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HomeMy WebLinkAboutPM 2008-13 - Agreement/Covenant - 6/3/2013 WHEN RECORDED MAIL TO: City Clerk City of Fresno 0513112013,20130011823 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 Cc CITY OF FRESNO w- Public Works Department Z O 0 W f/] W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS FOR PARCEL MAP NO. 2008-13, PHASE 1 OF VESTING TENTATIVE PARCEL MAP NO. 2008-13 STATEMENT OF COVENANTS CFD Maintenance Parcel Map No. 2008-13 Page 2 RECITALS WHEREAS, DCTN3 388 FRESNO CA, LLC, a Delaware Limited Liability Company, hereinafter referred to as the "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: Parcels A through O, inclusive, of Parcel Ma No. 2008-13 as recorded in Book; of Parcel Maps at Page(s) I Fresno County Records. WHEREAS, the 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, the Director of the Development and Resource Management Department conditionally approved Vesting Tentative Parcel Map No. 2008-13, hereinafter referred to as the "Tentative Map;" and WHEREAS,a condition of approval of the Tentative Map requires the Covenantor to install and maintain certain improvements within the limits of the Tentative Map, more particularly described in EXHIBIT"A"attached hereto and incorporated by reference as if fully set forth herein; and WHEREAS, a condition of approval of the Tentative Map requires that the maintenance of such improvements shall be the responsibility of the Covenantor,a homeowners association or the City of Fresno's ("City's") Community Facilities District; and WHEREAS, Covenantor has elected to satisfy this maintenance condition by annexing the Subject Property into the City's Community Facilities District; and WHEREAS, Covenantor has requested the City to annex the Subject Property to the City's Community Facilities District No. 9. STATEMENT OF COVENANTS CFD Maintenance Parcel Map No.2008-13 Page 3 COVENANTS, CONDITIONS AND RESTRICTIONS NOW THEREFORE, it is agreed in consideration of the foregoing and the approval of the parcel map for the Subject Property by the City of Fresno, the Covenantor hereby covenants, promises and agrees with the City of Fresno for the benefit of said City that: 1. Such improvements will be designed and installed according to improvement plans prepared by the Covenantor and approved by the Public Works Director. 2. Covenantor shall maintain said improvements in a manner acceptable to the Public Works Director until such time as the City notifies the Covenantor that such maintenance responsibility has been assumed by the City's Community Facilities District No. 9- 3. The Covenantor shall provide to every prospective purchaser of each lot of the Subject Property, the "Notice of Special Tax," attached as EXHIBIT "A," in accordance with the provisions of Section 53341.5 of the California Government Code. 4. It is the intention hereof that this document shall constitute a covenant in favor of the City of Fresno and shall run with the land and be binding upon the undersigned, its grantees, heirs, and successors and assigns. 5. The foregoing conditions shall remain in full force and effect until such time as the Director of the Public Works Department issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 6. The provisions of this Statement of Covenants 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 one provision thereof. Whenever the context of the Statement of Covenants so requires, in interpreting this Statement of Covenants,any gender includes the other genders, the singular includes the plural, and the plural includes the singular. 7. 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 STATEMENT OF COVENANTS CFD Maintenance Parcel Map No.2008-13 Page 4 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. B. The waiver by either party of a breach by the otherof any provision of this Statement of Covenant shall not constitute a continuing waiveror 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. STATEMENT OF COVENANTS CFD Maintenance Parcel Map No. 2008-13 Page 5 DATED: 45 ~ aZ�^ abler CITY OF FRESNO, COVENANTOR a Municipal Corporation DCTN3 388 FRESNO CA, LLC, Public Works Department a Delaware Limited Liability Company Patrick Wiemiller, Director By: By: Scott Mozier, P.E., Asefstant Director Joseph W Manager APPROVED AS TO FORM: DOUGLAS T. SL AN / City Attorney (Attach Notary Acknowledgment) By: v Talia Kolluri-Barbick Deputy City Attorney Date: S ( dij , CLERK'S CERTIFICATION State of California) County of Fresno ) On May 22, 2013, before me, Cindy Bruer, Deputy City Clerk, personally appeared Scott Mozier, P.E. Assistant Director of the Public Works Department of the City of Fresno 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. YVONNE SPENCE. CMC CITY CLERK, City of Fresno y OF FRF D uy n IL o _1i yti' R� F❑Opt' CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 4 F State of California County of I�/ "'�4W L6 On Mf)4 IT, 1d) 13 before me, eA1 OWk)�R�7�rt)R tkl, ND`s R�/ fit.•C� Date ..,� Here Insert Name and Titfe of the Offer T ) personally appeared '1 DSP '1 •g;A F Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(t) whose nameSA is/p?e subscribed to the within instrument and acknowledged to me that he/sKe/tV6y executed the same in his/h9f/tlir authorized capacity(i96), and that by CAROLYN JEAN GURICH his/hof/tF&r signatureV) on the instrument the Commission* 191810, person ] or the entity upon behalf of which the Notary Public-California persons/acted, executed the instrument. Los Angeles County M Comm.E fres Jan 16,2015I f 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 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 Document 11 `` II 11,,,, � pp J��� Title or Type of Document: c� '�'d llMi jh IIA 1�A Ae4t_tn� ,-MA.ri G&,(Lv �Ler� vjrt EY ri ve^y- � "0(-� 11 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): 4 ❑ Individual ❑Individual ❑ Partner—❑Limited ❑General Top of thumb here ❑Partner—❑ Limited ❑General Top of thumb here ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee 1 F ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: 4 Signer Is Representing: Signer Is Representing: ©2009 National Notary Association•National Notary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on March 14, 2013, in the office of the Fresno County Recorder, as Document No.2013-0038454 of which the Deed of Trust in, by and between DCTN3 388 Fresno CA, LLC,as Trustor, PRLAP, as Trustee and Bank of America, NA , Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for the Maintenance of Certain Improvements for Parcel Map No. 2008-13, Phase 1 of Vesting Tentative Parcel Map No. 2008-13. DATED: BENEFICIARY BANK OF AMERICA, N.A., A National Banking Association Chris Jare , Senior Vice President (Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment) ACKNOWLEDGMENT State of California - r County of Lo S ) On Z p !"� before me, 6�r L ct n �I w e/K e z�r �rC (insert name and title of the officer) personally appeared (% who proved to me on the basis of satisfactory evidence to be the person whose name(g) is aW subscribed to the within instrument and acknowledged to me that he/Wie" executed the same in his/be U34Ei 'authorized capacity(je8l, and that by his/befftetr signature(,v) on the instrument the person(sl, or the entity upon behalf of which the person(E 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. PATRICIA JIMENEZ COMM.0 2012515 NOTARY PUK C•CALIFONNA n _ LOS ANGELES COUNTY ani, Signature (Seal) r EXHIBIT A Covenanter's Initial Date NOTICE OF SPECIAL TAX CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 9, COUNTY OF FRESNO, STATE OF CALIFORNIA TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS: Final Parcel Map No. 2008-13, Lot No.: I A.P.N. No.: THIS IS A NOTIFICATION TO YOU PRIOR TO YOUR ENTERING INTO A CONTRACT TO PURCHASE THIS PROPERTY. THE SELLER IS REQUIRED TO GIVE YOU THIS NOTICE AND TO OBTAIN A COPY SIGNED BY YOU TO INDICATE THAT YOU HAVE RECEIVED AND READ A COPY OF THIS NOTICE. (1) This property is subject to a special tax, which is in addition to the regular property taxes and any other charges, fees, special taxes, and benefit assessments on the parcel. It is imposed on this property because it is a new development, and may not be imposed generally upon property outside of this new development. If you fail to pay this tax when due each year, the property may be foreclosed upon and sold. The tax is used to provide public facilities or services that are likely to particularly benefit the property. YOU SHOULD TAKE THIS TAX AND THE BENEFITS FROM THE FACILITIES AND SERVICES FOR WHICH IT PAYS INTO ACCOUNT IN DECIDING WHETHER TO BUY THIS PROPERTY. (2) The maximum special tax which may be levied against this parcel to pay for ongoing maintenance of public facilities is $0.02032266/Square Foot(totaling $39,402.72 annually)during the 2012-2013 tax year(valid through June 30, 2013.) The maximum special tax shall be adjusted annually upward by 3% plus the rise, if any, in the Construction Cost Index for the San Francisco Region for the prior twelve (12) month period as published in the Engineering News Record (as applicable). (3) The authorized facilities which are being paid for by the special taxes, and by the money received from the sale of bonds which are being repaid by the special taxes, are: All landscaping and irrigation systems within the median islands(including reserves),median island maintenance border, concrete cap and trees; All costs attributable to street lighting and two signals located at the private entrances in West Herndon Avenue and North Riverside Drive. All local ground level street infrastructures (including reserves) including, without limitation, street paving, concrete curbs and gutters, valley gutter, curb ramps and sidewalks, street signage and street lighting in North Weber Avenue and the Weber access road. Maintenance of the storm drain facilities in the Weber access road. These facilities may not yet have all been constructed or acquired and it is possible that some may never be constructed or acquired. YOU MAY OBTAIN A COPY OF THE RESOLUTION OF INTENTION WHICH AUTHORIZED CREATION OF THE COMMUNITY FACILITIES DISTRICT NO. 9, ANNEXATION 3 AND WHICH SPECIFIES MORE PRECISELY HOW THE SPECIAL TAX IS APPORTIONED AND HOW THE PROCEEDS OF THE SPECIAL TAX WILL BE USED, FROM THE CITY CLERK'S OFFICE OF THE CITY OF FRESNO BY CALLING (559) 621-7650. THERE MAY BE A CHARGE FOR THIS DOCUMENT NOT TO EXCEED THE REASONABLE COST OF PROVIDING THE DOCUMENT. I (WE) ACKNOWLEDGE THAT I (WE) HAVE READ THIS NOTICE AND RECEIVED A COPY OF THIS NOTICE PRIOR TO ENTERING INTO A CONTRACT TO PURCHASE OR DEPOSIT RECEIPT WITH RESPECT TO THE ABOVE- REFERENCED PROPERTY. I (WE) UNDERSTAND THAT I (WE) MAY TERMINATE THE CONTRACT TO PURCHASE OR DEPOSIT RECEIPT WITHIN THREE DAYS AFTER RECEIVING THIS NOTICE IN PERSON OR WITHIN FIVE DAYS AFTER IT WAS DEPOSITED IN THE MAIL BY GIVING WRITTEN NOTICE OF THAT TERMINATION TO THE OWNER, SUBDIVIDER,OR AGENT SELLING THE PROPERTY. Date: Buyer: Seller: Buyer: