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Home My WebLink AboutT-5815 - Agreement/Covenant - 3/22/2013 (3) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 �3/z��Z013,10130041194 NO FEE - Government Code 6103 0 CITY of FRESNO Z Public Utilities Department 0 [3 P.W. File No. 11164 W U! a w J CL 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. 58155 PHASE 1 OF VESTING TENTATIVE MAP NO. 5447 Statement of Covenants Fowler Trunk Sewer Interim Fee Surety Tract No. 5815 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 99, inclusive, of the Final Map of Tract No. 5815 according to the map thereof recorded on lWarch o2 c) , 20J3 in Volume 12,21 of Plats at Page(s) 8N Art, R `) 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 Statement of Covenants Fowler Trunk Sewer Interim Fee Surety Tract No. 5815 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. 5815 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. 5815 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. 5815 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. 5815 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. 5815 Page 8 DATED: �GH 1 CITY OF FRESNO, COVENANTOR a Municipal Corporation PLEASANT VALLEY INVESTMENTS, LC, Public Utilities Department A Nevada Limited Liability Company Patrick Wiemiller, Director By: By: _ Robert N. Andersen, Assistant Director Chris -ns, Authorized Agent APPROVED AS TO FORM: -dAM�E-S-G'-SA4G I4E-Z-- -Etty-AReriey-- FRANCINE M KAN Interim C't A o By: Talia K ri-Barbick Deputy City Attorney Date: 7. Z� (Attach Notary Acknowledgment) CLERK'S CERTIFICATION State of California) County of Fresno ) On March 4, 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 �� 0F FRF��tl By uty P ti r ?4 rED 4CS. i CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT State of California ) )ss. County of FRESNO ) On November 14 2012 before me, JAMES SWEETEN, Notary Public, personally appeared CHRIS WILLIAMS, 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 instrurnent the person(s), or -the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY#i PERJURY under the laws of the State of California that the foregoing paragrap . is :r` e and correct. WITNESS my hand and official seal. JAMES SWEETEN COMM. #1947126 Signature (Seal) 5 j NptaryPublic-Calh7mia FRESNO COUNTY ' My Comm.Exp.AUG 2.6,PA'5 2008ack.doc