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Home My WebLink AboutPM 2010-09 - Agreement/Covenant - 3/21/2014 (3) When Recorded Mail To: 03/20/2014,2010031665 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE -GOVERNMENT CODE 6103 CITY OF FRESNO 0Development & Resource Management Department U- Z 0 0 W LU a. STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT TO CREATE MUTUAL EASEMENTS AND RECIPROCAL USES FOR PARCEL MAP NO. 2010-09 Statement of Covenants Affecting Land Development Parcel Map No.2010-09 Page 2 WHEREAS, PAINTBRUSH, 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 through D, inclusive, of Parcel Map No. 2010-09 according to the map thereof recorded in Book -12 of Parcel Maps at Page(s) 0 A KP i L , 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 designated as Conditional Use Permit No. C-10-216 and anyamendments 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. 2010-09 is in substantial compliance with the Conditions of Approval for Vesting Tentative Parcel Map No. 2010-09 dated September 23, 2011 ("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. 2010-09 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. All utilities (including but not limited to gas, electricity, water, fire suppression systems, sanitary sewer, tele-communications, etc.); e. Access to all buildings and areas for emergency services; f. Landscaping; walls/fences; solid waste facilities; and g. 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 Statement of Covenants Affecting Land Development Parcel Map No.2010-09 Page 4 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 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 Statement of Covenants Affecting Land Development Parcel Map No. 2010-09 Page 5 be the responsibility of the Covenantor. 8. At such time Covenantor or subsequent owner(s) sells or transfers any parcel of the 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 Statement of Covenants Affecting Land Development Parcel Map No. 2010-09 Page 6 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 shall remain in full force and effect until 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. 15. This covenant shall apply to all of the lots within the Subject Property regardless of any adjustments to any lot lines or subdivisions within the boundary of the Subject Property. Statement of Covenants Affecting Land Development Parcel Map No.2010-09 Page 7 DATED: Q4ALILY tf CITY OF FRESNO, COVENANTOR a Municipal Corporation PAINTBRUSH, LLC, Development & Resource Management a California Limited Liability Company Department Jennifer K. Clark, Director By: By: 0 A4aa-4, se ,-Weri Director Bryan N. gner, Managin Member Jen fer K. Clark APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Taliaollu Barbick Deputy City Attorney Date: (Attach Notary Acknowledgments) CLERK'S CERTIFICATION State of California ) County of Fresno ) On March 11, 2014 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Jennifer K. Clark, Director, Development& Resource Management 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 Deputy TF 1• �qqt. CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC State of California ) County of Fresno ) On 00 0 i 3 'x 3 , before me, CHRISTINE B. BARILE,Notary Public, personally appeared BRYAN N. WAGNER, 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. CHRISTINE B. BARILE �Q 9. COMM.#1917598 y ' otary Public, State of California CC i NOTARY PUBLIC-CALIFORNIA N' FRESNO COUNTY Goran.Exp.Jan.1w,201� �q•�•E,. .,..ter-,�Qo�-a-vs••�-vc (Notary Seal)