HomeMy WebLinkAboutT-6033 - Agreement/Covenant - 3/11/2015 (4) WHEN RECORDED MAIL TO: 03/11/2015,20150028542
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
NO FEE - Government Code 6103
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CITY of FRESNO
0 Public Utilities Department
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P.W. File No. 11808
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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. 6033, PHASE 1 OF VESTING TENTATIVE MAP NO. 6033
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 2
RECITALS
WHEREAS, FOWLER DEVELOPMENT COMPANY, 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 and by this reference made part of this Statement of
Covenants:
Lots 1 through 94, inclusive, of the Final Map of Tract No. 6033 according
to the map thereof recorded on YYlAg . I ( I 2L90S in
Volume of Plats at Page(s) 'ILP 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. 6033 (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
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 3
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
building on the Subject Property in the manner established by the Development and Resource
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 4
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.
7. The maximum period for deferment of the Interim Fee Surety for a lot, parcel, unit or
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 5
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
proceeding or action shall be entitled to recover from the other party its reasonable attorney's
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 6
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
the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall
Statement of Covenants
Fowler Trunk Sewer Interim Fee Surety
Tract No. 6033
Page 7
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. 6033
Page 8
DATED: y 26 20I.S—
COVENANTOR
CITY OF FRESNO,
a Municipal Corporation FOWLER DEVELOPMENT COMPANY, INC.,
A California Corporation
Public Utilities Department
Thomas Esqueda, Director
By: ' By:
chuber, Assistant Director DariiA s mi, Senior Vice-President
r�
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By: 45�
Mary erman-Doidge
De y City Attorney
Date: � J
(Attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
�r
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of ' e' -S>
� �� �rn(D
I ) n
On �' SO— before me, I_.f _ \A U
_ afC(Y V }� i'(.r
Date ,-� Here Ins rt Name and Title a the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the persono whose name(sf is/ar.&
subscribed to the within instrumenr}t and acknowledged to me that he/aheA4ey executed the same in
his/het4heirauthorized capacity6e6), and that b his/f #e+r signature on the instrument the person,(,
or the entity upon behalf of which the person(7acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
LIANA LE WA is true and correct.
Commission#2078341 x WITNESS my hand and official seal.
a -w Notary Public-California z
' a
Fresno County
MY Comm.Expires Aug 17,2018] Signature
Signature of Notary P4 lic
Place Notary Seal Above
OPT/ONALI
Though this section is optional, comIthis
fror� can deter alteration of the document or
fraudulent reattachman unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) d Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: er's Name:
❑ Corporate Officer — Title(s): _ ' Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ Gene Partner — i I Limited _i General
❑ Individual Attorney i act i Individual Attorney in Fact
❑Trustee Guardi or Conservator ❑Trustee I I Guardian or Conservator
❑ Other: -- OtIiel.:
Signer Is Representing: Signer Is Representing:
02014 National N ary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
CLERK'S CERTIFICATION
State of California )
County of Fresno }
On February 27, 2015 before me, Cindy J. Bruer, Deputy City Clerk, personally appeared, Jerry
L. Schuber, Assistant Director of the Public Utilities 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
By t ; �. 0. . �; t _ ti y
a
Deputy
44 r!0 Or•Y.
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on MAY 13xj� , 2014 , in the office of the Fresno County Recorder,
as Document No. 2.014 - 0053361 of which the Deed of Trust in, by and
between lf )w zq- QiPLGPMEGorAo y tur- 1 A CA i , as Trustor
bLD I?osur- �rrME e-a%AP #jV j& CAS CMLPyi2A7nDiW , as Trustee
and ILDCA05 I&WSWE"IS01% , W-C- A G-A L1HlTED L1L.RlL1V COt4 Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing 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. 6033, Phase 1 of Vesting Tentative Map No. 6033.
DATED: J G-huar 201 G
BENEFICIARY a
1*(.4 F; / rfr�7r fN�", L L tv
By:
Name: ClriGLS SSS- '1
I rurf-ee as
Title: M ei-n be,r_
By:
Name:
Title:
(Beneficiary to print/type Name and Title;
and attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy, or validity of that document.
State of California )
County of
On 30._ I before me, ( ,
Date Here Irfsert Name and Tidd of the Officer
personally appeared LL I
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(4 whose named Is/.ara
subscribed to the within instrument and acknowledged to me that he/slae4t4ey executed the*Same in
his/heW414eir authorized capaclty(00,and that by his/ho"i. it signature�A on the instrument the personS,s'J,
or the entity upon behalf of which the personXacted, 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.
LIANA LEYVA
Commission#2078341 WITNESS my hand and official seal.
i =+ Notary Public-California a
x Fresno County
Comm. fires 17,2018 Signature
Signature of W4 Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information c deter alteration of the docurnent or
fraudulent reattachment of this form to a nintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) Other Tha amed Above: T
Capacity(ies) Claimed by Signer(s)
Signer's Name: __-- _.. _ Signer's Name:
❑ Corporate Officer — Title(s): Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑Gener Partner — i 1 Limited ! General
❑ Individual Attorney in act Individual IAttorney in Fact
❑Trustee Guardi or Conservator i Trustee I Guardian or Conservator
❑ Other: i Other:
Signer Is Representin Signer Is Representing:
02014 Kati Notary Association • www.National Notary.org - 1-800-US NOTARY(1-800-876-6827) Item #5907
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on kwvST b0 - 12014 , in the office of the Fresno County Recorder,
as Document No. W-A- 0Q8(,5C� of which the Deed of Trust in, by and
between Fowl,Etz J:�eujpwlEhM Cm- Pa Y i a r' as Trustor
OVD REPVBLiG TITLE 4C0uyA07`1, A CA VLA-r( as Trustee
and V.s +. stDu i d OA AA) , Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the
foregoing 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. 6033, Phase 1 of Vesting Tentative Map No. 6033.
DATED: �3v
BENEFICIARY '< NATI,4h•,X fPJY0Cr4:Ta,,,,
�1 d11 f�C�d'sr G' G9�ITAt. e-6"fft y
Name: Ilu, �S Cr- `4- i-fr"L
Title:
By:
Name:
Title:
(Beneficiary to print/type Name and Title;
and attach Notary Acknowledgment)
ACKNOWLEDGMENT
A notary pribis or otlrer officer completing this
certificate verifies only the identity of the
individrial x37110 signed the doctunent to which this
certificate is attached. and not the truthfiriness,
accuracy, or validity of that docurnent.
STATE OF CALIFORNIA
COUNTY OF FRESNO
On January 30, 2015, before me, Lori Nicole Beckman, a Notary Public,
personally appeared Thomas G. Walker, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person 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.
Signature
[SEAL] LCMI NICOLE BECKMAN
Commisslon#2012327
S' My Notary Public-California
Fresno County
Cotrim.Ex fres liter 15.2017