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Home My WebLink AboutPM 2009-12 - Agreement/Covenant - 4/19/2011 0 When Recorded Mail To: 4/15/2011,20110052035 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - GOVERNMENT CODE 6103 CITY OF FRESNO Q Public Utilities Department LLZ p P.W. File No. 5494-2009-12 U W U) a W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR COMMON SEWER HOUSE BRANCH FOR PARCEL MAP NO. 2009-12 Statement of Covenants Common Sewer House Branch Parcel Map No. 2009-12 Page 2 WHEREAS, LONGS DRUG STORES CALIFORNIA, LLC, a California Limited Liability Company, 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 and B of Parcel Map No. 2009-12 according to the map thereof recorded in Book of Parcel Maps at Page(s) E12 y` 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, the Conditions of Approval for Tentative Parcel Map No. 2009-12 dated August 2, 2010 by the City of Fresno ("City") Development and Resource Management Department, hereinafter referred to as `Conditions' and incorporated into this Statement of Covenant by this reference, requires a separate sewer house branch to be provided for each proposed parcel; and WHEREAS, the Covenantor elected to construct a private sanitary sewer system including one common sewer house branch to connect the Subject Property to the City Sewer System; and WHEREAS, the provisions of Section 6-304(a)(3)(ii) of the Fresno Municipal Code requires affected property owners to execute a covenant when a common sewer house branch serves more than one parcel; and WHEREAS, the Covenantor has Filed with the City, Parcel Map No. 2009-12 for approval and recording. Statement of Covenants Common Sewer House Branch Parcel Map No. 2009-12 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 or her heirs, successors, and assigns. 1. The development of the Subject Property shall be subject to providing and maintaining the private sanitary sewer system and one common sewer house branch to connect the Subject Property to the City Sewer System and payment of all applicable Sewer Connection Charges and Sewer Facilities Charges. 2. 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 legal or equitable means against the Covenantor and such person or persons in actual possession of Subject Property who directly or who through any agent violate the terms hereof. All obligations of the Covenantor under this Statement of Covenant shall inure solely to the benefit of the City. There are no third party beneficiaries of such obligations nor shall the right of the City be transferable in any mariner to any person other than to a successor municipal corporation whose geographic boundaries include the Subject Property. 3. 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. Statement of Covenants Common Sewer House Branch Parcel Map No. 2009-12 Page 4 4. 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. 5. 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. 6. The foregoing conditions shall remain in full force and effect until such time as the Public Utilities Department Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 7. 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 so requires, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. Statement of Covenants Common Sewer House Branch Parcel Map No. 2009-12 Page 5 DATED: M41zC W Z �ix ZO// CITY OF FRESNO, COVENANTOR a Municipal Corporation LONGS DRUG STORES CALIFORNIA, LLC, Public Utilities Department a California Limited Liability Company By: Longs Drug Stores, LLC, its Sole Member By: ��DirBy: PQ Robert N. Andersen, Assistant ector Kristine L. Donabedian, Assistant Secretary APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney (Attach Notary Acknowledgments) By: Shan Chaffin Deput y Attorney Date: --3( w STATE OF Rhode Island COUNTY OF Providence In Woonsocket,on the 11th day of March 2011, before me personally appeared Kristine L. Donabedian,Assistant Secretary of Longs Drug Stores California,LLC, to me known and known by me to be the party executing the foregoing instrument, and she acknowledged said instrument, by her executed, to be her act and deed and the free act and deed of Longs Drug Stores California,LLC AA �t otary Public: My Commission Expires: Dawn M. Bucci Notary PubliC State of Rhode Island My C:0mrnispion expires 08/24/2014 CLERK'S CERTIFICATION State of California ) County of Fresno ) On March 24, 2011 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Robert N. Andersen, Assistant Director, Public Utilities 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 REBECCA E. KLISCH, CMC City Clerk, City of Fresno By Deputy