30 $272.05 $102.81 $195.84 $97.92 $2,119.00 $450.94
25 8565 $330.00 $109.74 $234.57 $88.65 $168.84 $84.42 $2,119.00 $450.94
26 7025 $330.00 $90.01 1 $192.39 $72.71 $138.48 $69.24 $2,119.00 $450.94
27 7082 $330.00 $90.74 1 $193.93 $73.29 $139.60 $69.80 $2,119.00 $450.94
28 7770 $330.00 $99.56 $212.77 $80.41 $153.17 $76.58 $2,119.00 $450.94
29 6924 $330.00 $88.72 $189.62 $71.66 $136.49 $68.24 $2,119.00 $450.94
30 7018 $330.00 $89.92 $192.19 $72.63 $138.34 $69.17 $2,119.00 $450.94
31 6367 paid paid paid paid paid paid paid paid
32 8632 paid paid paid paid paid paid paid paid
33 11444 $330.00 $146.63 $313.40 $118.44 $225.59 $112.80 $2,119.00 $450.94
34 7644 $330.00 $97.94 $209.36 $79.12 $150.68 $75.34 $2,119.00 $450.94
35 16503 $330.00 $211.46 $451.96 $170.80 $325.32 $162.66 $2,119.00 $450.94
36 8622 $330.00 $110.48 $236.11 $89.23 $169.96 $84.98 $2,119.00 $450.94
37 7024 $330.00 $90.00 $192.39 $72.71 $138.46 $69.23 $2,119.00 $450.94
38 6471 $330.00 $82.91 $177.21 $66.97 $127.56 $63.78 $2,119.00 $450.94
ff
6243 $330.00 $79.99 $170.97 $64.61 $123.07 $61.53 $2,119.00 $450.94
6429 $330.00 $82.38 $176.05 $66.53 $126.73 $63.37 $2,119.00 $450.94
document:\q\print\h 17-Jun-15