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Home My WebLink AboutT-4352 - Agreement/Covenant - 6/29/2006 (5) w 9 2 7 4 c c0 rM.1 • xznmxTm CITY OF FRESNO l AT MIN. PAST M DEVELOphr r MMARTMOWr ��"1-U. DEC 21 1992 FM&W couNrr,UAUFOR" WUUW C.01%500=0.county R.mdw PLEASE CON'FORI AA MtpV 4.0 ��tv -------------------ABOVE SPACE FOR RECORDE�'S U -- Tract No . 4352 Development Depar ment Rezoning No . 91-39 City of Fresno APN: 401-060-31 Job Address : Northeast corner of Shepherd and Maple STATEMENT OF COVENANTS DISCLOSURE AND INDEMNITY "RESTRICTIONS REGARDING ISSUANCE OF BUILDING PERMIT" (Tract No . 4352) Phase I of Tentative Tract No. 4352 RECITALS WHEREAS, RICHARD J. LOUGHEAD JR. , a unmarried man, 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 , hereinafter referred to as "the Subject Property, " more particularly described in attached Exhibit "A, " which is incorporated herein by this reference; and WHEREAS, said property is located within the Woodward Park Community Plan ( "PLAN" ) area; and WHEREAS, the Plan and conditionally approved Tract No . 4352 (hereafter , "THE ENTITLEMENT" ) prohibit this development unless a permanent public water supply meeting minimum City standards, policies and requirements can be assured to serve such development; and WHEREAS, City of Fresno (CITY) is conditioning the issuance of building permits for "THE ENTITLEMENT" to allow the construction of Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 2 buildings within the development upon the covenantor assuring that the buildings will not be occupied until such a permanent and adequate water supply is available and the requirements detailed in the Director ' s notification of Findings ("FINDINGS") prepared pursuant to the verification and monitoring procedure for the availability of public services within the Plan area, which is attached hereto and labeled Exhibit "B, " will be satisfied. WHEREAS, the City is unwilling to permit such construction or inspect same without assurance that no vested rights or entitlements will be conferred by the issuance of construction permits or by the acceptance of such construction upon inspection. COVENANTS, CONDITIONS, AND RESTRICTIONS In consideration of the issuance of building permits in conjunction with the development of the Subject Property, the Covenantor hereby covenants that the Subject Property shall be held, conveyed, encumbered, used, occupied, devglaped, maintained, and improved subject to the following covenants, conditions, and restrictions, which are for the purpose of enhancing attractiveness , usefulness, value, desirability, and safety 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 Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 3 shall be binding upon and inure to the benefit of each successive owner of the Subject Property and his heirs , successors, and assigns during this ownership thereof . 1 . No certificate of occupancy will be issued nor any human occupancy allowed for any building on the Subject Property until a permanent and adequate water supply to serve such building, to be occupied, is determined to exist by both the Public Works Director and the Chief of the Fire Department of the City of Fresno . 2 . Covenantor will fully disclose in writing to the buyer, renter , lessee , or occupant of any lot , house or structure within said development the fact that a permanent and adequate source of water to satisfy the City' s minimum standards, including fire flow requirements , does not currently exist within said development and that no human occupancy of any such house or structure will be allowed until such a water supply is provided thereto . The purchaser , renter, lessee, or occupant of any such house or structure shall be required to sign an acknowledgmez)t.:documenting his receipt and understanding of such notice, which acknowledgement shall be provided to the City at any time upon demand. 3 . If the entitlement is the approval of a map, Covenantor agrees to hold harmless, indemnify and defend the City against any claim, cause of action, litigation, or processed, for damages, losses or liabilities, including an award of attorneys ' fees or costs, seeking to attack, set aside, void or annul the City' s foregoing Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 4 approval of "THE ENTITLEMENT, " which condition may result in the deferral of occupancy of any house or structure within the development until a permanent and sufficient source of water is available to serve said subdivision as hereinabove provided. Pursuant to Government Code 66474 . 9 , City shall promptly notify owner of any such claim and cooperate fully, in its defense. As to other entitlements , and as to the issuance of building permits, Covenantor agrees to indemnify, hold harmless, and defend the City and each of its officers , agents , and employees from any and all loss, liability, costs , and damages (whether in contract , tort or strict liability, including but not limited to personal injury, death at any time and property damage) , and from any and all claims, demands and actions in law or equity ( including attorney' s fees and legal expenses) , arising or alleged to have arisen directly or indirectly out of or in any way connected with ( a) the making of this agreement; (b) performance or installation of the work or improvements by the Owner, its employees, officers , agents, contractors or subcontrIct.ors, or (c) design, installation, operation or maintenance of the work and improvements , regardless of whether the City is actively or passively negligent, except for liability, loss, costs or damage caused solely by the negligence or willful misconduct of the City or its officers, agents, or employees . 4 . If applicable, Covenantor hereby waives any and all rights he may have pursuant to Government Code 65961. Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 5 5 . 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, his heirs , representatives , successors and assigns . Further, the provisions set forth in paragraphs 1 and 2 are intended to implement conditions of approval for building permits for "THE ENTITLEMENT" limiting the occupancy of buildings therein, which limitation must be disclosed to buyers, renters , lessees or occupants of said parcels or buildings in the manner set forth in California Business and Professions Code 11010 (b) (8) et seq. , notwithstanding the default, foreclosure, or bankruptcy of the Covenantor , its heirs, representative, successors or assigns . 6 . 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 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. 7 . The conditions and obligations of this Statement shall remain in full force and effect until such time as the Director of the Development Department of the City of Fresno issues a written Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 6 release of such conditions and obligations . Such release shall be issued at such time as the Public Works Director and the Fire Chief of the City determine in writing that a permanent source of water sufficient to satisfy the fire protection demands and minimum standards of the City is provided to the project for which the entitlement is sought . 8 . No vested rights or entitlements will be conferred by the issuance of construction permits or by the acceptance of such construction upon inspection. 9 . 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 other provision hereof . Statement of Covenants Disclosure and Indemnity Tract No . 4352 . Phase I of Tentative Tract No. 4352 Page 7 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. DATED: �0-2-c�-� /S� 9 9 z' CITY OF FRESNO, COVENANTOR a Muni ' al Corporation RICHARD J. LOUGHEAD JR. , an By unmarried man LAlvi P. olis, Director Development Department By: APPROVED AS TO FORM: i and J. Loughead Jr . JAMES P. LOUGH "WfflY/M"Arffl City Attorney n By (Attach Notary Acknowledgment) (1 Deputy GENERAL ACKNOWLEDGMENT State of California SS. County of Fresno On - Nov. 24, 1992 before me, J. XiUer , personally appeared Richard J. Lou head Jr. personally known to me (or 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 Opacity(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. WETNESS my hand and official seal. _ d MLLER (SEAL) cow"0956M ti Notary Puhft4 monk FRESNO COUNTY • k*ooarn.**kft F® 17.1906 a» " PUP! -1.x2) �� Statement of Covenants Disclosure and Indemnity Tract No . 4352 Phase I of Tentative Tract No . 4352 Page 8 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss . CITY OF FRESNO ) On this /.FkA day of in in the year / 992 before me , personally appeared personally known to me (or proved to a on the basis of satisfactory evi ence) to be the person who executed this instrument as Director of the Development Department and acknowledged to me that the City of Fresno executed it . JACQUELINE L. RYLE City Clerk By Deputy MB:crm LAND303/+4810 I ;. EXHIBIT "A" Legal Description Disclosure and Indemity "Restrictions Regarding Issuance and Building Permits" City of Fresno : That portion of the West half of Section 24 , Township 12 South, Range 20 East , Mount Diablo Base and Meridian, according to the Official Plat thereof, described as follows : Beginning at the Southwest corner of said Section 24 ; thence North 000 49 ' 11" East along the West line of the Southwest quarter of said Section 24 , a distance of 86 . 50 feet to the TRUE POINT OF BEGINNING of this description; thence continuing North 00' 49 ' 11" East along said West line . a distance of 542 . 00 feet; thence North 89' 16 ' 23" East , parallel with the South line of said Southwest quarter of Section 24 , a distance of 851 . 00 feet; thence North 000 49 ' 11" East parallel with said West line of the Southwest quarter of Section 24 , a distance of 167 .08 feet ; thence North 890 16 ' 23" East, parallel with said South line of the Southwest quarter of Section 24 , a distance of 166 . 22 feet; thence South 000 49 ' 10" West a distance of 1 . 52 feet ; thence along a tangent curve concave Northwesterly, having a radius of 275 . 00 feet, through a central angle of 060 01 ' 47" , an arc distance of 28 . 94 feet ; thence South 060 50 ' 57" West, a distance of 30 . 00 feet ; thence South 410 51 ' 36" East , a distance of 15 . 82 feet ; thence South 060 44 ' 58" West, a distance of 40 . 34 feet; thence South 470 57 ' 05 " West a distance of 18 . 10 feet; thence along a non-tangent curve concave Southeasterly, having a radius of 225 . 00 feet ; with a radial bearing of South 840 25 ' 25" East , through a central angle of 040 45 ' 25" , an arc distance of 18 . 68 feet; thence South 000 49 ' 10" West, a distance of 165 . 05 feet ; thence South 44' 57 ' 14" East a distance 17 . 33 feet; thence North 890 16 ' 23" East, parallel with said South line of the Southwest quarter of Section 24 a distance of 116 . 66 feet ; thence South 000 43 ' 37" East, a distance of 389 . 72 feet; thence South 890 19 ' 05" West a distance of 1144 . 64 feet to the TRUE POINT OF BEGINNING of this description. ALSO EXCEPT, all oil , gas and minerals now' 'or at any time hereafter situate therein in and thereunder , together with all easements and rights necessary or convenient for the production, storage and transportation thereof and the exploration and testing of the said real property and also the right to drill for , produce and use water from the said real property in connection with its drilling or mining operations thereon, by deed recorded March 26, 1943 in Book 2079 , Page 299 , Document No . 10243 , Official Records . WM:crm LAND303/4810 City of r ■*01 ieg NOV 2 3 tM DEPARTMENT OF PUBLIC UTILITIES .+cvB�OpMENT D�f.PAgTMEN1 November 10, 1992 EXHIBIT B VERIFICATION OF AVAILABILITY OF ESSENTIAL URBAN SERVICES IN THE WOODWARD PARK COMMUNITY PLAN APPLICATION: RESUBMIITAL OF FINAL TRACT NO. 4352; PHASE I OF TENTATIVE TRACT NO. 4352 (INCLUDING BY REFERENCE FINDINGS FOR FINAL TRACT NO. 4352 DATED SEPT. 10, 1992; TENTATIVE TRACT NO.4352, REZONE APPLICATION NO. R-91-31 DATED MAY 29, 1991) Proiect Descriotion: The project is located on the northeast corner of East Shepherd and North Maple Avenues. The applicant is requesting approval for a proposed single family residential development on 14.5 acres. WATER SERVICE In compliance with the Woodward Park Community Plan Monitoring and Findings Procedures for water service, based on a water analysis model maintained by the Water Systems Manager, it has been determined that a sufficient supply of water is not presently available for development of this parcel if all other approved development is connected. A water demand analysis of the project indicates an estimated peak demand of 121 gpm (R-1/UGM (57 units x 2.12 gpm/unit)). The computer analysis of the area including this additional demand indicates there would be insufficient volume, pressure, and fire flow available to provide minimum City Standards during periods of peakAow for all approved demand when connected to the water supply. Although the analysis indicates the current supply is not sufficient to meet approved demand, this project may be approved by conditioning the approval on one of the following mitigation measures that must be completed prior to the issuance of building permits: 1. The developer shall agree to construct, by secured agreement, a standard City well yielding at least 1,000 gallons per minute or twice his peak demand, whichever is greater, at existing City Well Site No. 128 adjacent to his site, or 2. The developer enters into a letter agreement satisfactory to the Water System Manager providing for the continued operation of the existing well (owned by Heritage Homes)located on East Goshen Avenue between North Cedar and North Maple Avenues. WOODWARD PARK CON94UNTIY PLAN November 10, 1992 Page 2 If the request for building permits is delayed more that six (b) months beyond the daft of this water finding and the Water Systems Manager determines that additional development has been approved which results in an Approved Demand which exceeds the future water supply, an additional well or wells may be required to be on line, in addition to those listed above, before building permits will be issued. A secured agreement is defined as an agreement executed by the developer in which he/she agrees to construct a water well by a specified date corresponding to the time of occupancy and has posted a security to guarantee its completion. U�I A_ • William T. Hetland, Director Department of Public Utilities WTH/MWH/cao/FT4352R.fnd Attachment: Water Analysis and Findings, dated October 29, 1992 c: Daniel L. Trafican, Assistant Director, Department of Public Utilities Kevin S. Ham, Water Division Engineer Dennis Megrditchian, Fire Department y ,ti Date: October 29, 1992 PROJECT: No. Tr. 4352 (RESUBMITTAL) Description: N. Maple Ave. and E. Skwiew Ave. No./Type Resid. Units: 57 units R-1/UGM F1r.Area N/A Type Commercial or Office Use: N/A WATER ANALYSIS AND FINDINGS 1. Anticipated Date Of OccuRancv: Develoyer did not supply 2. Available Water Suooly At Peak Hour a. Well supply serving the plan area meeting all State and EPA requirements and MCLS: 36,470 qpm 3. Current Water Demand a. Peak demand for existing development (Receiving water) plus estimated monthly connected demand 37 . 145 gpg b. Peak demand for approved development (Not receiving water) 4 . 694 anm c. Peak demand for this project 121 MM Total Demand 41.960 am 4. Determination Available supply minus total demand (5,490) ggm Negative numbers in parentheses 5. Fire Department Reauirements 35 PSI minimum pressure at all points Yes _JL.No in system at peak hour flow is available FINDING 1. Potable water capacity is not and will not be available to the project by the anticipated time of occupancy. 2 . Potable water capacity is available without additional conditions or project revisions. _ X 3 . Potable water capacity will be available by the anticipated time of occupancy, if the attached conditions are satisfied. • 000., . ' William T. Hetland Bud Arnsttong Director of Public Utilities Fire Chief Rev.04/20/90 MemOB179