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HomeMy WebLinkAboutT-4594 - Agreement/Covenant - 8/21/2006 (2) ' CI of FRESNO 94081 131 '��DEDA' REQUEST OF DEVII.OMM DEPABTNUM MW A -*GURANa 2M Freed screee FRESNO CA 93731J604 AT AIN. PAST M MAY 12199f MAW MAUI GoLrow" WLLUM C.0MEM0000.CGU*PACBMW PLEASE CONFORM . -------------------ABOVE SPACE FORA ------------ Tract No. 4594 Development Department P.W. FILE No. 9561 City of Fresno APN: 402-220-17 STATEMENT OF COVENANTS, DISCLOSURE AND INDEMNITY AFFECTING LAND DEVELOPMENT FOR "RESTRICTIONS REGARDING ISSUANCE OF BUILDING PERMIT" (Tract No. 4594) RECITALS WHEREAS, KAUFMAN AND BROAD OF FRESNO, INC. , a California Corporation, 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. 4594 (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 Statement of Covenants Disclosure and Indemnity Tract No. 4594 Page 2 WHEREAS, City of Fresno (CITY) is conditioning the issuance of building permits for "THE ENTITLEMENT" to allow the construction of 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, developed, 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 . 4594 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 acknowledgment 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, Statement of Covenants Disclosure and Indemnity Tract No. 4594 Page 4 seeking to attack, set aside, void or annul the City' s foregoing 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 subcontractors, 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 . Statement of Covenants Disclosure and Indemnity Tract No . 4594 Page 5 4 . If applicable, Covenantor hereby waives any and all rights he may have pursuant to Government Code 65961. 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. Statement of Covenants Disclosure and Indemnity Tract No. 4594 Page 6 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 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. 4594 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: 9¢ CITY OF FRESNO, COVENANTOR a Municipal Co p ration By KAUFMAN AND BROAD OF FRESNO, INC. AlvkleP. Solis, Director a Californi Corpora ion Development Department APPROVED AS TO FORM: By: JAM S P. UGxd Cit Atto ney Warren Kiggins, sistant Secretary By By: De t William P. West Assistant Secretary (Attach Notary Acknowledgment) STATE OF CALIFORNIA ) COUNTY OF Fre fn D ) ON A►Pr. 13, 144+ before ■e, the undersigned, a Notary Public in and for said State, personally appeared Warrtn IGggins - Cthd Wi!limn P. Wes personally known to we (or proved to ■e 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. WITNESS my hand and official seal. DIME D.DU BdS 9 41 12 f�lNIY Notary Public Th an or said County and State grCmmMMmtmr.3.M7 Statement of Covenants Disclosure and Indemnity Tract No. 4594 Page 8 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) ss . COUNTY OF FRESNO ) On 91994, before me, � personally,v appeared personally known to me (or provided to me on the basis of satisfactory evidence) to be the persons(1f) whose name(X) is/arae subscribed to the within instrument and acknowledged to me that he/she,dthe executed the same in his/hez e+T,- authorized capacity(sas-) , and that by his/her-,44 -- r signature()() on the instrument(if) the person(j() , or the entity upon behalf of the CITY OF FRESNO of which the person(X) acted, executed the instrument. WITNESS my hand and official seal. JACQUELINE L. RYLE, CMC CITY CLERK By Ciln *am DEPUTY LR:crm LAND430/+6861 Tract No. 4594 P.W. No. 9561 EXHIBIT "A" The Subject Property referred to in these covenants is situated in the State of California, County of Fresno, City of Fresno, and is described as follows : The East half of Lots 85 and 86 of Perrin County No. 2, according to the amended map thereof recorded in Volume 4, Page 68 of Plats, Fresno County Records . Together with that portion of East Nees Avenue vacated by .Fresno City Council Resolution No. 94-85, recorded April 22, 1994, as Document No. 94069936, Official Records of Fresno County. LR:crm LAND430/+6858 • City of EXHIBIT B DEPARTMENT OF PUBLIC UTILITIES March 9, 1994 VffitIFICATION OF AVAILABILITY OF ESSENTIAL URBAN SERVICES IN THE WOODWARD PARK COMMUNITY PLAN APPLICATION: FINAL TRACT NO. 4594 (INCLUDING BY REFERENCE THE FINDING FOR TENTATIVE TRACT NO. 4594 DATED JUNE 7, 1993) Project Description: The project is located on the northwest corner of East Nees and North Millbrook Avenues. The applicant is requesting approval for a proposed single family residential development on 18.6 acres. SANITARY SEWER SERVICE In compliance with the Woodward Park Community Plan Monitoring and Findings Procedures, sanitary sewer service was previously determined to be available to this project in the Herndon/Cornelia Trunk Sewer. A sewer demand analysis indicates the project would contribute to the sewer system an average flow of 25, 194 gallons per day (R-1/UGM/cz (86 units x 2.79 persons/unit x 105 gpd/person) ) . 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 total peak demand of 183 gpm (R-1/UGM/cz (86 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 peak flow for all approved demand when connected to the water supply. :OMMMITY PLAN Lalysis indicates the current supply is not Le. The Leet approved demand, this project may be approved is as required r the. approval on one of the following mitigation Lust be completed prior to the issuance of building :he completion Lbove Well 176 (estimated project completion March, mg not to is completed. Completed well(s) of equivalent ,cupancy date Aty may be substituted for the above listed well. ter determines Lter analysis, Le request for building permits is delayed more Lter supply six (6) months beyond the date of this water int and for .ng and the Water Systems Manager determines that :conal development has been approved which results L Approved Demand which exceeds the future water Lp, or prior .y, an additional well or wells may be required to lots, the Owner L line, in addition to those listed above, before r disclosure ling permits will be issued, or isuance of P pay the .lding permit may be issued in lieu of the above .tions if the developer elects to construct or ,,e with an agreement for construction, a standard well at a location satisfactory to the Water :ms Manager. The well shall yield at least 1,000 ►ns per minute or twice his peak demand, whichever ,eater, and the Water Systems Manager determines at .ime the well is completed, that an adequate supply ,ter will be available to serve the development. i 3, 1994 ured agreement is defined as an agreement executed �e developer in which he/she agrees to construct a well by a specified date corresponding to the of occupancy and has posted a security to ntee its completion. se of possible groundwater degradation, which may re wellhead treatment, water well sites of an ate size to accommodate wellhead treatment are red. The Water Division has determined that a one ed (100) by one hundred twenty (120) foot area sents the minimum preferred area needed to install ell, wellhead treatment facilities and caping. The rectangular site shall enclose a um of twelve thousand (12, 000) square feet and EXHIBIT B =XHIBIT B r • , i + • Date: March 3, 1994 PROJECT: No. T-4594 Description:_ N/o E. Nees Ave. & W/o N. Millbrook Ave. No./Type Resid. Units: 86 units/R-1/UGM/cz Flr. Area N/A Type Commercial or Office Use: N/A WATER ANALYSIS AND FINDINGS 1. Anticipated Date Of OccuMRancy: Developer did not supvly 2. Available Water Supgly At Peak Hour a. Well supply serving the plan area meeting all State and EPA requirements and MCLS: 37.225 gRmm 3. Current Water Demand a. Peak demand for existing development (Receiving water) plus estimated monthly connected demand 32.474 ¢nm b. Peak demand for approved development (Not receiving water) 5.325 gpm c. Additional Peak demand for this project 183 gpmm Total Demand 37.982 gpm 4. Determination Available supply minus total demand (757) gpm Negative numbers in parentheses 5. Fire DeRartment Reguirements 35 PSI minimum pressure at all points Yes X 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 sfied. 74:9William T. Hetland De is Downs Director of Public U • 'ties Acting Fire Chief Rev.04/20/90 MemoB528 EXHIBIT B