This covenant and agreement is made by and between the City of Kerman, a general law city (“City”), and WFK Holdings, LLC, a California limited liability company and The Boyd Trust dated December 23, 1999 (“Covenantor”) located at 275 S. Madera Avenue, #100, Kerman, CA 93630 and is effective the date first appearing on the Clerk’s Attestation and signature for the City of Kerman.
RECITALS
WHEREAS, Covenantor is the owner of that certain real property in the City of Kerman, County of Fresno, State of California, hereinafter referred to as the “Subject Property” and more particularly described as follows and by this reference made a part of this Statement of Covenant:
Lots 1 through 119, inclusive, of the Final Map of Tract No. 6430, according to the map thereof recorded on , 20 in Volume of
Plats at Page(s) , Fresno County Records
The Subject Property is generally located on the southeast corner of the California and Modoc Avenues alignment intersection.
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 filed with City a Final Map of Tract No. 6430, hereinafter referred to as the “Final Map;” and
WHEREAS, City desires to obtain covenants from Covenantor to insure the Subject Property is not developed, used, or maintained in such a way as to adversely affect adjoining properties.
COVENANTS, CONDITIONS, AND RESTRICTIONS
For favorable action on, and approval of, Covenantor's application for approval of said Final Map, Covenantor hereby covenants 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 of Covenant will run with the Subject Property and shall be binding on each successive owner of the Subject Property and his/her/its heirs, administrators, successors, and assigns.
1. Covenantor hereby acknowledges the declared policy of the City of Kerman and 164
Section 7, Item C.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6430
the County of Fresno is to preserve, protect, and encourage development of its agricultural land and industries and that the subject property is near agricultural districts which are located in the City of Kerman and County of Fresno and that the residents of said property should be prepared to accept the inconveniences and discomfort associated with normal farm activities. Consistent with this policy, Covenantor acknowledges and agrees to comply with California Civil Code section 3482.5 (Right-to-Farm Law), which provides that “No agricultural activity, operation, or facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after it has been in operation for more than three years if it was not a nuisance at the time it began. California Civil Code section 3482.5 is incorporated into this Statement of Covenants as if set forth in full herein.”
2. Covenantor further agrees that no agricultural pursuit, activity, operation, or facility that is consistent with the City of Kerman’s general plan and the City of Kerman’s zoning ordinance, including legal nonconforming uses, and is conducted or maintained for commercial purposes in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations in Fresno County, shall be or become a nuisance, private or public, due to any changed condition in the vicinity of that agricultural pursuit, activity, operation, or facility, after it has been in operation for more than three years if it was not a nuisance at the time it began, provided that the agricultural pursuit, activity, operation, or facility does not unlawfully obstruct the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal, or basin, or any public park, square, street, or highway.
3. The conditions of this Statement of Covenant are intended to benefit the public and public properties, including preserving agricultural land and by promoting a good neighbor policy with agricultural uses. Accordingly, City shall have the right to enforce this Statement of Covenant by any legal or equitable means against Covenantor and such person or persons in actual possession of Subject Property who directly or who through any agent violate the terms hereof.
4. This Statement of Covenant shall burden the Subject Property and constitute a covenant running with the land in favor of and for the benefit of City shall be binding upon the successors, transferees, assigns and heirs of Covenantor. Persons intended to benefit from the conditions of this Statement of Covenant, such as those with an agricultural pursuit, activity, operation, facility, or appurtenances thereof, may also have the right to enforce this Statement of Covenant. Covenantor consents to the recordation of this Agreement with the Fresno County Recorder.
5. The conditions and obligations of this Statement of Covenant shall remain in full force and effect until such time as City finds enforcement of such conditions and obligations are no longer equitable thereafter records a release with the Fresno County Recorder. 165
Section 7, Item C.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6430
6. 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.
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.
(Signatures on following page)
166
Section 7, Item C.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6430
IN WITNESS WHEREOF, the Parties hereto have duly executed this Statement of Covenant.
CITY OF KERMAN,
a Municipal Corporation
By:
John Jansons, City Manager
(Attach Notary Acknowledgment)
ATTEST:
By:
Josie Camacho, City Clerk
Date:
APPROVED AS TO FORM:
By:
Hilda Cantu Montoy
City Attorney
COVENANTOR
WFK Holdings, LLC, a California limited
liability company
By:
Ken Boyd, Manager
The Boyd Trust dated December 23, 1999
By:
Kenneth Robert Boyd, Trustee for the
Boyd Trust dated December 23, 1999
By:
Susan Kay Boyd, Trustee for the Boyd
Trust dated December 23, 1999
(Attach Notary Acknowledgments)
167
Section 7, Item C.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF __________
On __________, 202__ before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(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.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 168
Section 7, Item C.
WHEN RECORDED MAIL TO:
City Clerk
City of Kerman
850 S. Madera Ave.
Kerman, CA 93630
NO FEE - Government Code 6103 & 27383
APNs: 020-160-36S, 020-41-45S, 020-41-47S
TRACT NO. 6430
COVENANT REGARDING LAND DEVELOPMENT FOR THE
FINAL MAP OF TRACT NO 6430
“KERMAN LANDSCAPE AND LIGHTING DISTRICT NO. 1”
169
Section 7, Item C.
Covenant Regarding Land Development for the Final Map of Tract No. 6430
Kerman Landscape and Lighting District No. 1
This covenant and agreement is by and between the City of Kerman, a general law city (“City”), and WFK Holdings, LLC, a California limited liability company and The Boyd Trust dated December 23, 1999 (“Covenantor”) located at 275 S. Madera Avenue, #100, Kerman, CA 93630 and is effective the date first appearing on the Clerk’s Attestation and signature for the City of Kerman.
RECITALS
A. Covenantor is the owner and developer of that certain real property in the City of Kerman, County of Fresno, State of California, hereinafter referred to as “the Subject Property,” which is generally depicted on Exhibit ‘A’ and more particularly described as:
Lots 1 through 119, inclusive, of the Final Map of Tract No. 6430, according to the map thereof recorded on , 20 in Volume of
Plats at Page(s) , Fresno County Records
B. A condition of approval of Tentative Tract No. 6430 is a requirement that, prior to Final Map recordation, the Covenantor will annex the property to the Kerman Landscaping and Lighting District #1 (“LLD No. 1”) to levy and collect assessments to cover the cost of maintaining all streetlights, landscaping, and irrigation systems within the LLD No. 1 public right-of-way, and to cover the cost of maintaining special amenities located within the LLD No. 1 public right-ofway or easements, including, but not limited to, maintaining masonry walls, storm water holding ponds, and roundabouts. The Covenantor is also required to disclose to all potential lot buyers that the Tract has been annexed into LLD No. 1. Said condition is set forth in Resolution No. 24-76 as Condition No. G.3 (hereafter “LLD Condition”).
C. The Covenantor and the City desire to enter into this covenant (“Covenant”) providing for such annexation and notice to satisfy the LLD Condition for the Subject Property portion of Tentative Tract No. 6430.
COVENANT AND AGREEMENT
In consideration of the foregoing recitals which are incorporated by reference and to satisfy the LLD Condition, the Covenantor hereby covenants, promises, and agrees with the City for the benefit of the City and benefitted properties that the Subject Property shall be held, conveyed, 170
Section 7, Item C.
Covenant Regarding Land Development for the Final Map of Tract No. 6430
Kerman Landscape and Lighting District No. 1
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 Covenant 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 Covenantor’s heirs, successors, and assigns during Covenantor’s ownership thereof.
1. The Covenantor agrees that prior to the recordation of Tentative Map No. 6430, Covenantor will annex the property to LLD No. 1 to be levied and assessments collected to cover the cost of maintaining streetlights, landscaping, and irrigation systems within the LLD No. 1 public right-of-way, and to cover the cost of maintaining special amenities located within the LLD No. 1 public right-of-way or easements, including, but not limited to, maintaining masonry walls, storm water holding ponds, and roundabouts.
2. The Covenantor agrees to disclose to all potential lot buyers, prior to transfer of ownership, that the parcel within the Subject Property is part of LLD No. 1.
3. The conditions of this Covenant are intended to benefit the Subject Property, the public, the City and its public properties. Accordingly, it is agreed the City shall have the right to enforce this Covenant by any legal or equitable means, including, but not limited to, obtaining an order of specific performance, 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.
4. The waiver by either party of a breach by the other of any provision of this Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Covenant. No provisions of this 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.
5. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Covenant, including enforcement of a lien thereunder or under LLD No. 1, 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 171
Section 7, Item C.
Covenant Regarding Land Development for the Final Map of Tract No. 6430
Kerman Landscape and Lighting District No. 1
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.
6. The provisions of this Covenant shall be deemed independent and severable and the validity 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 Covenant so requires, in interpreting this Covenant, any gender includes the other genders, the singular includes the plural, and the plural includes the singular.
7. This Covenant shall not be deemed to confer any rights upon any individual or entity which is not a party hereto. The parties hereto expressly disclaim any such third-party benefit.
8. This Covenant may be amended only by a written instrument signed by both the City and the record owner of the Subject Property. Such instrument must be recorded in the Official Records of the County of Fresno.
9. This Covenant may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument.
///
172
Section 7, Item C.
Covenant Regarding Land Development for the Final Map of Tract No. 6430
Kerman Landscape and Lighting District No. 1
IN WITNESS WHEREOF, the parties duly executed this Covenant.
City: Covenantor:
CITY OF KERMAN
a Municipal Corporation
By: _______________________________
John Jansons,
City Manager
WFK Holdings, LLC, a California limited
liability company
By:
Ken Boyd, Manager
ATTEST:
By: _______________________________
Josie Camacho,
City Clerk
Date: ______________________________
APPROVED AS TO FORM:
By:
Hilda Cantu Montoy,
City Attorney
The Boyd Trust dated December 23, 1999
By:
Kenneth Robert Boyd, Trustee for the
Boyd Trust dated December 23, 1999
By:
Susan Kay Boyd, Trustee for the Boyd
Trust dated December 23, 1999
(Attach Notary Acknowledgments)
173
Section 7, Item C.
Covenant Regarding Land Development for the Final Map of Tract No. 6430
Kerman Landscape and Lighting District No. 1
Exhibit ‘A’
General Depiction of the Subject Property
The property comprised of APNs: 020-160-36S, 020-41-45S, 020-41-47S, generally located at the southeast corner of the California and Modoc Avenues alignments intersection. 174
Section 7, Item C.
01236.0406 2029792.3
WHEN RECORDED MAIL TO:
City Clerk
City of Kerman
850 S. Madera Ave.
Kerman, CA 93630
NO FEE - Government Code 6103 & 27383
APNS: 020-160-18S
BASIN COVENANT AND AGREEMENT
AFFECTING LAND BENEFITING PROPERTY FOR THE
FINAL MAP OF TRACT NO. 6430
Exhibit '4'
175
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
This Covenant and Agreement is made by and between the City of Kerman, a general law city (“City”), Lum Family Enterprises, LLC, a California limited liability company, (“Covenantor 1”), and WFK Holdings, LLC, a California limited liability company and the The Boyd Trust dated December 23, 1999 (“Covenantor 2”), and is effective the date first appearing on the Clerk’s Attestation and signature for the City of Kerman.
RECITALS
A. Covenantor 2 is the owner of that certain real property in the City of Kerman, County of Fresno, State of California, hereinafter referred to as the “Benefiting Property,” and more particularly described as:
Lots 1 through 119, and Outlots A1 through D4, of Tract No. 6430, in the City of Kerman, County of Fresno, State of California, according to the map thereof recorded in Volume ____ of Plats at Pages _____ through ______, Fresno County Records.
B. A condition of approval of Tract No. 6430 is a requirement that the Covenantor 2 provide temporary drainage facilities for the Benefitting Property (a subdivision) until such time that permanent facilities are available. Said condition is set forth in Resolution No. 24-76 as Condition No. F.1 and F.2 (hereafter “Temporary Basin Condition”).
C. Covenantor 2 has represented that the Benefiting Property is unable to accommodate a temporary basin within the Benefiting Property.
D. Covenantor 1 is the owner of that certain real property in the City of County of Fresno, State of California, hereinafter referred to as “the Subject Property,” and more particularly described as:
Lots 19 And 20 In Section 11, Township 14 South, Range 17 East, Mount Diablo Base And Meridian, According To The Map Of A Part Of Fresno Irrigated Farms Company Tract, Recorded In Book 8, Page 1 Of Record Of Surveys, In The Office Of The County Recorder
Of Said County.
Except All Oil, Gas And Other Hydrocarbon Substances In And Under Said Premises, Together With The Right And Privilege To Develop And 176
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
Remove The Same, As Reserved In The Deed From Win. G. Kerckhoff Company, A Corporation, To Livorio F. Cuadros And Mary Cuadros, Husband And Wife, As Joint Tenants, Dated February 6, 1947, Recorded March 19, 1947 in Book 2494, Page 411 as Document No. 13688.
E. The Subject Property is located contiguous to and immediately north of the Benefiting Property, and has sufficient capacity to accommodate a temporary basin to serve the Benefiting Property immediately north of the future alignment of California Avenue in Kerman, California.
F. Covenantor 2 has requested, and Covenantor 1 desires to grant, an easement upon the Subject Property as more particularly described in Exhibit “A” (“Easement”) to serve as a temporary basin facility.
G. The Parties acknowledge that the use of the Easement is a necessary element to satisfy the Temporary Basin Condition.
H. The Covenantor 2, Covenantor 1, and City desire to enter into this covenant (“Covenant”) providing for such facilities. The Parties acknowledge that the Covenantor 2 may establish a homeowners association for the Covenantor 2, which shall then assume all of Covenantor 2’s rights and duties under the Covenant and such homeowners association shall be deemed Covenantor 2 hereunder.
COVENANT AND AGREEMENT
In consideration of the foregoing recitals which are incorporated by reference and to satisfy the Temporary Basin Condition, the Covenantor 1 hereby covenants, promises, and agrees with the City and Covenantor 2 for the benefit of the City and benefitted properties, including the Benefiting Property, 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 Benefiting 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 Covenant shall run with the Subject Property and shall be binding upon and inure to the benefit of each successive owner of 177
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
the Benefiting Property and owner’s heirs, successors, and assigns during ownership thereof as well as to benefit the City.
1. The Covenantor 1 and Covenantor 2 agree that the Easement described in Exhibit “A” shall be used as temporary flooding and drainage facilities (“Temporary Basin”) until the Engineer of the City determines that such use is no longer necessary. Covenantor 2 shall use commercially reasonable efforts to backfill said basin(s) within ninety (90) days after notice is given by the City that the Temporary Basin is no longer needed. a. The Temporary Basin(s) shall be constructed and maintained in such manner that its capacity is equivalent to that which it was designed for or greater than that which is required per the Temporary Basin Condition.
b. The Temporary Basin (s) shall be kept free of any nuisance in fact or law, and shall be kept fenced and locked, with a separate City lock to allow for City access. c. Covenantor 2 shall be solely responsible for operation, maintenance, and repair of the Temporary Basin(s), including without limitation any and all costs associated therewith.
d. Covenantor 2 shall operate, maintain, and repair the Temporary Basin(s) in a manner that does not interfere with the City’s storm drainage system, or public rights of way. If in the discretion of the City, Covenantor 2 is not adequately operating, maintaining, or repairing the Temporary Basin(s), Covenantor 2 shall promptly remedy the same within twenty-one (21) days upon notice provided by the City to Covenantor 2 pursuant to the notice provisions in Section 16 below. If said obligations are not timely and fully completed within twenty-one (21) days of receipt of the notice, Covenantor 1 and Covenantor 2 agree the City has the option, but not the obligation, to enter the Subject Property as authorized herein and per the non-exclusive license granted in Section 2 below, and to undertake the repair, maintenance, or to take any other reasonable action to ensure the Temporary Basin(s) are operating as designed and approved. Notwithstanding, Covenantor 1 and Covenantor 2 agree that the City may immediately, without prior notice, enter the Subject Property and undertake said repairs, maintenance, or operations of the Temporary Basin(s) if warranted to address imminent public health, safety, or 178
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
welfare concerns as determined in the sole, reasonable discretion of the City.
Covenantor 2 further agrees that any costs or expenses incurred by the City under this Covenant shall be the sole obligation of Covenantor 2 and must be paid by the Covenantor 2 within thirty (30) calendar days of a request for payment, accompanied by invoices or other evidence documenting the reasonable costs incurred by the City being delivered in accordance with the notice provisions contained in Section 16 below to the property owner of the Subject Property at the address shown on the County assessor’s property tax assessment records. If not timely paid, Covenantor 2 consents to the recording of a lien on the Benefiting Property for any unpaid amount owing the City.
e. Covenantor 2 shall place on deposit with the City, an initial amount in the sum of ten thousand dollars ($10,000.00) which the city will hold as security for the faithful performance of the obligations set forth herein. In the event that Covenantor 2 shall fail to timely perform any of its obligations herein, City may utilize the deposit amount to perform such obligations without notice to Covenantor 2. City will thereafter provide Covenantor 2 with an invoice for amounts expended and Covenantor 2 shall replenish the deposit amount within thirty (30) days of such invoice. The deposit amount shall not earn interest. City may seek an increase in the deposit amount after a period of five years in an amount equal to the increase in CPI for the region during that period. Covenantor 2 may replace the cash deposit with substitute security in the form of a bond or letter of credit approved by the City at any time. The deposit amount shall be refunded to Covenanter 2 upon the first occurrence of (1) the final completion of the formation of an HOA on the Benefitting Property with binding and irrevocable conditions to maintain the Temporary Basin in a form approved by the City, (2) the completion of the sale and transfer of the Subject Property to Covenanter 2 and the execution of a new or amended agreement between Covenanter 2 and the City for maintenance of the Temporary Basin; or (3) the termination of this Covenant and restoration of the Subject Property as required herein.
179
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
2. The Covenantor 1 grants to the Covenantor 2 an easement to enter and use the Easement for any of the purposes identified in Section 1, or which may be required to effectuate the Temporary Basin Condition. The Covenantor 1 further grants to the City the right to enter upon the Subject Property for purposes of inspection and emergency maintenance of the drainage facilities and to regulate the use of and access to the portion of the Subject Property subject to the Easement. In that regard, the City shall have a non-exclusive license to enter upon that portion of the Subject Property subject to the Easement, and Covenantor 2 consents to the same.
3. Upon abandonment of the Temporary Basin(s) by connection to the City’s drainage system, Covenantor 2 shall also be responsible for abandonment of pipeline and associated storm drain facilities that are no longer used for drainage within the Easement to the satisfaction of the City.
4. The conditions and restrictions of this Covenant are intended to benefit the Benefiting Property, the public, the City, and the City’s public properties. Accordingly, it is agreed the City and/or the Covenantor 2 shall have the right to enforce this Covenant by any legal or equitable means, including, but not limited to, obtaining an order of specific performance, against the Covenantor 1 and such person or persons in actual possession of Subject Property who directly or who through any agent violate the terms hereof. Additionally, City shall have the right to enforce this Covenant against Covenantor 2 by any legal or equitable means, including, but not limited to, obtaining an order of specific performance, against Covenantor 2 and such person or persons in actual possession of Subject Property who directly or who through any agent violate the terms hereof.
5. The foregoing conditions shall remain in full force and effect until such time as (i) the City Engineer of City has made a determination that the Temporary Basin and thereby this Covenant are no longer necessary and provides written notice to Covenantor 1 and Covenantor 2; (ii) the Covenantor 2 at their sole cost and expense close the Temporary Basin and restore the Subject Property to substantially the same condition as its pre-Temporary Basin condition; and (iii) the City Engineer of the City has executed a Release of this Covenant. The City acknowledges that it is the intent of the parties of this Covenant to terminate when the Benefitting Property has connected to a permanent retention basin and City drainage facilities sufficient to serve the Benefitting Property.
180
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
6. To the furthest extent allowed by law, Covenantor 1 and Covenantor 2 agree to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the City, Covenantor 1, Covenantor 2, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation and legal expenses incurred by the City or held to be the liability of the City, including plaintiff’s or petitioner’s attorney’s fees if awarded, in connection with the City’s defense of its actions in any proceeding), arising or alleged to have arisen directly or indirectly out of performance or in any way connected with: (i) the making or performance of this Covenant; (ii) the design, installation, operation, removal or maintenance of the work, including those associated with the Temporary Basin(s), by Covenantor 2 and their employees, officers, agents, contractors or subcontractors; or (iii) the inspection, maintenance, or other work, including those associated with the Temporary Basin(s), by the City including that necessitated by Covenantor 1’s or Covenantor 2’s failure to timely perform under this Covenant. Covenantor 1’s or Covenantor 2’s obligations under the preceding sentence shall apply regardless of whether the City or any of its officers, officials, employees or agents are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence or willful misconduct, of the City or any of its officers, officials, employees, agents or authorized volunteers.
7. The waiver by either party of a breach by the other of any provision of this Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Covenant. No provisions of this 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.
8. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Covenant, including enforcement of a lien thereunder, 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 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 181
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
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.
9. Failure by either party to perform any material term or provision of this Covenant shall constitute a default. The party alleging a default shall provide the other party with written notice of any default and fifteen (15) days within which to cure the condition, or, if the nature of such that the default cannot be cured within that time, a party shall not be in default if such party commences to perform it obligations to cure within the fifteen (15) day period and diligently completes performance. Written notice shall specify, in detail the nature of the obligations to be performed by the defaulting party. Notwithstanding the foregoing, the City shall have the right to enter the Subject Property and undertake repairs, maintenance, or operations of the Temporary Basin(s) without notice, when warranted to address imminent public health, safety, or welfare concerns as determined in the sole discretion of the City Manager or designee.
10. Except as provided by Paragraph 8 regarding attorney’s fees and legal expenses, in no event shall the City, or its officers, agents or employees, be liable in damages for any breach or violation of this Covenant, it being expressly understood and agreed Covenantor 1’s and Covenantor 2’s sole legal remedy for breach or violation of this Covenant by the City shall be a legal action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Covenant.
11. The provisions of this Covenant shall be deemed independent and severable and the validity 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 Covenant so requires, in interpreting this Covenant, any gender includes the other genders, the singular includes the plural, and the plural includes the singular.
12. This Covenant requires Covenantor 1 to obtain subordination agreements by any person, entity, partnership, or corporation that may have a secured interest in the Subject Property that could arise to a fee interest. If there is such a secured interest, the subordination agreements shall be substantially in the form set forth in Exhibit “B” and shall be recorded at the same time that this Covenant is recorded.
182
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
13. No Third Party Beneficiaries. This Covenant shall not be deemed to confer any rights upon any individual or entity which is not a party hereto. The parties hereto expressly disclaim any such third-party benefit.
14. Amendments. This Covenant may be amended only by a written instrument signed by both the City and the record owner of the Subject Property and Covenantor 2. Such instrument must be recorded in the Official Records of the County of Fresno.
15. Counterparts. This Covenant may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument.
16. Notices. Any notice authorized, required, or permitted to be given hereunder shall be properly addressed to the party to be notified at the following address:
To City: City of Kerman
Attn: City Engineer
850 S. Madera Ave
Kerman, CA 93630
To Covenantor 1: To the address shown on the County
assessor’s property tax assessment records
To Covenantor 2: Ken Boyd
275 S. Madera Ave #100
Kerman, CA 93630
Any notice shall be deemed to have been given upon actual receipt if sent by United States mail, postage prepaid, certified mail or registered mail, return receipt requested. Any notice delivered by hand delivery or sent by overnight courier shall be deemed received on the date of actual receipt or upon refusal of delivery. Any address for notice may be changed by ten (10) days’ prior written notice to the other party of such address change in the manner provided above. 183
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
IN WITNESS WHEREOF, the parties duly executed this Covenant.
DATED: ___________________, 2025
CITY: COVENANTOR 1:
City Of Kerman
a Municipal Corporation
By:
Maria Pacheco, Mayor
Lum Family Enterprises, LLC, a California
limited liability company
By: ______________________________
Christopher Lum, Manager
ATTEST:
By:
Josie Camacho
City Clerk
Date: ________________________
COVENANTOR 2:
WFK Holdings, LLC, a California limited
liability company
By:
Ken Boyd, Manager
The Boyd Trust dated December 23, 1999
By:
Kenneth Robert Boyd, Trustee for the
Boyd Trust dated December 23, 1999
By:
Susan Kay Boyd, Trustee for the Boyd
Trust dated December 23, 1999
(Attach notary acknowledgements)
184
Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
EXHIBIT A
185
Section 7, Item C.
EXHIBIT A
LEGAL DESCRIPTION
APN: 020-160-18S (portion)
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Being a portion of Lot 19 in Section 11, Township 14 South, Range 17 East, Mount Diablo Base and Meridian of Fresno Irrigation Farms Co. Tract, recorded in Book 8, Page 1, of Record of Surveys, Fresno County Records, more particularly described as follows:
COMMENCING at the Southwest corner of said Lot 19;
Thence North 00º46’10” East, along the West line of said Lot 19, for 33.28 feet to a point on a line
33.28 feet North of and parallel with the South line of said Lot 19; Thence North 89º49’20” East, along said parallel line for 48.65 feet to the true POINT OF BEGINNING;
Thence North 00º10’40” West, perpendicular to the South line of said Lot 19 for 216.85 feet to a point on a line 250.13 feet North of and parallel with said South line; Thence North 89º49’20” East, along said parallel line for 349.06 feet; Thence South 00º10’40” East, perpendicular to the South line of Lot 19 for 216.85 feet to a point on said parallel line, 33.28 feet North of said South line; Thence along said parallel line, South 89º49’20” West for 349.06 feet back to the POINT OF BEGINNING;
Containing 75,692 Square Feet, or 1.74 acres, more or less 186
Section 7, Item C.
Lot 19 Fresno Irrigated Farms Company Tract Bk. 8 RS Pg. 1 F.C.R. Lot 18 Fresno Irrigated Farms Company Tract Bk. 8 RS Pg. 1 F.C.R. Lot 20 Fresno Irrigated Farms Company Tract Bk. 8 RS Pg. 1 F.C.R. California Avenue South Modoc Avenue EXHIBIT A - TEMPORARY BASIN EASEMENT City of Kerman, County of Fresno, State of California 187 Section 7, Item C.
Basin Covenant
Affecting Land Benefiting Property
Tract No. 6430
01236.0406 2029792.3
EXHIBIT B
(Subordination - Form)
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on { , 20 }, in the office of the { } County Recorder, as Document No. { } of which the Deed of Trust in, by and between {Full Name of Trustor}, as Trustor, {Full Name of Trustee}, as Trustee and {Full Name of Beneficiary}, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Basin Covenant Affecting Land Benefiting Property For The Final Map Of Tract No. 6430 DATED: ____________________, 202__
BENEFICIARY
By: ________________________________________
Name:______________________________
Title: _______________________________
By: ________________________________________
Name:______________________________
Title: _______________________________
(Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment)
188
Section 7, Item C.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Kerman
850 S. Madera Ave
Kerman, California 93630
APN: 020-160-18S (portion)
No recording fee required: Space above this line for Recorder's Use Exempt pursuant to Code 27383
No filing fee required:
Exempt pursuant to Government Code Section 6103
No payment of document transfer tax:
Exempt pursuant to Revenue and Taxation Code Section 11922
DEED OF EASEMENT
Lum Family Enterprises, LLC, a California Limited Liability Company, receipt of which is hereby acknowledged, hereby GRANTS to the City of Kerman, a California Municipal Corporation, an easement for public street and utility purposes over, across, and through the following described real property in the City of Kerman, County of Fresno, State of California, more particularly described as follows:
See Exhibits “A” – Legal Description and “B” – Right-of-Way Dedication attached hereto and incorporated herein by reference.
GRANTOR:
Lum Family Enterprises, LLC
Christopher Lum, Manager Date
189
Section 7, Item C.
ACKNOWLEDGMENT
A notary public or other office completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of __________________________________
On before me, ________________________________________
(insert name and title of the officer)
personally appeared
____________________________________________________________________ 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.
Signature (Seal)
190
Section 7, Item C.
EXHIBIT A
LEGAL DESCRIPTION
RIGHT OF WAY DEDICATION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
The South 33.28 feet of Lot 19 in Section 11, Township 14 South, Range 17 East, Mount Diablo Base and Meridian of Fresno Irrigation Farms Co. Tract, recorded in Book 8, Page 1, of Record of Surveys, Fresno County Records.
Containing 43,034 Square Feet, or 0.99 acres, more or less 191
Section 7, Item C.
EXHIBIT B - ROW DEDICATION City of Kerman, County of Fresno, State of California Lot 19 Fresno Irrigated Farms Company Tract Bk. 8 RS Pg. 1 F.C.R. Lot 18 Fresno Irrigated Farms Company Tract Bk. 8 RS Pg. 1 F.C.R. California Avenue South Modoc Avenue
192
Section 7, Item C.