HomeMy WebLinkAboutPM 2009-08 - Agreement/Covenant - 9/13/2011 When Recorded Mail To: 0911312011,20110121068
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
NO FEE - GOVERNMENT CODE 6103
CITY OF FRESNO
Development & Resource Management Department
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STATEMENT OF COVENANTS AFFECTING
LAND DEVELOPMENT TO CREATE MUTUAL
EASEMENTS AND RECIPROCAL USES FOR
PARCEL MAP NO. 2009-08
Statement of Covenants Affecting Land Development
Parcel Map No.2009-08
Page 2
WHEREAS, SHIELDS & ARMSTRONG, TANDEM REDUCTIONS, A California Limited
Partnership, hereinafter referred to as "Covenantor," is the owner of the real property situated in the
City of Fresno, County of Fresno, State of California, hereinafter referred to as the"Subject Property"
and more particularly described as follows:
Parcels A through D, inclusive, of Parcel Map No. 2009-08 according to
the map thereof recorded in Book ro of Parcel Maps at
Page(s) �- /0(J , 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 that all such
instruments of Subordination, if any, are attached hereto and made a part of this instrument; and
WHEREAS, Covenantor has developed, or intends to develop the Subject Property with
buildings, structure, parking and parking areas, driveways, driveway approaches, landscaping,
landscape irrigation, water for domestic and fire protection purposes, sanitary sewer disposal, gas,
electric, tele-communication services, solid waste facilities, storm water drainage, emergency
accesses, required walls/fences and other requirements in accordance with the approved Special
Permit application a designated as Conditional Use Permit Application No. C-09-106 and any
amendments thereto, hereinafter referred to as"Special Permit," in such a manner that each parcel of
the Subject Property will be compelled to use portions of other parcels of the Subject Property; and
WHEREAS, the City of Fresno ("City') is unable to find that Parcel Map No. 2009-08 is in
substantial compliance with the Conditions of Approval for Vesting Tentative Parcel Map
No. 2009-08 dated September 16, 2009 ("Tentative Map") until the Covenantor provides assurances
that such improvements and buildings will be constructed and maintained in compliance with the
conditions of approval of the Special Permit, Tentative Map, the California Building Code and the
Fresno Municipal Code.
Statement of Covenants Affecting Land Development
Parcel Map No. 2009-08
Page 3
COVENANTS, CONDITIONS AND RESTRICTIONS
In consideration of the approval and recording of said Parcel Map by the City, Covenantor hereby
covenants that the Subject Property shall be held, conveyed, encumbered, used, occupied,
developed, maintained, and improved subject to the following covenants, conditions, and restrictions,
which are for the purpose of enhancing attractiveness, usefulness, value, and desirability of the
Subject Property, the surrounding property, and the public at large and to minimize possible adverse
effects on the public health, safety, peace, and general welfare. Each of the covenants, conditions,
and restrictions contained in this Statement shall run with the Subject Property and shall be binding
upon and inure to the benefit of each successive owner of the Subject Property and his/her/its heirs,
successors, and assigns.
1. Each parcel of the Subject Property shall be developed and used in such a manner as
to enable reciprocal cross access between and among the parcels as approved by the City in the
Special Permit, regardless of whether the parcels of the Subject Property are owned or leased by the
same or different persons for the following purposes:
a. Pedestrian and vehicular ingress and egress;
b. Shared parking;
C. Drainage for storm water and storm water facilities;
d. Access to all buildings and areas for emergency services;
e. Landscaping; walls/fences; solid waste facilities; and
f. Any additional uses pursuant to amendments to the Special Permit approved
by the City.
2. Covenantor represents and warrants it is the sole owner of all parcels located in the
Subject Property. Covenantor shall create mutual easements to enable reciprocal cross access
between and among each parcel of the Subject Property, as a burden and a benefit, to satisfy the
need for cross access for each of the purposes identified in paragraph 1, above. Such mutual
Statement of Covenants Affecting Land Development
Parcel Map No. 2009-08
Page 4
easements shall be created effective upon sale, lease, assignment, transfer, or any other method of
disposing of any ownership interest or estate in the Subject property, by a series of transactions or
otherwise, such that there would no longer be a single person or entity who has a one-hundred
percent(100%) ownership interest in all parcels located in the Subject Property. For the purposes of
this Covenant, a one-hundred percent (100%) ownership interest in all parcels does not include
ownership interests subject to leaseholds or other estates.
3. Any buildings or structures constructed on any parcel of the Subject Property must
comply with the prevailing California Building Code.
4. Covenantor shall maintain all landscaping within the limits of the Subject Property in full
compliance with all applicable provisions of the Fresno Municipal Code.
5. Covenantor shall repair and maintain all components of the fire suppression water
system installed on the Subject Property including but not limited to those components relating to the
underground water supply for the fire suppression system in full compliance with all applicable federal
and state laws and the Fresno Municipal Code.
6. Covenantor shall maintain and repair the improvements and buildings, in such a
manner that will not limit or impair such mutual non-exclusive uses across parcel lines within the
Subject Property, in compliance with the approved Special Permit, Tentative Map, the California
Building Code and the Fresno Municipal Code.
7. As between the City of Fresno and Covenantor, the cost of maintenance and repair of
improvements, utility charges which are not separately metered and billed (including but not limited to
charges for sewer,water, solid waste collection, gas, electric and tele-communication service), shall
be the responsibility of the Covenantor.
8. At such time Covenantor or subsequent owner(s) sells or transfers any parcel of the
Statement of Covenants Affecting Land Development
Parcel Map No. 2009-08
Page 5
Subject Property, the owner shall disclose this Statement of Covenant to the buyer and reserve and
except from the deed for the parcel(s), the terms of this Statement of Covenant.
9. The conditions of this Statement of Covenant are intended to benefit the public and
public properties as well as properties appurtenant. Failure to comply with the terms of this Statement
of Covenant may result in the revocation of the Certificate of Occupancy or Special Permit by the City
for use of any Parcel of the Subject property involved. Accordingly, the City shall have the right to
enforce this Statement of Covenant by any legal or equitable means.
10. Each of the covenants, conditions, and restrictions contained in this Statement of
Covenant shall run with the Subject Property and shall be binding on each successive owner of the
Subject Property, his/her/its heirs, representatives, successors, and assigns.
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 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
Statement of Covenants Affecting Land Development
Parcel Map No. 2009-08
Page 6
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 shall remain in full force
and effect uni:il such time as the Development& Resource Management Director of the City issues a
written release of such conditions and obligations and records such release with the Fresno County
Recorder.
14. The provisions of this Statement of Covenant 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 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 Affecting Land Development
Parcel Map No.2009-08
Page 7
DATED: '01.2
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CITY OF FRESNO, COVENANTOR
a Municipal Corporation
SHIELDS & ARMSTRONG, TANDEM
Development& Resource REDUCTIONS,
Management Department A California Limited Partnership,
Mark Scott, Interim Director
By: Its General Partner
E.P. Graham &Company,
A California Corporation
By:
Mark Scott, interim Director
By: g��- -C
Ernest P. Graha&y4lrresident
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: `
o Chaffin
enio Dep y City Attorney
Date: / (attach(Votary Acknowledgments)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of MoNT)✓QtY
On Av4,,sr ZZ, 2c,11 before me, DAN1i:L- 19. Kosrn_i, M Thar Fb&Ll(
Date Here Insert Name and Title of the Officer
personally appeared Errvtsr P 4¢Ali-imi
Name(s)of Signer(s)
e
who proved to me on the basis of satisfactory evidence to
be the person(ewhose name(K is/a#6 subscribed to the
within instrument and acknowledged to me that
he/sg/tKey executed the same in his/befi/Wir authorized
�.- DANIEL B. KOSTIW capacity(Ws), and that by his/fir/thdir signature,o on the
V gommisslon#1865356 instrument the personM, or the entity upon behalf of
NataryPublic-Qalbma the which erson acted, executed the instrument.
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2 My comm.Expkds Slept.18,2013
s 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 Ind of ' ial seal.
Signa
Place Notary Seal Above Signature of Notary Public
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Description of Attached Document
Title or Type of Document:
Document Date: !s/ZZ/11 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 _ _
Mill
❑ 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:
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CLERK'S CERTIFICATION
State of California)
County of Fresno )
On September 1, 2011, before me, Stacey Woo, Deputy City Clerk, personally
appeared Mark Scott, Interim Director, 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
By 11
Dep y
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded
on March 4, 2010 , in the office of the Fresno County
Recorder as Document No. 2010-0029175 of which the Deed of Trust in, by and
between: Shields & Armstrong, Tandem Reductions, A California Limited Partnership as Trustor,
Placer Title Company as Trustee,
and Security First Bank as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing
Statement of Covenants Affecting Land Development to Create Mutual Easements and Reciprocal
Uses for Parcel Map No. 2009-08
DATED: August 9, 2011
BENEFICIARY
By:
Name: Robert E. Hemsath
Title: President and CEO
By:
Name:
Title:
(Beneficiary to print/type document
information, Name, Title and attach
Notary Acknowledgment)
........... ................. ................ ..........-------
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
On before me,
(Here insert name and title of the offidery
personally appeared 2A'auY � c?
who proved to me on the basis of satisfactory evidence to be the persono whose name(`is/ pd subscribed to
the within instrument and acknowledged to me that he/Skye/thy executed the same in hisll)erl�ir authorized
capacity(ip4),and that by his/Vr/O(eir signaturew on the instrument the person(Al 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.
ESS my hand and official seal. - AIAA HUTCHINSON---I
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