01236.0401/1037450.1
This covenant and agreement is made by and between the City of Kerman, a general law city (“City”), and JOSEPH CROWN CONSTRUCTION AND DEVELOPMENT, INC., a California corporation (“Covenantor”) located at 5320 E. Pine, Fresno, CA 93727 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 163, inclusive, of the Final Map of Tract No. 6447, 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 Kearney Boulevard approximately 1,000’ west of Siskiyou Avenue; 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 filed with City a Final Map of Tract No. 6447, 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 453
Section 7, Item A.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6447
01236.0401/1037450.1
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. 454
Section 7, Item A.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6447
01236.0401/1037450.1
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)
455
Section 7, Item A.
Statement of Covenants Affecting Land Development
Acknowledging Right-to-Farm Law
Tract No. 6447
01236.0401/1037450.1
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
JOSEPH CROWN CONSTRUCTION AND
DEVELOPMENT, INC.,
a California Corporation
By:
Joseph Donald Crown, President
(Attach Notary Acknowledgment)
456
Section 7, Item A.
01236.0401/1037450.1
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. 457
Section 7, Item A.
WHEN RECORDED MAIL TO:
City Clerk
City of Kerman
850 S. Madera Ave.
Kerman, CA 93630
NO FEE - Government Code 6103 & 27383
APN: 020-140-22S and 020-140-23S
TRACT NO. 6447
COVENANT REGARDING LAND DEVELOPMENT FOR THE
FINAL MAP OF TRACT NO 6447
“KERMAN LANDSCAPE AND LIGHTING DISTRICT NO. 1”
Exhibit '3'
458
Section 7, Item A.
Covenant Regarding Land Development for the Final Map of Tract No. 6447
Kerman Landscape and Lighting District No. 1
01236.0105/768749.2
This covenant and agreement is by and between the City of Kerman, a general law city (“City”), and JOSEPH CROWN CONSTRUCTION AND DEVELOPMENT, INC., a California corporation (“Covenantor”) located at 5320 E. Pine, Fresno, CA 93727, 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 163, inclusive, of the Final Map of Tract No. 6447, according to the map thereof recorded on , 20 in Volume of
Plats at Page(s) , Fresno County Records
B. A condition of approval of Vesting Tentative Subdivision Map 2023-02 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-of-way 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. 24-79 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 Vesting Tentative Subdivision Map 2023-02.
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, encumbered, used, occupied, developed, maintained, and improved subject to the following 459
Section 7, Item A.
Covenant Regarding Land Development for the Final Map of Tract No. 6447
Kerman Landscape and Lighting District No. 1
01236.0105/768749.2
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 Vesting Tentative Map No. 6447, 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 Covenant, “attorneys’ fees” and “legal expenses” include, without limitation, paralegals’ fees and 460
Section 7, Item A.
Covenant Regarding Land Development for the Final Map of Tract No. 6447
Kerman Landscape and Lighting District No. 1
01236.0105/768749.2
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.
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461
Section 7, Item A.
Covenant Regarding Land Development for the Final Map of Tract No. 6447
Kerman Landscape and Lighting District No. 1
01236.0105/768749.2
IN WITNESS WHEREOF, the parties duly executed this Covenant.
City: Covenantor:
CITY OF KERMAN
a Municipal Corporation
By: _______________________________
John Jansons,
City Manager
JOSEPH CROWN CONSTRUCTION AND
DEVELOPMENT, INC.,
a California Corporation
By: ________________________________
Joseph Donald Crown,
President
ATTEST:
By: _______________________________
Josie Camacho,
City Clerk
Date: ______________________________
(Attach Notary Acknowledgments)
APPROVED AS TO FORM:
By:
Hilda Cantu Montoy,
City Attorney
462
Section 7, Item A.
Covenant Regarding Land Development for the Final Map of Tract No. 6447
Kerman Landscape and Lighting District No. 1
01236.0105/768749.2
Exhibit ‘A’
General Depiction of the Subject Property
463
Section 7, Item A.