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HomeMy WebLinkAboutPM 2004-36 - Agreement/Covenant - 1/22/2015 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 O LL Z CITY of FRESNO U Public Works Department U) P.W. File No. 5494-2004-36 Q W a STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR DEFERMENT OF WATER WELL CONSTRUCTION TO TIME OF 55% OF DEVELOPMENT FOR PARCEL MAP NO. 2004-36 Statement of Covenants Water Well Deferment Parcel Map No. 2004-36 Page 2 RECITALS WHEREAS, FANCHER CREEK 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 in the attached Exhibit "A", 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. 2004-36 (hereinafter, "Project"), require the construction of a water well on a site dedicated to the City of Fresno and shall be a size and at a location acceptable to the Water Division of the City of Fresno; and WHEREAS, Covenantor has entered into a subdivision agreement which includes security for the construction of said water well and has requested the security to be released; and WHEREAS, it has been determined by the Water Division of the City of Fresno that the demand for water within the boundaries of said Parcel Map No. 2004-36 has not yet warranted the need for the construction of said water well until 55% of the total acreage of the Subject Property has been developed; and WHEREAS, upon development of 55% of the total acreage of the Subject Property, building permits will be restricted until a water well is constructed by the Covenantor acceptable to the Water Division of the City of Fresno. Statement of Covenants Water Well Deferment Parcel Map No. 2004-36 Page 3 COVENANTS, CONDITIONS, AND RESTRICTIONS NOW, THEREFORE, the Covenantor hereby covenants as follows: 1. The Covenantor shall construct a water well upon the development of 55% of the total acreage of the Subject Property. The 55% threshold is 42.83 acres of the total acreage of 77.88 acres. The water well shall be accepted by the City of Fresno and operational prior to the issuance of any additional building permits for each lot, parcel, unit or building on the Subject Property. 2. The Covenantor agrees that building permits will be restricted and will not be issued for any development on the remaining 45% of the total acreage of the Subject Property until the water well is accepted by the City of Fresno and operational. 3. The Covenantor shall provide to every prospective purchaser of each parcel of the Subject Property a copy of this recorded Covenant as disclosure of the requirement for the construction of a water well upon development of 55% of the total acreage of the parcels of the Subject Property and the building permit restriction. 4. 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. 5. Covenantor hereby waives any claim that the provisions of this covenant violate Government Code Section 65961. 6. 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. 7. 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 Statement of Covenants Water Well Deferment Parcel Map No. 2004-36 Page 4 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. 8. 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. 9. 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. 10. The conditions and obligations of this Statement, for each lot or parcel of the Subject Statement of Covenants Water Well Deferment Parcel Map No. 2004-36 Page 5 Property, shall be of no further force and effect upon construction and acceptance of a water well by the City of Fresno on a site dedicated to the City of Fresno. 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 Water Well Deferment Parcel Map No. 2004-36 Page 6 DATED: �tirUl�RIS`� CITY OF FRESNO, a Municipal Corporation COVENANTOR Public Works Department FANCHER CREEK PROPERTIES, LLC Scott Mozier, P.E., Director a California Limited Liability Company By: Kashian Enterprises, a California Limited Partnership, Its: Member By: �� s �❑ Andrew J, elle, P.E. By: Assistant erector Edward M. Kashian, General Partner By:Africal Development, L.P., APPROVED AS TO FORM: a California Limited Partnership, Its: Member DOUGLAS T. SLOAN By:Thomas G. Richards Living Trust Dated City Attorney September 7, 2005, -� Its: General Partner By: Thomas G. Richards, Trustee Mary Ra an-Doidge De4y City Attorney Date: (Attach Notary Acknowledgment) State of CALIFORNIA ) ) SS. County of FRESNO ) On this 24°day of December, 2014, before me, Leta M. Ciavaglia, Notary Public personally appeared _ Thomas G. Richards __, who proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/aoe subscribed to the within instrument, and acknowledged to me that he/may executed the same in h1s4w&Aauthorized capacity4m), and that by hist signature(*) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,executed the instr unent. 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. *ETA M. C)AVAGLIA r•: Commission 2025854 Notary Public -California r Fresno County M Comm,Expires Jun 20.2017 My Comrmission Expires: June 20,2017 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 nlc7 } On _ 5- before me., , Date Here Insert Name and Title of the Officer personally appeared E�LR u, b�� r _ _ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)'whose namew is4a4 subscribed to the within instrument and acknowledged to me that helpeltk]ey executed the same in h1sl�esJtF} authorized capacity i and that by hill rl Yaeir signatures)on the instrument the person(s - 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. Cl CALL4N! M. #1967389 z Public•CaltlOrnia oM. N:013rY esno CountySignature Ex fres an,22 ,2201161 Signa re 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: 02014 National Notary Association - www.National Notary.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 document CLERK'S CERTIFICATION State of California ) County of Fresno ) On January 22, 2015 before me, Sherrie Badertscher, Deputy City Clerk, personally appeared, Andrew J. Benelli P.E. Assistant Director Public Works Department 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 a1j1AAAd&aL Deputy EXHIBIT A The land referred to is situated in the County of Fresno, City of Fresno, State of California, and is described as follows: PARCEL ONE: Parcels A through S, Parcels AA through AQ, Outlots 1 and 2 of Parcel Map No. 2004-36, in the City of Fresno, County of Fresno, State of California, according to the Map thereof, recorded in Book 69, Pages 25 through 32 of Parcel Maps, Fresno County Records. PARCEL TWO: Voluntary Parcel Merger No. 2014-04 recorded July 29, 2014 as Document No. 2014-0083222, of Official Records of Fresno County, and more particularly described as follows: Parcel V of Parcel Map No. 2004-36, recorded in Book 69 of Parcel Maps, Page 25 through 32, inclusive, Fresno County Records. Together with that portion of Parcel W of said Parcel Map No. 2004-36, described as follows: Beginning at the Southeast corner of said Parcel W; thence North 891 19' 44"West, along the South line of said Parcel W, a distance of 86.58 feet; thence North 441 19' 17" East, a distance of 125.23 feet to the intersection with the East line of said Parcel W; thence South 000 35' 05" West, along said East line, a distance of 90.61 feet to the Point of Beginning. Also together with that portion of Parcel Y of said Parcel Map No. 2004-36, described as follows: Beginning at the most Southerly corner of said Parcel Y; thence North 451 40'43"West, along the Southwesterly boundary of said Parcel Y, a distance of 108.38 feet; thence North 000 35' 05" East, along the West boundary of said Parcel Y, a distance of 111.71 feet; thence North 440 19' 17" East, a distance of 179.45 feet; thence South 890 24' 55" East, a distance of 47.49 feet; thence South 450 40'43" East, a distance of 17.22 feet to an angle point on the Easterly boundary of said Parcel Y; thence South 450 40'43" East, along said Easterly boundary, a distance of 134.10 feet to the most Easterly corner of said Parcel Y; thence South 441 19' 17" West, along the Southeasterly boundary of said Parcel Y, a distance of 293.03 feet to the Point of Beginning. Excepting Therefrom that portion of said Parcel V described as follows: Beginning at the Northwest corner of said Parcel V; thence South 890 19'44" East, along the North line of said Parcel V, a distance of 305.21 feet; thence South 440 19' 17"West, a distance of 17.45 feet; thence North 890 19'44"West, a distance of 245.91 feet; thence South 790 00' 23"West, a distance of 46.02 feet to the intersection with the Northeasterly boundary of the North Laverne Avenue right-of-way; thence Northwesterly along the Southwesterly boundary of said Parcel V, also being said Northeasterly boundary, along a non-tangent curve whose radius point bears North 830 33'37" East, having a radius of 448.00 feet, through a central angle of 20 49' 08", a distance of 22.04 feet to the Point of Beginning. Together with Parcels U and Z of Parcel Map No. 2004-36, recorded in Book 69 of Parcel Maps, Pages 25 through 32, inclusive, Fresno County Records. Together with underlying fee interest, if any, adjacent to the above described property, in and to the adjoining public right-of-way. PARCEL THREE: Parcel B of Lot Line Adjustment No. 2014-04, as Document Number 2014-0066979, of Official Records of Fresno County, and more particularly described as follows: Parcel W of Parcel Map No. 2004-36, recorded in Book 69 of Parcel Maps, Page 25 through 32, inclusive, Fresno County Records. EXCEPTING THEREFROM that portion of Parcel W, described as follows: Beginning at the Southeast corner of said Parcel W; thence North 891 19' 44"West, along the South line of said Parcel W, a distance of 86.58 feet; thence North 441 19' 17" East, a distance of 125.23 feet to the intersection with the East line of said Parcel W; thence South 001 35' 05" West, along said East line, a distance of 90.61 feet to the Point of Beginning. Together with that portion of Parcel V of said Parcel Map No. 2004-36, described as follows: Beginning at the Northwest corner of said Parcel V; thence South 890 19'44" East, along the North line of said Parcel V, a distance of 305.21 feet; thence South 440 19' 17"West, a distance of 17.45 feet; thence North 890 19'44"West, a distance of 245.91 feet; thence South 791 00' 23"West, a distance of 46.02 feet to the intersection with the Northeasterly boundary of the North Laverne Avenue right-of-way; thence Northwesterly along the Southwesterly boundary of said Parcel V, also being said Northeasterly boundary, along a non-tangent curve whose radius point bears North 830 33' 37" East, having a radius of 448.00 feet, through a central angle of 20 49' 08", a distance of 22.04 feet to the Point of Beginning. Together with underlying fee interest, if any, adjacent to the above described property, in and to the adjoining public right-of-way. PARCEL FOUR: Parcel C of Lot Line Adjustment No. 2014-04, as Document Number 2014-0066979, of Official Records of Fresno County, and more particularly described as follows: Parcel Y of Parcel Map No. 2004-36, recorded in Book 69 of Parcel Maps, Page 25 through 32, inclusive, Fresno County Records. EXCEPTING THEREFROM that portion of Parcel Y, described as follows: Beginning at the most Southerly corner of said Parcel Y; thence North 451 40'43"West, along the Southwesterly boundary of said Parcel Y, a distance of 108.38 feet; thence North 001 35' 05" East, along the West boundary of said Parcel Y, a distance of 111.71 feet; thence North 440 19' 17" East, a distance of 179.45 feet; thence South 891 24' 55" East, a distance of 47.49 feet; thence South 450 40'43" East, a distance of 17.22 feet to an angle point on the Easterly boundary of said Parcel Y; thence South 450 40'43" East, along said Easterly boundary, a distance of 134.10 feet to the most Easterly corner of said Parcel Y; thence South 441 19' 17" West, along the Southeasterly boundary of said Parcel Y, a distance of 293.03 feet to the Point of Beginning. Together with underlying fee interest, if any, adjacent to the above described property, in and to the adjoining public right-of-way.