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HomeMy WebLinkAboutT-5956 - Agreement/Covenant - 8/26/2010 (3) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 0812612010,20100110151 NO FEE - Government Code 6103 CITY OF FRESNO Public Works Department LL APN: 466-192-01 and 16 Z O V LU a LUSTATEMENT OF COVENANTS AFFECTING LAND CL DEVELOPMENT IN THE DOWNTOWN PRIORITY AREAS AND CREATING A LIEN TO SECURE PAYMENT OF CERTAIN DEFERRED DEVELOPMENT IMPACT FEES FOR THE FULTON VILLAGE PROJECT Statement of Covenants Downtown Priority Area Fee Deferral Fulton Village Page 2 RECITALS WHEREAS, FFDA PROPERTIES, 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: Lot 1 of the Final Map of Tract No. 5956 according to the map thereof filed in Volume of Plats at Page(s) — 5 t t"v� , Fresno County Records; and WHEREAS, Covenantor herebywarrants that anyand 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 City Council of the City of Fresno has adopted various development impact fees to mitigate the impacts of new development on City infrastructure, including Citywide Park Facilities Impact Fees, Citywide Fire Facility Impact Fees, Citywide Police Facility Impact Fees, Citywide Major Street Impact Fees, and Citywide Traffic Signal Mitigation Impact Fees, hereinafter collectively, "Development Fees"; and WHEREAS, due to the current economic recession and the City's desire to provide incentives for downtown revitalization, the City Council adopted Resolution No. 2009-265 to defer payment of the Development Fees in the Downtown Priority Areas 0, 1, or 2, ("Priority Areas") for those development projects with complete entitlement applications filed prior to June 30, 2011 and that obtain building permits to construct the development projects between December 17, 2009 and June 30, 2012. Statement of Covenants Downtown Priority Area Fee Deferral Fulton Village Page 3 WHEREAS, the Development Fees will be payable in four equal annual installments, each amounting to 25 percent of the total Development Fees, at three, four, five and six years from the date the City issues the Certificate of Occupancy. WHEREAS, as a condition to defer time of payment of the Development Fees as provided under Resolution. No. 2009-265,the Covenantor shall be required to execute this Statement priorto and as a condition of issuance of a building permit. COVENANTS, CONDITIONS, AND RESTRICTIONS NOW, THEREFORE, in consideration of the deferral of Development Fees, the Covenantor hereby covenants as follows: 1. The Development Fees will be payable in four equal annual installments, each amounting to 25 percent of the total Development Fees, at three, four, five and six years from the date the City issues the Certificate of Occupancy, more particularly identified in the attached Exhibit "A." The amount of the Development Fees due and payable shall be based upon the fee schedules and amounts in effect at the time the Development Fees would have been due and payable in the absence of this Covenant, as specified and enumerated in Exhibit "A." 2. The Covenantor agrees to have the City record this Covenant in the office of the Fresno County Recorder, and from the date of recordation, shall constitute a lien for the payment of the Development Fees. The lien created herein shall not be subordinated. 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. 3. Payment of any Development Fees as specified and enumerated in Exhibit "A" shall be deemed a debt due and owing to the City of Fresno at such time which debt shall only be deemed Statement of Covenants Downtown Priority Area Fee Deferral Fulton Village Page 4 satisfied and discharged upon payment in full to the City of Fresno. 4. Notwithstanding the above, the Development Fees shall be due and payable in full prior to any sale or transfer of title to the Subject Property or any portion thereof. 5. Covenantor hereby waives any claim that the provisions of this Covenant violates Government Code Section 65961 or the Mitigation Fee Act(Gov. Code §§ 66000 et seq.) 6. 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. 7. This Statement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating this Statement shall be held exclusively in a state court in the County of Fresno. In the event that litigation is instituted to enforce or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 8. The Public Works Director or City Engineer shall record a release of the obligation upon proof that the Covenantor has fully complied with the terms of the Covenant and paid the Development Fees in full as specified and set forth in Exhibit "A." 9. This Statement constitutes the complete, entire, exclusive and final agreement and understanding between the parties as to the subject matter herein,superseding all negotiations, prior discussions, and preliminary agreements or contemporaneous understandings, written or oral. 10. This Statement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto. Statement of Covenants Downtown Priority Area Fee Deferral Fulton Village Page 5 11. 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 Downtown Priority Area Fee Deferral Fulton Village Page 6 DATED: A 0 6 0 Vr /9, 20 id CITY OF FRESNO, COVENANTOR a Municipal Corporation FFDA PROPERTIES, LLC a California Limited Liability Company PATRICK N. WIEMILLER Public Works Director By: By: FSE- Darius Asserrii Ass; s;Pesti., WOF148 Vice-President (Attach Notary Acknowledgment) APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney ��� By: Shan a , De uty City Attorney v Date: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of l— On 5-)-No before me, 1M 10+rjV-jA �U)ulvir, , Date //�� Here Insert Name and Title of the Officer personally appeared ®G j u C.JCJS,e m 1 Name(s)o1 Signer(s) e 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 fits/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 AMBER MARTINEZ which the person(s) acted, executed the instrument. Commission#r 1833812 < Notary Public-California z = Fresno County ' I certify under PENALTY OF PERJURY under the laws My Comm.Expires Feb 12,2013+ of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature dylt44 Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document 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): ❑ Partner—❑ Limited ❑ General _ _ _ ❑ Partner—❑ Limited ❑ General J Attorney in Fact ❑Attorney in Fact • ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ------------------- ©2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1.800-676-6827 CITY'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) On .ay4i44t2O.,MJO before me, �• , Deputy City Clerk personally appeared, P LLl.. &22&�� /�c��lc-L Lll 4"4 proved to me on the basis of satisfactory evidence, to be the persons(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(s) the person(s), or the en[ity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of 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 By: DEPUTY SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on L i�c-I0 1 , 9(D 1 n , in the office of the Fresno County Recorder as Document No. a D )C�- b D9 )9 Ll of which the Deed of Trust in by and between: 1-��Ir� �� SLC, as Trustor, Tk pe.� as Trustee, ,�r_�,4� and � Ouy* 04 t*le-ts A V A6 J6;to 4 SCS K Q, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development in the Downtown Priority Areas and Creating Lien to Secure Payment of Certain Deferred Development Impact Fees for the Fulton Village Project. DATED: BENEFICIARY By: Mae Itne Mu r h y EKrc By: (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of rf-esny On 5–) 8- )Q before me, CM6" 1 ' kf'-�U7--� 00t`u R40>I r Date t Here Insert Name and Ttlle of the Officer v� personally appeared ► - I rAlrLLYI n 1!�- LAfQ of Signer(s) 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. AMBER MARTINEZ 1 certify under PENALTY OF PERJURY under the laws i� - Commission;,e 1833812 Notary Public-California i of the State of California that the foregoing paragraph is L12F_ Fresno County ' true and correct. M Comm.Expires Feb 12,2013 WITNESS Signature mn:z cial seal. Place Notary Seal Above ture of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document 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): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—71 Limited ❑ General ❑ Attorney in Fact • ❑Attorney in Fact • ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator Ll Other: ❑Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NalionalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827 EXHIBIT `A' Deferred Development Fees and Payment Schedule APN 466-192-01 & 16 Entitlement No. C-10-067 (Fulton Village) Date Filed: 3/17/2010 Job Address File: 1775 & 1759 Fulton Street Building Permit No. (HTE) 10-2694 thru 2709 Date Issued: Certificate of Occupancy— Date Issued: Deferred Development Fees and Fee Obligations FEE QTY UNITS FEE RATE/UNIT TOTAL Citywide Park 46 Living Units $2,764.00 $127,144.00 Facilities Impact Fee Citywide Fire Facility 3,764 sq.ft. $0.236 Demo Credit Impact Fee 46 Living Units $439.00 $20,194.00 Citywide Police 3,764 sq.ft. $0.665 Demo Credit Facility Impact Fee 46 Living Units $508.00 $23,368.00 Citywide Traffic 162 ADT $47.12 Demo Credit Signal Mitigation 46 Living Units $316.65 Paid w/T-5956 Impact Fee Citywide Major 1.1951 Acres $16,131.00 $19,278.16 Street Impact Fee TOTAL DEFERRED DEVELOPMENT FEE OBLIGATION $189,984.16 Deferred Development Fee Payment Schedule .Payment No Payment Amount Due (25%) Payment Due Date** 1 $47,496.04 ** 2 $47,496.04 ** 3 $47,496.04 ** 4 $47,496.04 `* * The date of issuance of the Building Permit will be inputted by the City prior to the filing for recording of this Statement of Covenant. ** The date of issuance of the Certificate of Occupancy and the Payment Schedule will be provided by separate notice by the Public Works Department.