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Home My WebLink AboutT-5932 - Agreement/Covenant - 9/16/2013 (3) WHEN RECORDED MAIL TO: @911317@ 13,'�@ 13013@030 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 OU. CITY OF FRESNO 0 Public Works Department V W U) a LU CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS FOR THE FINAL MAP OF TRACT NO. 5932 STATEMENT OF COVENANTS CFD Maintenance Tract No. 5932 Page 2 RECITALS WHEREAS,CENTEX HOMES,A Nevada General Partnership,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: Lots 1 through 86, inclusive, of the Final Map of Tract No. 5932 according to the map thereof recorded on 2W3 in Voiume 9,3 of Plats at Page(s) -3R. 3q +-140 Fresno County Records; and WHEREAS, the Covenantor hereby warrants that any and all parties having record title interest in the Subject Propertywhich 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, Resolution No. 13063 of the Fresno City Planning Commission conditionally approved Vesting Tentative Map No. 5932, 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. 11. STATEMENT OF COVENANTS CFD Maintenance Tract No. 5932 Page 3 COVENANTS, CONDITIONS AND RESTRICTIONS NOW THEREFORE, it is agreed in consideration of the foregoing and the approval of the final 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. 11. 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 parry 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 STATEMENT OF COVENANTS CFD Maintenance Tract No.5932 Wage 4 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. 8. 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. * w w w STATEMENT OF COVENANTS CFD Maintenance Tract No.5932 Page 5 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation CENTEX HOMES, Public Works Department A Nevada General Partnership Patrick Wiemiiler, Director By: Centex Real Estate Corporation A Nevada Corporation Its Sole Managing Partner By: By: Z__ Scott Mozier, P.E., Assi2tent Director Gregory 46nam, Division Dire for of Land Development APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney (Attach Notary Acknowledgment) By: Talia Kolluri-B rbic Deputy City Attorney Date: $ 1 Cl ( 3/ CLERK'S CERTIFICATION State of California ) County of Fresno ) On August 19 2013 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, P.E., Assistant Director, Public Works 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. 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, CMC City Clerk, City of Fresno `t� e t FRF a • s� V Deputy 14.,fD ops.�� ACKNOWLEDGEMENT STATE OF CALIFORNIA } )SS. COUNTY OF PLACER ) On July 11 2013, before me, Chris A. Downum Notary Public,personally appeared GREGORY VAN DAM who proved to me on the basis of satisfactory evidence to be the persoVzY4hose nam srafe-subscribed to the within instrument and acknowledged to me that he/ke,tey executed the same idhis/�erMiL4authorized capacity(ies), and that bel'his/herlthefr-signatureW on the instrument the persons);or entity upon behalf of which the person�#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. jCHRIS A. DOWNUM Commission # 1903936 l Notary Public-California z Z Placer County a M Comm.Ex ires Oct 10,2014 Qlo Notary Seal OPTIONAL SECTION Title of Document Date of Document No.of Pages Other signatures)not acknowledged notary&xl 1 EXHIBIT A Covenanter's Initial Date NOTICE OF SPECIAL TAX CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11, COUNTY OF FRESNO, STAE OF CALIFORNIA TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS: Final Tract Map No. 5932, 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 $538.87/lot during the 2013-2014 tax year(valid through June 30, 2014.) The maximum special tax shall be adjusted annually by+3% plus the increase, 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: Maintenance of landscaped areas within the public street and landscape easements; concrete curbs and gutters, sidewalks and curb ramps, sidewalk through paseo between lots 39 and 40,fronting East Tulare Street, East Fancher Creek Drive and South Sunnyside Avenue, as associated with Final Tract Map No. 5932. The median islands in East Tulare Street, East Fancher Creek Drive and South Sunnyside Avenue are the responsibility of the adjacent tract, Final Tract Map No. 5232. Maintenance of all interior concrete curbs and gutters, valley gutters, sidewalks, curb ramps and entrance median curbs, street signage and street lighting as associated Final Tract Map No. 5932. 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 FORMATION WHICH AUTHORIZED CREATION OF THE COMMUNITY FACILITIES DISTRICT NO. 11, ANNEXATION 49 AND WHICH SPECIFIES MORE PRECISELY HOW THE SPECIAL TAX IS APPORTIONED AND HOW THE PROCEEDS OF THE 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: