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HomeMy WebLinkAboutT-5914 - Agreement/Covenant - 9/15/2014 (4) WHEN RECORDED MAIL TO: 09/12/2014,20140100919 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO 0 Development and Resource Management Department Z a 0 W U) 4 W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT RELINQUISHING ACCESS RIGHTS FOR CERTAIN LOTS WITHIN THE FINAL MAP OF TRACT NO. 5914 Statement of Covenants Affecting Land Development Relinquishing Access Rights Tract No. 5914 Page 2 RECITALS WHEREAS, HERNDON/HAYES NO. 1, LLC, a California 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 follows: Lot 1 and Outlot A, of the Final Map of Tract No. 5914 according to the map thereof recorded on � PT�M 12,204 in Volume U' of Plats at Page(s) Z filtPyeJG1{ Z�j Fresno County Records; and 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, Vesting Tentative Map No. 5914 (Tentative Map) was approved with conditions by the Fresno City Planning Commission on March 5, 2008; and WHEREAS, the conditions of approval of said Final Map of Tract No. 5914, filed pursuant to said Tentative Map, require the relinquishment of access rights from said Lot 1 to said Outlot A and from said Outlot A to said Lot 1; and WHEREAS, the Covenantor requests the City of Fresno ("City") to approve the Final Map of Tract No. 5914 subject to the relinquishment of access rights for the Subject Property. COVENANTS, CONDITIONS, AND RESTRICTIONS For favorable action on, and approval of the Covenantor's request, the Covenantor Statement of Covenants Affecting Land Development Relinquishing Access Rights Tract No. 5914 Page 3 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 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 covenants as follows: (a) Covenantor relinquishes access rights from said Lot 1 to said Outlot A and relinquishes access rights from said Outlot A to said Lot 1. (b) The Covenants, Conditions and Restrictions (CC&R) and the Real Estate Disclosure Report shall provide notice to the owners of the Subject Property of such relinquishment of access rights and owners shall provide written notice to each lessee, tenant and subsequent buyer that such restriction exist. 2. The conditions of this Statement of Covenant are intended to benefit the public and public properties. Accordingly, the City shall have the right to enforce this Statement of Covenant by any legal or equitable means against the Covenantor and such person or persons in actual possession of the Subject Property who directly or who through any agent violate the terms hereof. All obligations of the Covenantor under this Statement of Covenant shall insure solely to the benefit of the City. There are no third party beneficiaries of said obligations nor shall the right of the City be transferable in any manner to any person other than to a successor Statement of Covenants Affecting Land Development Relinquishing Access Rights Tract No. 5914 Page 4 municipal corporation whose geographic boundaries include the Subject Property. 3. The conditions and obligations of this Statement of Covenant shall remain in full force and effect until such time as the City's Development and Resource Management Director issues a written release of such conditions and obligations and records such release in writing with the Fresno County Recorder. 4. 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. 5. 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 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. 6. 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 Statement of Covenants Affecting Land Development Relinquishing Access Rights Tract No. 5914 Page 5 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. Statement of Covenants Affecting Land Development Relinquishing Access Rights Tract No.5914 Page 6 DATED: -Z I>— CITY OF FRESNO, COVENANTOR a Municipal Corporation HERNDON/HAYES NO. 1, LLC, Development & Resource Management A California Limited Liability Company Department Jennifer Clark, Director By: -f By: JeYifellClark, Director Robert A.McCaffr"y, Chief Executive Officer/Manager APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney R By. .,;,Mary Raterman-Doidge Deputy City Attorney Date:— (Attach Notary Acknowledgment) CLERK'S CERTIFICATION State of California ) County of Fresno ) On September 2, 2014 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Jennifer Clark, Director, Development and Resource Management Department, 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 YVONNE SPENCE, CIVIC City Clerk, City of Fresno By Deputy STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On July 28, 2014, before me, Shelle Hartmann, Notary Public, personally appeared, Robert A. McCaffrey, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity on behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public a �� L.S. My Commission xpires: January 1, 2015 Sill i If HAR[e -Wa Corrinlissfon # i + , z 'ag•.x. ' Notary Public C,�Irtr� n,a z Fresno ioi�nty MY Comm. Expires Ian t 2p15 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 7, 2008, in the office of the Fresno County Recorder as Document No. 2008- 0066446 of which the Deed of Trust in by and between: Herndon/Haves No.1, LLC, a California limited liability company; McCaffrey Development, L.P., a California limited partnership; The McCaffrey Group, Inc., a California Corporation as Trustor, Financial Title Company, as Trustee, and U.S. Bank National Association d/b/a Housing Capital Company, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development Relinquishing Access Rights for Certain Lots Within the Final Map of Tract No. 5914. DATED: 7/Z BENEFICIARY By: l Name: Thomas G. Walker Title: Senior Vice President By: Name: Title: (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ------------ State of Califo is Cou t n y of O f) 14-" before me, Data! ere Inser i idame and Title of the office. personally appeared Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(9f whose name( fs/a/b subscribed to the within instrument and ack owledged to me that he/so/tpy executed the same iD his//`r/tXr authorized capacity(i ), and that by his/ r/t it ignature(14 on the LORI NICOLE BEC Commission#2012327 KMAN instrumen the person(, or the entity upon behalf of Z eat. Notary Public-California which the perso.no acted, executed the instrument. Fresno County MY Camra.Expires Mar 15,2017+ 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS MW h nd and official seal. Signature Place Notary Seat Aboveigna re f Public --�---� OPTIONAL - - -- Though the informatlon below is not required bylaw,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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer= Title(s): ❑ Corporate Officer—Title(s): ❑ Partner—E] Limited ❑ General _ ❑ Partner—❑ Limited ❑ General ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91 31 3-24 02•www.NationalNotary.org Item#5907 Reorder:Call7bil-Free 1-800-876-6827