HomeMy WebLinkAboutPM 2004-10 - Agreement/Covenant - 5/21/2007 v
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When Recorded Mail To:
FRESNO County Recorder
City Clerk Robert C, Werner
City of Fresno DOC— 2007-0074593
2600 Fresno Street
Fresno, CA 93721-3603 Acct 5-First American Title Insurance Company
Friday, APR 13, 2007 08:00:00
NO FEE-GOVERNMENT CODE 6103 Tt1-Pd $0.00 Nbr-0002479196
DJG/R6/4-20
CITY OF FRESNO
Planning and Development Department
STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT TO CREATE MUTUAL
EASEMENTS AND RECIPROCAL USES FOR
PARCEL MAP NO. 2004-10
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STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 2
WHEREAS, FRESNO RENAISSANCE SPE, LLC, a California Limited Liability Company
and BURNHAM LAKE FOREST ASSOCIATES, L.P., a California Limited Partnership,
hereinafter referred to as the "ABCD Owner", is the owner of the real property situated in the
City of Fresno, County of Fresno, State of California, hereinafter referred to as the "ABCD
Property" and more particularly described as follows:
Parcels A, B, C and D of Parcel Map No. 2004-10, according to the
map thereof recorded in Book4 of Parcel Maps at
Page(s) Fresno County Records; and
WHEREAS, TCB Investments, LLC, a California Limited Liability Company, hereinafter
referred to as."TCB" is the owner of the real property situated in the City of Fresno, County of
Fresno, State of California, hereinafter referred to as the "TCB Property" and more particularly
described as follows:
Parcels 2 of Parcel Map No. 5357, according to the map thereof
recorded in Book 33 of Parcel Maps at Page 87,
Fresno County Records; and
WHEREAS, HAB Investments, LLC, a California Limited Liability Company, hereinafter
referred to as "HAB", is the owner of the real property situated in the City of Fresno, County of
Fresno, State of California, hereinafter referred to as the "HAB Property" and more particularly
described as follows:
Parcel 1 of Parcel Map No. 5529, according to the map thereof
recorded in Book 34 of Parcel Maps at Page 73,
Fresno County Records; and
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STATEMENT OF COVENANTS
ToiCreate Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 3
WHEREAS, the ABCD Owner, HAB and TCB shall be collectively referred to herein as
the "Owners" and generically individually as "Owner" and the ABCD Property, HAB Property
and TCB Property shall be collectively referred to herein as the "Subject Property."
WHEREAS, the Owners 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, the Subject Property was developed 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 such a manner that each parcel of the Subject
Property is compelled to use portions of other parcels of the Subject Property; and
WHEREAS, the City of Fresno is unable to find that Parcel Map 2004-10 is in
substantial compliance with the Conditions of Approval for Tentative Parcel Map 2004-10 dated
July 7, 2004 ("Tentative Map") until the Owners provide assurances that such improvements
and buildings will be maintained in compliance with the conditions of approval of the Tentative
Map, the California Building Code and the Fresno Municipal Code.
COVENANTS, CONDITIONS AND RESTRICTIONS
In consideration of the approval and recording of said Parcel Map by the City of Fresno,
Owners hereby covenant that the Subject Property shall be held, conveyed, encumbered, used,
occupied, developed, maintained, and improved subject to the following covenants, conditions,
STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
Fo Parcel Map No. 2004-10
Page 4
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 or her heirs, successors, and assigns.
1. Each parcel of the Subject Property shall be developed and used in such a
manner as to enable reciprocal cross access between and among the parcels, regardless of
whether the parcels of the Subject Property are owned or leased by the same or different
persons 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.);
d. Access to all buildings and areas for emergency services;
e. Landscaping; walls/fences; solid waste facilities; and
f. Any additional uses pursuant to amendments to the Special Permit
approved by the City.
2. Mutual easements appurtenant are. hereby created and apply to each parcel of
the Subject Property as a burden and benefit, to satisfy the need for cross access.
3. Each Owner does hereby establish in favor of, and grants to the other Owners,
irrevocable non-exclusive easements for the ingress and egress and for the passage and
parking of motor vehicles into, out of, on, over, and across all parking areas, driveways and
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STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 5
traffic aisles from time to time established within the Subject Property as provided in this
Statement so that such portions of the Subject Property may be used as an integrated area by
the Owners and their permittees.
4. Each Owner does hereby establish in favor of, and grants to the other Owners,
irrevocable non-exclusive easements for the ingress and egress and passage of pedestrians
into, out of, on, over, and across sidewalks, pedestrian walkways and parking areas from time
to time established from time to time so that such portions of the Subject Property may be used
as an integrated area by the Owners and their permittees.
5. Each Owner does hereby establish in favor of, and grants to the other Owners,
irrevocable non-exclusive easements under, through and across the common areas within the
Subject Property for the installation, operation, maintenance, repair and replacement of water
drainage systems or structures, water mains, sewers, water sprinkler system lines, telephones,
electrical conduits or systems, gas mains, other public or private utilities and access to buildings
and common areas for emergency services. All such systems, structures, mains, sewers,
conduits, lines and other utilities shall be installed and maintained below the ground level or
surface of such easements except for ground mounted electrical transformers and such other
facilities as are required to be above ground by the utility providing such service (including
temporary service required during the construction, maintenance, repair, replacement, alteration
or expansion of any buildings or improvements ]ocated in the Subject Property). The
installation, operation, maintenance, repair and replacement of any such easement facility shall
not unreasonably interfere with the use of the improved driveway and parking areas or with the
normal operation of any business in the Subject Property. Any Owner installing, replacing
and/or maintaining said easement facilities shall repair to the original specifications any damage
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STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 6
to the driveway and parking areas resulting from such use and any such Owner installing and/or
replacing said easement facility shall provide as-built plans for all such easement facilities to the
Owners requesting same within thirty (30) days of such request. At any time and from time to
time any Owner shall have the right to relocate on its Parcel any utility line or facility installed
pursuant to the foregoing grant of easement which is then located on the land of such Owner,
provided that any such relocation (1) shall be performed only after sixty (60) days notice of the
Owner's intention to undertake the relocation shall have been given to the other Owners with
respect to the other Parcel or Parcels, if any, served by the utility line or facility, (ii) shall not
unreasonably interfere with or diminish utility service to any other Parcel served by the utility line
or facility, (iii) shall not reduce or unreasonably impair the usefulness or function of the utility line
or 'facility, (iv) shall be performed without cost or expense to the other Owners, and (v) shall
provide for the original and relocated area to be restored to the original specifications. In the
event any Owner requires an easement in favor of a governmental agency or utility company
and such agency or company requires the Owner over which such easement is affected to enter
into an easement agreement and/or grant such an easement, the Owner affected shall grant
any grant of easement or easement agreement reasonably requested by such agency or
company. The Owner or Owners performing such relocation shall provide as built plans for all
such relocated utility lines and facilities to the other Owners requesting same within thirty (30)
days of such request. In addition, said Owner shall indemnify, defend and hold the other
Owners harmless from any and all liability, costs, claims, damages, expenses (including
reasonable attorneys' fees and reasonable attorneys' fees on any appeal), liens, claims of lien,
judgments, proceedings and causes of action arising out of or in any way connected with the
performance of such work by or under the authority of said Owner, unless caused by the
negligence or willful act or omission of the indemnified party, or its permittees.
STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 7
6. Each Owner agrees to execute such additional easements as are reasonably
required by any public or private utility for the purpose of providing utilities described herein,
provided such easements are not otherwise inconsistent with the provisions of this Statement.
7. Any buildings or structures constructed on any parcel of the Subject Property
must comply with the prevailing California Building Code.
8. Owners shall maintain and repair the improvements and buildings on the portion
of the Subject Property owned by such Owner, 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 Tentative Map, the California Building Code and the Fresno Municipal Code.
9. 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
Owners on a pro rata basis based upon the relative floor area of building improvements on the
Owner's parcel unless otherwise agreed between the property owners of each parcel of the
Subject Property by written agreement.
10. At such time any Owner or subsequent owner(s) sells or transfers any parcel of
the Subject Property, the Owner shall disclose this Statement to the buyer and reserve and
except from the deed for the parcel(s), the terms of this Statement.
11. The conditions of this Statement are intended to benefit the public and public
properties as well as properties appurtenant. Failure to comply with the terms of this Statement
may result in the revocation of the Certificate of Occupancy for use of any Parcel of the Subject
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S IATEMENT OF COVENANTS
Tol Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 8
property on which such violation occurs. Accordingly, the City of Fresno shall have the right to
en orce this Statement by any legal or equitable means.
12. Each easement, restriction and covenant contained herein shall be appurtenant
to and for the benefit of all portions of the Subject Property and shall be a burden thereon for
the benefit of all portions of the Subject Property, and shall run with the land, and be
enforceable as an equitable servitude. Each covenant to do or refrain from doing some act on
the property of the covenanter (1) is for the benefit of the land of the covenantee, (ii) runs with
the land of the covenanter and of the covenantee, and (iii) shall benefit or be binding upon each
successive Owner, during its ownership of any portion of the land affected hereby and each
person having any interest herein derived through any Owner of the land affected hereby. This
Statement and the restrictions, easements, covenants, benefits and obligations created hereby
shall inure to the benefit of and be binding upon the Owners and their respective successors,
transferees and assigns; provided, however, that if any Owner, transfers any portion or all of its
interests in the Subject Property such that the transferee becomes an Owner, the transferor
shall thereupon be released and discharged from any and all obligations under this Statement,
as such Owner, in connection with the interests transferred by it, but only as to such obligations
accruing and to be performed from and after the date of such transfer; it being understood that
such transfer does not release obligations accrued prior or to such transfer.
13. No breach of this Statement shall entitle any Owner or any other Person to
cancel, rescind or otherwise terminate this Statement, but such limitation shall not affect in any
manner any other rights or remedies which such Owner, or any tenant may have hereunder by
reason of any breach of this Statement. Any breach of any of said covenants or restrictions,
however, shall not defeat or render invalid the lien of any mortgage or deed of trust made in
STATEMENT OF COVENANTS
Tol Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Paige 9
good faith for value, but such covenants or restrictions shall be binding upon and effective
against the Owner of any of said property or any portion thereof whose title thereto is acquired
by foreclosure, trustee sale or otherwise. No modification, amendment or termination of this
Statement shall be binding upon or affect the rights of any lender holding a mortgage or deed of
trust upon the interest of any Owner in and to any Parcel that is recorded prior to the date any
such modification, amendment or termination is recorded in such office, without the approval of
such lender.
14. The conditions and obligations of this Statement shall remain in full force and
effect until such time as the Planning and Development Director of the City of Fresno issues a
written release of such conditions and obligations and records such release with the Fresno
County Recorder.
15. 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. 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.
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STATEMENT OF COVENANTS
To Create Mutual Easements and Reciprocal Uses
For Parcel Map No. 2004-10
Page 10
DATED: 31
CITY OF FRESNO, OWNER
a Municipal Corporation
FRESNO RENAISSANCE SPE, LLC,
a California limited liability company
By
By:
Keith Bergthold, Acting Director Scott T. Burnham, Manager
Planning and Development Department (Attach Notary Acknowledgm ts)
BURNHAM LAKE FOREST ASSOCIATES,
L.P., a Califor is limited p rtnership
By;
APPROVED AS TO FORM:
JAMES C. SANCHEZ TCB Investments, L , a California limited
City Attorney liability company
By:
BY Scott T. B Wham, Ma\Calirnia
Deputy
HAB Inv
e tments, LLC, a limited
liability c mpany
By:
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S ott T. Burnham, Manager
(07 DATED: 3 1
CITY OF FRESNO,
a Municipal Corporation OWNER'
FRESNO RENAISSANCE SPE, LLC,
a California limited liability company
By By:_
� t1r.� -✓'�
Nick P Yovino irector
Planning a Development Department Scot T. Burnham, Manager
(Attach Notary Acknowledgments)
BURNHAM LAKE FOREST
ASSOCIATES, L.P., a California limited
partnership, by BURNHAM USA EQUITIES, INC. ,
'a California corporation
APPROVED AS TO FORM:
By,
JAMES C. SANCHEZ Scm Burnham, -President and Secretary
Cita_... . . . _
y Attorney
TCB Investments, LLC, a Califomia limited
liability company
eputy By.
Sco urnham, Manager
HAB Investments, LLC, a Califomia limited
liabilit ;mpany
By:
Scott T. Burnham,Manager
State of California }
}
County of Orange
IVO��Y �J6/►G
On April 26, 2006, before me, Janet Friedrich,1personally appeared Scott T. Burnham,
peirsonally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the
per son(s) acted, executed the instrument.
WITNESS my hand and official seal.
CID=
DRICH
5150
ALIFO� �„'Gf: ' � ntydsY.6,2008
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CLERK'S CERTIFICATION
SITATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO)
Oin March 1, 2007, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno,
personally appeared, Keith Bergthold, Acting Planning and Development Director,
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
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.
REBECCA E. KLISCH
CITY CLERK, CMC
0
By
Deputy
TCB INVESTMENTS,LLC LOAN NO.: 59187
Finan Parcel Kap No. 2004-10 SERVICING NO.: 003205766
P.W.I File No. 5494--2004-10
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on
% , a-r.;r,�- , in the office of Fresno County Recorder as Document No.
of which the Deed of Trust in, by and between:
TCB INVESTMENTS, LLC, as Trustor, PRLAP, INC., as Trustee, and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereto to the foregoing STATEMENT OF CONVENANTS AFFECTING
LAND DEVELOPMENT TO CREATE MUTUAL EASEMENTS AND RECIPROCAL USES FOR
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PARCEL MAP NO. 2004-10.
DAT D: April 7, 2006
BENEFICIARY
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a Delaware stock corporation
(Beneficiary to print/type Name and Title):
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James Lanno
Vice President
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and attach Notary Acknowledgement
North Carolina
fn xr- County
I, 014r„jp "BphA*-' -,a Notary Public for ffwLkJeh6 County,North
Carolina, do hereby certify that—jRrneS / P nr-O personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Witness my hand and official seal,this the !7day of Pori, , 20k1
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OLIMMOWET
NM=V Adft
(Official Seal) WOW"CCU*
lkft of NOAH COyo&w -
MV Ccn~w Am 3.I=
Notary Public
My commission expires D, , 20b i?, .
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Final Parcel Map No. 2004-10
P.W. File No. 5494-2004-10
SUBORDINATION
The 'undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on
October 18, 2002 , in the office of the Fresno County Recorder as
Document No. 2002-0184359 of which the Deed of Trust in,by and between
Burnham Lake Forest Associates L.P. and Fresno Renaissance SPE LLC as Trustor,
PRLAP, Inc.,.as Trustee, and Bank of America, N.A., 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 PARCEL MAP NO. 2004-10.
BENEFICIARY
BANK OF AMERICA, N.A. ,
a national
Qb�annkiinng, aass�ociation
Violet DiMascio
Senior Vice President
it
(Beneficiary to print/type Naive and Title;
and attach Notary Acknowledgment)
ALL-PURPOSE ACKNOWLEDGMENT
State of California )
County of Orange )
On April 20, 2006 before me, Jennifer L. Fondry, Notary Public,personally appeared Violet
DiMascio,personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my han and fficialseal. JENNIFER L. FONDRY
Commisslon# 1439822
Notary Public - California
Orange County
My Comm.En*es Sep 16,2007
(Signature)
(Space above for official notarial seal)
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HAB INVESTMENTS, LLC LOAN NO.: 59186
Final Paircel,Parcel, ag No. 2004-=10 SERVICING NO.: 003205788
N6. 5494-2004--10,
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on
Ge-vo , in the office of Fresno County Recorder as Document No.
of which the Deed of Trust in, by and between:
HAB 'INVESTMENTS, LLC as Trustor, PRLAP, INC., as Trustee, and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereto to the foregoing STATEMENT OF CONVENANTS AFFECTING
LAND DEVELOPMENT TO CREATE MUTUAL EASEMENTS AND RECIPROCAL USES FOR
PARCEL MAP NO. 2004-10.
1
DATED: April 7, 2006
BENEFICIARY
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
a Delpware stackcc -vorati.on
(Beneficiary to print/type Name and Title):
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James Lanno
Vice President
N'
and attach Notary Acknowledgement `
i
North Carolina
�1(�k l,Cn bLtr County
4
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1, ID�hhIQ fSDh , a NotaryPublic for County,North
Carolina, do hereby certify thate°S i4n personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Witness my hand and official seal,this the day of20D.
VOLANDA 90MT
Nobry PubNe
MocUmbuig CourNy
(Official Seal) Skft of NMM CaMOM .
My Gaon Jun 3.ZOOS
Notary Public
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My commission expires d,kn-L DS ,2009
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NOTARY SEAL CLARIFICATION
I certify under penalty of perjury that the "Notary Seal" on the
document to which this statement is attached reads as follows:.
Name of Notary: o lct a.. 2) o C -
Commission Number:
Date commission expires: r.4.. o3 :3 Zoo a
State/ and County •of Commission. �c �y
gL as
Date: 4- to 0-7
/—L,.gnatuL-4 re (Firm name; if any)
Govt. Code. Sec. 27361.7
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