HomeMy WebLinkAboutT-5968 - Agreement/Covenant - 8/12/2011 (3) i
When Recorded Mail To:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
08/1 Z/Z011,20110106610
NO FEE - GOVERNMENT CODE 6103
CITY OF FRESNO
CC Development & Resource Management Department
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STATEMENT OF COVENANTS AFFECTING
LAND DEVELOPMENT TO CREATE MUTUAL
EASEMENTS AND RECIPROCAL USES FOR
THE FINAL MAP OF TRACT- NO. 5968, PHASE-1
OF VESTING TENTATIVE MAP NO. 5968
i
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 2
WHEREAS, FANCHER CREEK PROPERTIES, 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:
Lot 1 and Outlot A of the Final Map of Tract No. 5968 according to the map thereof
recorded on �I�OuS� /-2 20// in Volume $-2- of Plats at Page(s)
t & I 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 Vesting Tentative Map
No. 5968 as approved by the Fresno City Planning Commission with the adoption of Resolution No.
13085 on March 16, 2011 and Conditional Use Permit Application No. C-11-042 any amendments
thereto, hereinafter referred to as "Tentative Map" and "Special Permit", respectively, in such a
manner that certain lots within each of the 4-quadrants created by the intersection of North Fowler
Avenue and East Fancher Creek Drive which comprise the Tentative Map will be compelled to use
portions of other parcels within their respective quadrant; and
WHEREAS, the Final Map of Tract No. 5968, a final map for Phase-1 of the Tentative Map,
has been filed for approval and subsequent recording by the City of Fresno (City) for 2 of the 4
quadrants situated west of North Fowler Avenue and north and south of East Fancher Creek Drive to
create 1-Lot and 2-Outlots for future development purposes; and
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 3
WHEREAS, said Lot 1 and said Outlot A are situated within the southwest quadrant and Outlot
B is situated in the northwest quadrant; and
WHEREAS, upon development of said Lot 1, certain portions of said Outlot A may be
necessary for the uses stated above and upon re-subdivision(s)and development of Outlot A, certain
portions of said Lot 1 may be necessary for uses stated above; and
WHEREAS, said Outlot A may be subdivided via future final map phases of the Tentative Map
for up to an additional 11-lots; and
WHEREAS, the City is unable to find that the Final Map of Tract No. 5968 is in substantial
compliance with the Conditions of Approval for the Tentative Map until the Covenantor provides
assurances that as such improvements and buildings will be constructed and maintained on said Lot 1
and Outlot A, and subsequent subdivision phases(s) and Special Permit(s) thereon pursuant to the
Tentative Map, that such mutual easements and reciprocal uses will be provided.
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. Lot 1 and Outlot A of the Subject Property(southwest quadrant) shall be developed
F
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No.5968
Page 4
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(s), regardless of whether Outlot A, and subsequent
subdivision phases of said Outlot A, are owned or leased by the same or different persons to provide
mutual and reciprocal access for each parcel within said southwest quadrant to East Fancher Creek
Drive, North Fowler Avenue and Kings Canyon Road and 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
between and among each parcel of each of the quadrants 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°/x) 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.
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 5
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 supplyfor 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
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 Cerlificate 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
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 6
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
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.
Statement of Covenants Affecting Land Development
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 7
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
Mutual Easements and Reciprocal Uses
Final Map of Tract No. 5968
Page 8
DATED: CAU US-7- // 2-011
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
FANCHER CREEK PROPERTIES, LLC,
Development & Resource Management a California Limited Liability Company
Department
By: Kashian Enterprises,
a California Limited Partnership
By: AY'4'z zo"e�
its Member
Mark Scott, Interim Director
By:
Edward M. Kashian
its General Partner
APPROVED AS TO FORM: By:Africal Development, LP,
a California Limited Partnership
JAMES C. SANCHEZ its Member
City Attorney
V1, J 1.4 11L
Thomas G. ichards
By: its General Partner
n C affin
eputy ity ttorney
Date:
2�
(Attach Notary Acknowledgments)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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State of California
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m NOTARY PUBLIC-CALIFORNIAc70a person( 1, or the entity upon behalf of which the
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cRUFOPNP My Comm. Exp.June 24,2012 -
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.
Signature:,�—
Place Notary Seal Above Signature of ry Public
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and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document 1
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s):
❑ Individual ❑Individual
❑ Partner — I Limited -!General Top or thumb here ❑ Partner — J Limited C General Top of thumb here
C; Attorney in Fact ❑Attorney in Fact
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Ll Guardian or Conservator ❑Guardian or Conservator
C 1 Other: I-1 Other:
Signer Is Representing: Signer Is Representing:
0 2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
State of CALIFORNIA )
) SS.
County of FRESNO )
On this 13th day of July , 2011, before me, Leta M. Ciavaglia, Notary Public
personally appeared Thomas G. Richards , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(*) is/aye subscribed to the within
instrument, and acknowledged to me that he/s to4hey executed the same in his,tertheir
authorized capacity(is), and that by his/ha_.,,, *�: signature($) on the instrument the
person(, 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.
LETA M. CIAMI.IA
aly
COMM. #1850721 z
Notary Public -Californiaz Fresno County
Comm.Expires Jun.20,2013
My Commission Expires:
June 20,2013
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On August 4, 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
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SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on June 30, 2011 , in the office of the Fresno County
Recorder as Document No. 2011—0086731—00 of which the Deed of Trust in, by and
between:Fancr Cmc P rtie5, LIC, a Califami.a Limited Liability Cbh' as Trustor,
Premier Valley Bank , as Trustee,
and Premier Valley 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 the Final Map of Tract No, 5968, Phase-1 of Vesting Tentative Map No. 5968.
DATED:
BENEFICIARY
Premier Valley Bank
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By:
Name:Sheffie Hilliard
til V.P. Real Estate Lending
Manager
By. 7-24-11
Name:Michael W. Martinez
Title: Corp. Secretary
(Beneficiary to print/type document
information, Name, Title and attach Notary
Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On 1 before me,
Dated Here Insert Name and Title of the Officer
lc,,!-tel/
persona y appeared
Name(s)of Signer(s)
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
.,MSA capacity(ies), and that by his/her/their signature(s) on the
CORINA CADENA instrument the person(s), or the entity upon behalf of
Commission # 1793b48 = which the person(s) acted, executed the instrument.
Notary Public California
Z i. Fresno County
Mycomm.Expires Apr 9,2012 t 1 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.
Signature
Place Notary Seal Above Signature of Notary Public
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and could prevent fraudulent removal and reattachment of this form to another document.
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Title or Type of Document:
Document Date: 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 _
❑ 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:
02007 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On before me,
Date Here Insert Name and Title of the Offic
personally appeared
Names)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
E CORINA CADENA within instrument and acknowledged to me that
Commission # 1793448 he/she/they executed the same in his/her/their authorized
Notary PubliC -California capacity(ies), and that by his/her/their signature(s) on the
€ Fresno County instrument the person(s), or the entity upon behalf of
t,�yComM.EVMApr9'2012 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 myy�hand and official seal.
Signature
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Documnt
Title or Type of Document: 41
C �
Document Date: 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 _
❑ 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:
02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827