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HomeMy WebLinkAboutPM 2008-24 - Agreement/Covenant - 9/9/2011 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street 0g�0g�2011,2011011g351 Fresno, CA 93721-3603 NO FEE -Government Code 6103 CITY OF FRESNO Fire Department 0 LL z 0 0 W V! a W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR RECIPROCAL EASEMENTS FOR SHARED FIRE SUPPRESSION WATER SUPPLY SYSTEM FOR PARCEL MAP NO. 2008-24 k I Statement of Covenants/ Reciprocal Easements for Shared Fire Suppression System Parcel Map No. 2008-24 Page 2 WHEREAS, FRESNO HERNDON DEVELOPMENT, LLC,an Indiana Limited Liability Company is the owner of the real property situated in the City of Fresno, County of Fresno, State of California and more particularly described in Exhibit A and Czeshinski &Wilkins Partnership, a General Partnership is the owner of the real property situated in the City of Fresno, County of Fresno, State of California and more particularly described in Exhibit B, hereinafter referred to as the "Covenantors" and the real property described in Exhibits A and B being hereinafter referred to as the "Subject Property'; and WHEREAS, the Fresno Municipal Code (FMC), by its incorporation of the 2007 Edition of the California Plumbing Code(CPC) and the provisions of Section 6-506 provides generally that each lot or building on the subject property shall be served by its own plumbing system, except as the code otherwise provides for; and, WHEREAS, CPC Section 301.2 provides for the use of alternate materials and methods of construction, including alternate construction arrangements, provided the alternate arrangement is first approved, the City of Fresno ("City") first finds that the design is satisfactory and that the arrangement offered is, for the purpose intended, at least the equivalent of that prescribed in the codes in performance, safety, and the protection of life and health; and, WHEREAS, the Covenantor has asked the City to approve a single fire suppression water supply service connection from the adjacent public water main to serve the fire suppression systems of two or more parcels within the Subject Property simultaneously from private fire suppression water lines; and, WHEREAS, the City Fire Chief and the City Building Official recognize that the purpose of the codes and City Fire Department, Fire Prevention Bureau standards is to provide adequate pressure and capacity for fire suppression systems and maintain control for inspection,safety and maintenance; and, i Statement of Covenants/Reciprocal Easements for Shared Fire Suppression System Parcel Map No. 2008-24 Page 3 WHEREAS, the City can approve of the Covenantor's request as an alternate arrangement of construction, but finds the proposal will involve private fire suppression water lines running across property boundaries and that it is therefore necessary to set up a covenant under which no owner or lessee of any of the parcels to be served by the private fire suppression water lines may interfere with the complete and safe operation of the fire suppression systems; and, WHEREAS, the City and Covenantors hereby declare their intent for this Statement of Covenants to create a series of reciprocal cross-access easements for the private fire suppression water lines for fire suppression system purposes. WHEREAS, the Subject Property is subject to the Statement of Covenants for Reciprocal Easements For Shared Fire Suppression Water Supply System for Parcel Map No. 2005-04 recorded December 21, 2005 as Document No. 2005-0297992 ("PM 2005-04 Fire Suppression Covenant"). NOW, THEREFORE, as required by the Municipal Code, and the City of Fresno, and in consideration of the foregoing, and the issuance by said City of the necessary special and/or building permits, certificates of occupancy and other approvals in connection with the development, build-out and use of the Subject Property, Covenantors hereby grant, promise, and agree, as follows: 1. Covenantors, and each of them, hereby grant to,and accept from,each other owners of the legal parcels subdivided by Parcel Map No. 2008-24, reciprocal easements for private fire suppression water lines over, under,through and across each of the parcels as shown on Exhibit "C" attached hereto and incorporated by reference as if fully set forth herein. No owner shall interfere, or allow the interference with, the installation, development and use of the common fire suppression water supply service connection or the private fire suppression water lines as herein described. The reciprocal Statement of Covenants/Reciprocal Easements for Shared Fire Suppression System Parcel Map No. 2008-24 Page 4 easements shall include all rights of access to enter upon the affected parcels for inspection and maintenance of the fire suppression water lines. 2. Covenantors, and each of them,agree to maintain the shared portion of the common fire suppression water supply service connection and the private fire suppression water lines according to Fresno Fire Department, Fire Prevention Bureau standards and to pay the monthly"fire protection service fee." 3. The reciprocal easements created herein shall run with the land and bind and inure to the benefit of Covenantors' respective heirs, successors and assigns. 4. Owners shall be responsible for the cost of repair and maintenance of the service lines, regardless of who undertakes the repair and maintenance and regardless of which parcels such repair and maintenance affects. 5. The failure to abide by the terms of this Statement of Covenant may result in the revocation of the Certificate of Occupancy for the use of any portion of the affected parcels, in addition to other penalties and remedies available to City. 6. Covenantors shall defend and indemnify the City against, and hold the City harmless from, all claims arising from the development and use of the fire suppression system anticipated by this Statement of Covenant. 7. 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 Statement of Covenants/Reciprocal Easements for Shared Fire Suppression System Parcel Map No. 2008-24 Page 5 California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys' fees. 8. 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 9. Whenever the context hereof requires, the neuter shall include the masculine or feminine, or both, and the singular shall include the plural. It is the intention hereof that this shall constitute a covenant running with the land owned by the Covenantors,jointly and severally binding upon the Covenantors and each of their heirs, representatives, successors and assigns. 10. At such time as any lot or portion(s) of the lot is sold, or title transferred and the transferee's rights may ripen into a fee, the transferor shall reserve or effectuate the creation of the easements envisioned in this Statement of Covenant. 11. This Statement of Covenant shall be released in part, or in its entirety, and of no further effect upon recordation of a written determination by the Fire Chief of the City of Fresno that its continued existence and enforcement are no longer necessary. 12. The conditions of the Statement of Covenant may not be amended or otherwise altered without express written approval of the City, pursuant to the Fresno Municipal Code. 13. The PM 2005-04 Fire Suppression Covenant is still in effect and is not superseded by this Statement of Covenant, however, if there is any conflict between the terms of this Statement of Covenant and the PM 2005-04 Fire Suppression Covenant, the terms of this Statement of Covenant shall take precedence. Statement of Covenants/ Reciprocal Easements for Shared Fire Suppression System Parcel Map No. 2008-24 Page 6 - DATED: �]–�UG Y 2 7, 2,oll CITY OF FRESNO, COVENANTOR a Municipal Corporation FRESNO HERNDON DEVELOPMENT, LLC, Fire Department an Indiana Limited Liability Company Joel L. Aranaz, Fire Chief 4;+'—z— "�4 B Y Joh i o. Urb hns,44ember MAn 4'jer APPROVED AS TO FORM: Czeshinski & Wilkins Partnership, JAMES C. SANCHEZ a General artnership City Attorney By: By: �' Mich . Czeshi ski, e ner �- Shannon , haffin Deputy, City'Attorney II By: Date: Jam . VVi ins, General Partner (Attach Notary Acknowledgments) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189 c State of California County of Fresno On April 21, 2011 before me, Hilda R. Lopez Date Here Insert Name and Title of the Officer personally appeared Michael J. Czeshinski and James H. Wilkins Name(s)of 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 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 R. VDA LOPEZ person(s) acted, executed the instrument. Commission#f 1886132 < Notary Public-California i Fresno County ' I certify under PENALTY OF PERJURY under the 0MY Comm.Expires 17,2011#+ laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: y Place Notary Seal Above OPTIONAL Signature of Notary Pybi7c 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: ❑ Corporate Officer — Title(s): C Corporate Officer — Title(s): ❑ Individual -i Individual ❑ Partner — !Limited I I General Top of thumb here -I Partner — -1 Limited -I General Top of thumb here ❑ Attorney in Fact C Attorney in Fact ❑ Trustee :I Trustee ❑ Guardian or Conservator I Guardian or Conservator ❑ Other: C Other: Signer Is Representing: Signer Is Representing: ©2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEOGMENT State of /I(l(�rif 4 OPTIONAL SEC nON County of_ �7 � f A) _ j� f `� 7io On 3-11�� / before me. _P eri ,( 01 9UUJI12;Notary Public— personally appeared�y/V n U L4'r',6e�I/•I �'}' C�•q A c. INDIVIDUAL(S) w�atSids"'M —`o-- — D CORPORATE OFFICER(S) - — / r�t a�c r ?t, LL ) who proved to me on the basis of satisfactory evidence to 11 PARTNERS ❑Limited be-the person(s)whose name(s) is/are subscribed to the ❑ General within instrument and acknowledged to me that O ATTORNEY-IN-FACT t}e/she/they executed the same in his/her/their authorized I]TRUSTEES) capacity(ies),and that by his/her/their signature(s)on the O GUARDIANSHIP/CONSERVATOR MARY BETH BOBBINS instrument the person(s), or the entity upon behalf of SIGNER IS REPRESENTING: pP „s Hamilton County NAME OF PERSON(S)OR FN7YI'Y(MS) `�'• which the person(s)acted,executed the instrument. _'NOTARY•• _•: yE,�. My Comy issio2.oE�Pires ., Jul 19, certify under PENALTY OF PERJURY under the laws `ta; of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SIeNATURE OF NOTARY 2 OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though tha data requested here is not required by law, ft could prevent fraudulent reattechment of Ihta form. SIGNER(S)OTHER THAN NAMED ABOVE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT OPTIONAL SECTION I State of County of 0 a On before me, otat_y Publ �, para Harp-risal--M1 Name ana 7i110 of Iho(HSco* personally appeared _ ❑ INDIVIDUALS) Neme(s)dsipRegsl i ❑ CORPORATE OFFICER(S) } who proved to me on the basis of satisfactory evidence to CIPARTNERS ❑Limited be,the person(s)whose name(s) is/are subscribed to the ❑General within instrument and acknowledged to me that El ATTORNEY-IN-FACT he/she/they executed the same in his/her/their authorized 11 TRUSTEE(S) t capadty(es),and that by his/her/their signatures) on the 0 GUARDIANSHIP/CONSERVATOR instrument the person(s), or the entity upon behalf SIGNER IS REPRESENTING: of NAME OF PERSON(S)OR WIiTY(ISS) which the person(s)acted,executed the instrument. 1 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. 0 L SIGNATURE OF NOTARY OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT_ THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here Is not required by law, It could prevent traudulont reahachment of this farm. SIGNER(S)OTHER THAN NAMED ABOVE-- ''SSSS, t CLERK'S CERTIFICATION State of California) County of Fresno ) On August 5, 2011, before me, Stacey Woo, Deputy City Clerk, personally appeared Joel L. Aranaz, Fire Chief, 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. REBECCA E. KLISCH. CMC CITY CLERK, City of Fresno 4�{A OF Pp r O By o rFD 6CN SUBORDINATION The undersigned as holder of the beneficial interest in and under (i) that certain Deed of Trust, Assignment of Rents and Leases and Security Agreement recorded on February 28, 2005, as Document Number 2005-0045727 of the Fresno County, California land records, as subsequently amended, modified and/or restated, and (ii) that certain Deed of Trust, Assignment of Rents and Leases and Security Agreement recorded on June 10, 2008, as Document Number 2008-0083523 of the Fresno County, California land records, as subsequently amended, modified and/or restated (collectively, the "Deeds of Trust'),,of which the Deeds of Trust, in, by and between: Fresno Hemdon Development, LLC, an Indiana limited liability company, as Trustor, Jeffrey R. Rush, Esq., as Trustee, and Beneficiary, hereby expressly subordinates the Deeds of Trust and its beneficial interest thereto to the foregoing Statement ,of Covenants Affecting Land Development for Reciprocal Easements for Shared Fire Suppression for Water Supply System Parcel Map No. 2008-24. DATED: March25 ,2011 BENEFICIARY: U. S. BANK NATIONAL ASSOCIATION, a national banking association By: 1-)Aon, 1,9. ? 4a,4ft f James S. Newgard,Vice President CINLibrary 8082567.0468834 2272543v2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT slate of_Wiseowc'i n - OMONAL SECTION Countyof On 3 before me, r 6 DGt)jk -Notary Publi c Dale_ 11et4uoM1 Name uM Ttla of 0a Oaoei personally appeared - of — ❑INDVIDU S ) ��� N ( c 0-CORPORATE or =[C:R(S)� ) who proved to me on the basis of satisfactory evidence to 0 PARTNERS 0 Limited be-the person(s)whose name(s)is/are subscribed to the 13 Gcnrrat within instrument and acknowledged to me that 0 ATTORNEY-IN-FACT T he/she/they executed the same in his/her/their authorized (]�USTEE(S) capacity(es),and that by his/her/their signature(s)on the 0 GUARDIANSHIP/CONSERVATOR instrument the person(s), or the entity upon behalf of SIGNER 1S REPRESENTING: CAROL 1 �iLOVVSKI which the person(s)acted,executed the instrument NAME OF PERSON(S)OR BNUTYgFS) INotc" Pufb11C State 01 VjIsconsin t certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true anoeon,41. W l+ S my hand and official seal V_ e 6 SIGNATURE OF NOTARY OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, n could provant fraudulent reattachment of this loan SIGNER(S)OTHER THAN NAMED ABOVE CALIFORNIA ALL-PURPOSE ACKNOWLEDOMIENT State of OPTIONAL SECTION Eotlnty of- 0 0 a On before me, NotatyP Pala N---oro�ond 1lUn M Ow Oar —ub� personally appeared 0 INDIVIDUALS) Namatslm Se�nq ! ❑ CORPORATE OFFICER(S) I who proved to me cn the basis of satisfactory evidence to 0 PARTNERS ❑Limited be-the person(s)whose names)is/are subscribed to the ' 11 General within instrument apd acknowledged to me that 0 ATTORNEY-IN-FACT 0TRUSTE S he/she/they executed the same in NwherAheir authorized E( ) caocilyCies),and that by hislhedtheir signature(s)on the 0 GUARpI REPRECONTING: OR SIGNER I5 REPRESEhITING: � instrument the person(s), or the entity upon behalf of NAME OF PERSON(s)OR M411• gEs) which the person(s)acted,executed the instrument r I certify under PENALTY OF PERJURY under the laws of the State of Califorriia that the foregoing paragraph is true and correct. WITNESS my hand and official seal, m R $10HATURE OF NOTARY OPTIONAL SECTION .r THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCU,,AENT DESCRIBED AT RIGHT: NUMDER OF PAGES DATE OF DOCUMENT Though the dela requested here It not requhed by low, (� h could provost Iraudulont reattachment of this form. SIGNER(S)OTHER THAN NAMED ABOVE U) EXHIBIT A (sheet 1 of 2) Parcels A through E, inclusive, of Parcel Map No. 2008-24 according to the map thereof recorded in Book �zo_ of Parcel Maps at Pages f Q Fresno County Records. EXHIBIT A (sheet 2 of 2) Parcel A of Lot Line Adjustment 2009-03, as Document No. 20090074862, of Official Records of Fresno County, and more particularly described as follows: Parcels B and F of Parcel Map No. 2005-04 in the City of Fresno, County of Fresno, State of California, according to the map thereof recorded in Book 65 of Parcel Maps at Pages 57 and 58, Fresno County Records. EXCEPTING THEREFROM that portion of said Parcel F described as follows. COMMENCING at the Southeast corner of said Parcel F; thence North 00024'43" West, along the East line of said Parcel F, a distance of 125.93 feet to the TRUE POINT OF BEGINNING; Thence North 89°45'29" West, a distance of 220.00 feet; thence North 00024'43"West, a distance of 126.00 feet to a point on the North line of Adjusted Parcel A of LLA No. 2007-50; thence South 89045'29' East, along the North line of said Adjusted Parcel A, a distance of 220.00 feet to the Northeast corner of said Parcel A; thence South 00°24'43" East, along the East line of said Parcel A, a distance of 126.00 feet to the TRUE POINT OF BEGINNING. ALSO EXCEPTING THEREFROM Parcels A, B, C, D and E of Parcel Map No. 2008-24, according to the map thereof recorded in Book of Parcel Maps at Pages 12 andFresno County Records. EXHIBIT B Parcel B of Lot Line Adjustment 2009-03, as Document No. 2009-0074862, of Official Records of Fresno County, and more particularly described as follows: That portion of Parcel F of Parcel Map No. 2005-04 in the City of Fresno, County of Fresno, State of California, according to the map thereof recorded in Book 65 of Parcel Maps at Pages 57 and 58, Fresno County Records, described as follows: COMMENCING at the Southeast corner of said Parcel F;thence North 00024'43"West, along the East line of said Parcel F, a distance of 125.93 feet to the TRUE POINT OF BEGINNING; Thence North 89045'29" West, a distance of 220.00 feet; thence North 00024'43"West, a distance of 126.00 feet to a point on the North line of Adjusted Parcel A of LLA No. 2007-50; thence South 89045'29" East, along the North line of said Adjusted Parcel A, a distance of 220.00 feet to the Northeast corner of said Parcel A; thence South 00024'43" East, along the East line of said Parcel A, a distance of 126.00 feet to the TRUE POINT OF BEGINNING. A EXHIBIT "C" 0 �O• 4"' 4" 6" PARCEL C PARCEL D SGALE I" = 80' 6" N� 2ppa_2� o PPRGE�-MPP FUTURE FIRE LINE 2 PARCEL B u_ 000 6� RSP P1NOE Zpp82 , 4 QQ� N EXISTING FIRE PPR�E� M 8" HYDRANT 1 F-1—- U a 1 e � i I 1 EXISTING 11 EXISTING FIRE LINE LL1 �! BUILDING CSL 8 81 1 30SJM�No3NO p,02ppg I PARCEL A i 4" u- 1 I � C 1 P PRGE MPP © PARCEL E PPR 2�5 U- 1 N�• I NORTH WILLOW AVENUE Harbour&Associates Civil Engineers ® 389 Clovis Avenue,Suite 300.Clovis, California 93612 ® (559)325-7676 -Fax(559)325-7699