HomeMy WebLinkAboutPM 2008-13 - Agreement/Covenant - 6/3/2013 (3) When Recorded Mail To:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
05 131 12013,20130 011825
NO FEE -GOVERNMENT CODE 6103
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STATEMENT OF COVENANTS AFFECTING
LAND DEVELOPMENT TO CREATE MUTUAL
EASEMENTS AND RECIPROCAL USES FOR
PARCEL MAP NO. 2008-13, PHASE 1 OF
VESTING TENTATIVE PARCEL MAP
NO. 2008-13
Statement of Covenants Affecting Land Development
Parcel Map No. 2008-13
Page 2
WHEREAS, DCTN3 388 FRESNO CA, LLC, a Delaware Limited Liability Company,
hereinafter referred to as"Covenantor," is the owner of the real property situated in the City of Fresno,
County of Fresno, State of California, hereinafter referred to as the "Subject Property" and more
particularly described as follows:
Parcels A through O, inclusive, of Parcel Map No.2008-13 according to
the map thereof recorded in Book of Parcel Maps at
Page(s) - ;';`` Fresno County Records; and
WHEREAS, Covenantor hereby warrants that any and all parties having record title interest in
the Subject Property which may ripen into a fee have subordinated to this instrument and that all such
instruments of Subordination, if any, are attached hereto and made a part of this instrument; and
WHEREAS, Covenantor has developed, or intends to develop the Subject Property with
buildings, structure, parking and parking areas, driveways, driveway approaches, landscaping,
landscape irrigation, water for domestic and fire protection purposes, sanitary sewer disposal, gas,
electric, tele-communication services, solid waste facilities, storm water drainage, emergency
accesses, required walls/fences and other requirements in accordance with the approved Special
Permit application designated as Conditional Use Permit Application No. C-08-172 and any
amendments thereto,hereinafter referred to as"Special Permit,"in such a manner that each parcel of
the Subject Property will be compelled to use portions of other parcels of the Subject Property; and
WHEREAS, the City of Fresno ("City") is unable to find that Parcel Map No. 2008-13 is in
substantial compliance with the Conditions of Approval for Vesting Tentative Parcel Map
No. 2008-13 dated July 7, 2011 ("Tentative Map")until the Covenantor provides assurances that such
improvements and buildings will be constructed and maintained in compliance with the conditions of
approval of the Special Permit,Tentative Map,the California Building Code and the Fresno Municipal
Code.
Statement of Covenants Affecting Land Development
Parcel Map No. 2008-13
Page 3
COVENANTS, CONDITIONS AND RESTRICTIONS
In consideration of the approval and recording of said Parcel Map by the City, Covenantor hereby
covenants that the Subject Property shall be held, conveyed, encumbered, used, occupied,
developed, maintained, and improved subject to the following covenants,conditions,and restrictions,
which are for the purpose of enhancing attractiveness, usefulness, value, and desirability of the
Subject Property, the surrounding property, and the public at large and to minimize possible adverse
effects on the public health, safety, peace, and general welfare. Each of the covenants, conditions,
and restrictions contained in this Statement shall run with the Subject Property and shall be binding
upon and inure to the benefit of each successive owner of the Subject Property and his/her/its heirs,
successors, and assigns.
1. 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 as approved by the City in the
Special Permit, 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.);
e. Access to all buildings and areas for emergency services;
f. Landscaping; walls/fences; solid waste facilities; and
g. Any additional uses pursuant to amendments to the Special Permit approved
by the City.
2. Covenantor represents and warrants it is the sole owner of all parcels located in the
Subject Property. Covenantor shall create mutual easements to enable reciprocal cross access
Statement of Covenants Affecting Land Development
Parcel Map No. 2008-13
Page 4
between and among each parcel of the Subject Property, as a burden and a benefit, to satisfy the
need for cross access for each of the purposes identified in paragraph 1, above. Such mutual
easements shall be created effective upon sale, lease, assignment, transfer, or any other method of
disposing of any ownership interest or estate in the Subject property, by a series of transactions or
otherwise, such that there would no longer be a single person or entity who has a one-hundred
percent(100%)ownership interest in all parcels located in the Subject Property. For the purposes of
this Covenant, a one-hundred percent (100%) ownership interest in all parcels does not include
ownership interests subject to leaseholds or other estates.
3. Any buildings or structures constructed on any parcel of the Subject Property must
comply with the prevailing California Building Code.
4. Covenantor shall maintain all landscaping within the limits of the Subject Property in full
compliance with all applicable provisions of the Fresno Municipal Code.
5. Covenantor shall repair and maintain all components of the fire suppression water
system installed on the Subject Property including but not limited to those components relating to the
underground water supply for the fire suppression system in full compliance with all applicable federal
and state laws and the Fresno Municipal Code.
6. Covenantor shall maintain and repair the improvements and buildings, in such a
manner that will not limit or impair such mutual non-exclusive uses across parcel lines within the
Subject Property, in compliance with the approved Special Permit, Tentative Map, the California
Building Code and the Fresno Municipal Code.
7. As between the City of Fresno and Covenantor, the cost of maintenance and repair of
improvements, utility charges which are not separately metered and billed(including but not limited to
charges for sewer,water, solid waste collection, gas,electric and tele-communication service), shall
Statement of Covenants Affecting Land Development
Parcel Map No.2008-13
Page 5
be the responsibility of the Covenantor.
8. At such time Covenantor or subsequent owner(s) sells or transfers any parcel of the
Subject Property, the owner shall disclose this Statement of Covenant to the buyer and reserve and
except from the deed for the parcel(s), the terms of this Statement of Covenant.
9. The conditions of this Statement of Covenant are intended to benefit the public and
public properties as well as properties appurtenant. Failure to comply with the terms of this Statement
of Covenant may result in the revocation of the Certificate of Occupancy or Special Permit by the City
for use of any Parcel of the Subject property involved. Accordingly, the City shall have the right to
enforce this Statement of Covenant by any legal or equitable means.
10. Each of the covenants, conditions, and restrictions contained in this Statement of
Covenant shall run with the Subject Property and shall be binding on each successive owner of the
Subject Property, his/herlts heirs, representatives, successors, and assigns.
11. If either party is required to commence any proceeding or legal action to enforce or
interpret any term or condition of this Statement of Covenant, the prevailing party in such proceeding
or action shall be entitled to recover from the other party its reasonable attorney's fees and legal
expenses. For the purposes of this Statement of Covenant, "attorneys' fees" and "legal expenses"
include,without limitation,paralegals'fees and expenses,attorneys,consultants fees and expenses,
expert witness fees and expenses,and aft other expenses incurred by the prevailing party's attomeys
in the course of the representation of the prevailing party in anticipation of and/or during the course of
litigation,whether or not otherwise recoverable as"attorneys'fees"or as"costs"under California law,
and the same may be sought and awarded in accordance with California procedure as pertaining to
an award of contractual attorneys' fees.
12. The waiver by either party of a breach by the other of any provision of this Statement of
Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either the
Statement of Covenants Affecting Land Development
Parcel Map No. 2008-13
Page 6
same or a different provision of this Statement of Covenant. No provisions of this Statement of
Covenant may be waived unless in writing and signed by all parties to this Covenant. Waiver of any
one provision herein shall not be deemed to be a waiver of any other provision herein.
13. The conditions and obligations of this Statement of Covenant shall remain in full force
and effect until such time as the Development& Resource Management Director of the City issues a
written release of such conditions and obligations and records such release with the Fresno County
Recorder.
14. The provisions of this Statement of Covenant shall be deemed independent and
severable and the invalidity or partial invalidity or unenforceability of any one provision or portion
thereof shall not affect the validity or enforceability of any other provision hereof. Whenever the
context of the Statement of Covenant so requires, in interpreting this Statement of Covenant, any
gender includes the other genders, the singular includes the plural, and the plural includes the
singular.
15. This covenant shall apply to all of the lots within the Subject Property regardless of any
adjustments to any lot lines or subdivisions within the boundary of the Subject Property.
Statement of Covenants Affecting Land Development
Parcel Map No. 2008-13
Page 7
DATED: M/q l'e' 27-, 2A(3
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
DCTN3 388 FRESNO CA, LLC,
Development & Resource Management a Delaware Limited Liability Company
Department
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By: By:
Mark Scott, Interim Director Manager
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:
Tali olluri-B rbick
Deputy City Attorney
Date:
(Attach Notary Acknowledgments)
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On May 22, 2013, before me, Cindy Bruer, Deputy City Clerk, personally
appeared Mark Scott, Interim Director of the Development and Resource
Management 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
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California,
County of_l�� I N(or,v6
On i3 before me, 03 Z?Au U.L)FU C,+ 1,11m)K'w 0.)k&i C.-
Date T Here Insert Name and Titl of the Officer
personally appeared zJ �S�
Name(s)of Signer(s)
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who proved to me on the basis of satisfactory
evidence to be the persono) whose nameA) is/o'fe
F subscribed to the within instrument and acknowledged
to me that he/sVelty executed the same in
his/hVr/tVir authorized capacityys), and that by
CAROLYN JEAN GURICH his/hgf/tf�r signature$) on the instrument the
Commission# 1918104 personV), or the entity upon behalf of which the
Notary Public-CeHfornis person acted, executed the instrument.
Los Angeles County
my Comm.Ex ices Jan 16,2015
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
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paragraph is true and correct. )
WITNESS my hand and official seal.
Signature: 644J4_m��
Place Notary Seal Above sie'naVire 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 Docum nt
Title or Type of Document: s ��>✓n l `c.1M,�� ICId���'U �Z '�3
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):
F Individual ❑Individual06
❑ Partner—❑Limited ❑General Top of thumb here ❑Partner—❑Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator [I Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
02009 National Notary Association-NationalNotary.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 to Create Mutual Easements and Reciprocal Uses for Parcel Map
No. 2008-13, Phase 1 of Vesting Tentative Parcel Map No. 2008-13.
DATED: ''t
BENEFICIARY
BANK OF AMERICA, N.A.,
A National Bankinq Association
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By. _ r �-
Chris Jares, S for Vice President
(Beneficiary to prinf/type document
information, Name, Title and attach Notary
Acknowledgment)
ACKNOWLEDGMENT
State of C niia
County of �4 !Ttle� )
On �� 2 Q f 3 before me, G Y`tcta j t VI2t-.vte Z, A O' �� Pu �f
n (insert name and title of the officer)
personally appeared h fr t S re 5
who proved to me on the basis of satisfactory evidence to be the person()whose name*ism
subscribed to the within instrument and acknowledged to me that he/she/tl4ey executed the same in
hisLber/l; &authorized capacity(jeo, and that by his/bedtbeir signature(a) 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. PATRICIA JIMENEZ
COMAA.r 2012515
Monur rukiC
MY�1CbU1�TY
MaMh 16.2011 8 ~
Signature (Seal)