HomeMy WebLinkAboutT-5717 - Agreement/Covenant - 4/22/2008 (2) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
p Fresno, CA 93721-3603
W 04/21/2008120080057532
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CITY of FRESNO
Public Utilities Department
P.W. File No. 11280
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
FINAL MAP OF TRACT NO. 5717,
PHASE 1 OF VESTING TENTATIVE MAP NO. 5717/UGM
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5717
Page 2
RECITALS
WHEREAS, LOCANS INVESTMENTS, 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 9, inclusive, of Tract Map No. 5717 according
to the map thereof recorded on App,21 2002
in Volume 80 of Plats at Page(s) �S& 1 -9'7
,
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. 5717 (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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5717
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, 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)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 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. The Interim Fee Surety for the Fowler Avenue Trunk Sewer is estimated by the
Public Utilities Director to be more particularly identified in the attached Exhibit"A" per living unit
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5717
Page 4
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 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 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 Public
Utilities 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 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.
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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5717
Page 5
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 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.
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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 5717
Page 6
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 or interpret the provisions of this
covenant, the parties agree that the prevailing party shall be paid reasonable attorney's fees,
costs and litigation expenses.
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. 5717
Page 7
DATED:
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
Public Utilities Department LOCANS INVESTMENTS, LLC.,
Rene Ramirez, Director California Limi d Li ility Company
By:
Robert N. Andersen, Assistant Director Farid Assemi, President
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: (I "
John W. Fox
Deputy City Attorney
Date: 3 �lo�d1DDA
(Attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of i ,-CSrn c7
On I"t"ty VZUUZ� before me, �V`L-5-Hy-a- . L.��Yle_Z 6k4eq &"'0-
Date HelfeInsert Nafne and TitIt of the Officer
personally appeared Ir—a Pt SSreit- f
Name(s)of igner(sr-
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
CRISTINA G. A � capacity(ies), and that by his/her/their signature(s) on the
Commission . 1552075 [ instrument the person(s), or the entity upon behalf of
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Z -„ Notary Public-California ; which the person(s) acted, executed the instrument.
yi:a7 Fresno County
IvlyComm.Expires Feb 12,2009 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.
Signature�t�(/J
Place Notary Seal Above SijnalLFr6 of Notary Pulblic
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and could prevent fraudulent removal and reattachment of this form to another document.
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Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual �] Individual
❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s):
LJ Partner—❑ Limited ❑ General _ _ _ ❑ Partner—❑ Limited ❑ General
❑ Attorney in Fact • ❑Attorney in Fact •
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Ll Other: El Other:
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CITY CLERK'S CERTIFICATION
State of California )
County of Fresno )
On April 10, 2008 before me, Elvia Sommerville, Deputy City Clerk, personally,
Robert N. Andersen, Assistant Public Utilities Director, 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 PREJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
REBECCA E. KLISCH, CMC
City Clerk, City of Fresno
B
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Deputy
EXHIBIT "A"
DEFERRED FOWLER TRUNK INTERIM FEE OBLIGATION FOR TRACT 5717
Project Zoning: C-M/UGM
I. FOWLER TRUNK SEWER INTERIM FEE SURETY
215 Living Unit Equivalents @ $ 574.00/ Unit = $123,410.00
Estimated Deferred Fowler Trunk Sewer Interim Fee Surety = $123,410.00
document:\wp51\deferral\t5717exhibitA April 2,2008
EXHIBIT "B" -- PRORATED FEE OBLIGATIONS
r
i
T-5717 Fowler Trunk Sewer Interim Fee Surety DUE-DEFERRED BY COVENANT
Fowler
Lot Lot Fee Surety
No. Area Amount
Due
1 60054 $4,602.10
2 107737 $8,256.18
3 304922 $23,367.00
4 19006 $1,456.48
5 98758 $7,568.09
6 110584 $8,474.35
7 236298 $18,108.16
8 292918 $22,447.10
9 380132 $29,130.54
document: \q\print\h 02-Apr-08