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Home My WebLink AboutPM 2006-09 - Agreement/Covenant - Fee Deferral - 7/23/2018 IIIIIIIIIIIIIIIIIIII�VIIIIIIIIIIIIIIIIIIIIIIIIII ._ - RECORDING REQUESTD BY AND FRESNO County Recorder WHEN RECORDED MAIL TO: Paul D1ctoS, C,P,A, DOC— 2018-0087034 —; Acct 8017-First American Title - Fresno SPL City Clerk I Monday, JUL 23, 2018 08:00:00 City of Fresno Ttl Pd $80,00 Rcpt # 0005036766 2600 Fresno Street ARG/R3/2-15 Fresno, CA 93721-3603 Ffm P►F00M SBZ fres PfIL i-- - —--- — - ---- &A�T. COOL-f OV" 2739k.)(4) Nd N EE- Government Code 6103 CITY of FRESNO Development & Resource Management Department 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 PARCEL MAP NO. 2006-09 Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 2 RECITALS WHEREAS, JAGM PROPERTIES, LLC, A California Limited Liability Company and NORANGE, LLC, A California Limited Liability Company, Tenants in Common, 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:. Parcels B, C and D of Parcel Map No. 2006-09 according to the map thereof recorded in Book -7yof Parcel Maps at Page(s)77$7ftresno 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 Parcel Map No.2006-09(hereafter, "Project'), require the payment of applicable sewer connection charges,water connection charges, Urban Growth Management fees, City-wide Fees,Traffic Signal Charge 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, 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 Project pursuant to the provisions of the latest edition of the Uniform Building Code as adopted by the State 2 Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 3 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 maybe prorated by the City to each lot, parcel, unit or building on the Subject Property in the manner established by the 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 to pay one or more 3 Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 4 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 Covenant except as set forth in subsection "b", below. Any additional credits established afterthe 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 Covenant 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 Agreement 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 parcel map or as may be deferred by a this Statement of Covenants or applicable fee deferral covenant. If the parcel map has already been approved and there is no applicable fee deferral covenant, all such fees shall L1 Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 5 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 Covenant violate Government Code Section 65961. 9. Each of the covenants,conditions,and restrictions contained in this Statement of Covenant 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 Covenant. 10. The conditions of this Statement of Covenant are intended to benefit the public and public properties. Accordingly, the City shall have the right to enforce this Statement of Covenant by any S Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 6 legal or equitable means. All obligations of the Covenantor in this Statement of Covenant shall inure solely to the benefit of the City. There are no third party beneficiaries of said obligations nor shall the right of the City 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 ora 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 Covenant, 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 Covenant 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 of Covenant shall be deemed independent and severable Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 7 and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision hereof. Whenever the context of the Statement of Covenant so requires, in interpreting this Statement of Covenant,any gender includes the other genders, the singular includes the plural, and the plural includes the singular. Statement of Covenants Fee Deferral Parcel Map No. 2006-09 Page 8 / DATED: U L`/ CITY OF FRESNO, COVENANTOR a Municipal Corporation JAGM PROPERTIES, LLC, Development & Resource A California Limited Liability Company, and Management Department NORANGE LLC, A California Limited Liability Company, Jennifer K. Clark, Director As Tenants in Common By: By: Je i r . Clark, Director Joseph Pehanick, Managing Member APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Zra ateman-Doidge y City Attorney Date: (Attach Notary Acknowledgments) CALOFORMOA 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 5- 01a On_��_��_�_� ��..!/��'u,�.beforeme. -__--L�--�Z��a'-/ z / ^u/^^` Date Insert Name and Title ufthe Officer personally �'-_-1[��y�� ....______ ............ ....................... ....... .--_ (�) of3igmeqs) ----------------------------------'--'----'---------------------------------' ------' who proved to me on the basis of satisfactory evidence to be the pexson(�4 whose nmma($) is/we subscribed tothe within instrument and acknowledged to me that he/ executed the same in hia/he#thdrauthohzudoapaoity(iG6). undthatbyhiu/liem+feirsignotu/*(q)ontheinatrucnentthepemmn(s), or the entity upon behalf of which the person(A;acted, executi:'d the instrument. | certify under PENALTY C}FPERJURY Linder the laws of the State of California that the foregoing paragraph |atrue and correct. Y.ALVAREZ POM M V""'��47 WITNESS myhand and official seal. COMM:#2100470 P IL NOTARY PUBLIC-CALIFORNIA OL OU Y EXPIRES H 2019" Signature_ P'Siig�najture No��Fb�o Place Notary Seal Above CIPTIONAL ��___ Though this section/s optional, completing this information can da'&era/benytinn of the document or fraudulent reattachment u/this form ¢uun //n/ntendaddocument. Description mfAttached Document c/ Title or Type of Document: _ Dooument Dcda: �� Number of Pages: Signer(s) Other Than Named Above: _ Capecity(imm) Claimed bySigmmr(s) Signer's Nnme: _ .... ............. Signer's Name: � Corporate Officer — Title(s): _____ Corporate Officer -- Title(s): .................._..._______ < ] Partner — Limited 'JGenena| /] Pmlner — [ }Limited I..' General [� Individual i)Attorney inFact Individual \]Attorney inFact Tumteo Guardian orConservator Trua�� IGuardian orConservator � JOther �� Dqxar ........................_ ___ ....... Signer Is Representing: Signor hs Representing: ________.........._________ (D2014National Notary Association `wwwNodonalNntary.urg ` 1'8O0'USNOTARY(1-8OO'87O'0G27) 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 document CLERK'S CERTIFICATION State of California ) County of Fresno ) On July 6, 2018 before me, Marco Martinez-Velasquez, Deputy City Clerk, personally appeared, Jennifer K. Clark, Director, Development and Resource Management Department (DARM)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 z o o N•'TED Oct- By Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on November 4. 2011 ., as Document No. 2011-0150167 , in the office of the Fresno County Recorder, of which the Deed of Trust in, by and between: JAGM PROPERTIES LLC and NORANGE LLC , as Trustor, AMERICAN SECURITIES COMPANY as Trustee, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for 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 Parcel Map No. 2006-09. DATED: a °( BENEFICIARY WEiF .ts A2GU UAtlV. N/4-00/NIAC. ASS001A7?0 By: !i Name: Roberto Padilla Title: Vice President By: Name: Title: (Beneficiary to print4ype document information, Name, Title and attach Notary Acknowledgment) I CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 .Jc=.<•c^t-t=C,t=t..t=C,c=C`.n",cr•.�=r`,i=C: n h.=rte.^;�. � .r��,.�.�-„+._�,_'. e.cr..�rl•n1-r..r-r.�=1.F�C-:C.<-r.,s=r„i-C.ESS..i-r-.cr•.M.X r.,�-c+.�-r..�;C.,i-r.:c 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 (A ) On Z Z01 before me, I 0C. AAMK ate66d Here Insert Name and Title of the O icer personally appeared --4 beo e i in Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is�am subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ter/tl4eir authorized capacity#es),and that by his/her/their signature*on the instrument the person(s), or the entity upon behalf of which the persono 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. 91611Y DESIREE R. CIOCHON WITNESS my hand and official seal. COMM,# 2145697NOTARY PUBLIC•CALIFORNIACONTRA COSTA COUNTY CONY.ESP.MAR.10,2020 Signature Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended 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: ❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑Partner - ❑ Limited ❑General ❑Partner — ❑ Limited ❑General ❑Individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02016 National Notary Association •www.NationaiNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 12 EXHIBIT "A" DEFERRED FEES AND ESTIMATED FEE OBLIGATIONS FOR PARCEL MAP 2006-09 Project Zoning: IH I. WATER CONNECTION CHARGES A. Service Connections (flat rate cost.basis only) _-_ inch Services @ $_/Service = $ N/A B. Frontage Fee 1,260 Lineal Feet @ $ 6.50 /LF = $ 8,190.00 Less amount previously paid (App. No. 07-2862) _ $ 2,470.00 Estimated Deferred Frontage Fee = $ 5,720.00 C. Water Capacity Fee 3 - 2.0 inch Meters @ $ 10,615.00 /Meter = $ 31,845.00 3 - 1.5 inch Irrigation Meters @ $ 5,308.00 /Meter = $ 15,924.00 Less Water Connection Fees paid(App. No. 07-2862) , _ $ 4,509.74 Estimated Net Deferred Water Capacity Fee = $ 43,259.26 D. 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. Water Capacity Fee ll. SEWER CONNECTION CHARGES & SEWER RELATED CHARGES A. UGM Oversize Sewer Charge UGM Reimbursement Area 41,000 Square Feet @ $0.05 / Sq. Ft. _ $ 2,050.00 Estimated Net Deferred UGM Oversize Charge = $ 2,050.00 B. Lateral Sewer Charge 41,000 Square Feet @ $0.10 / Sq. Ft. _ $ 4,100.00 Estimated Net Deferred Lateral Sewer Charge = $ 4,100.00 C. Housebranch Sewer Charge = $ N/A D. 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. 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:\wp51\deferral\PM2006-09exhibitA March 28,2018 11 EXHIBIT "B" -- PRORATED FEE OBLIGATIONS Parcel Map No. 2006-09 Sewer, Water & Citywide Fees DUE / DEFERRED BY COVENANT Water Water Water Cap. Sewer. Sewer Regional Lot Lot Frontage Capacity Irrigation Lateral Oversize Street No. Area Amount Amount Amount Amount Amount Amount Due Due Due Due Due Due B 69260 $2,125.50 $9,111.92 $5,308.00 $0.00 $0.00 $3,963.87 C 47916 $1,514.50 $9,111.92 $5,308.00 $1,360.00 $680.00 $2,742.30 D 53579 $2,080.00 $9,111.92 $5,308.00 $2,730.00 $1,365.00 $3,066.39 document: \q\print\h 28-Mar-18 1S