HomeMy WebLinkAboutT-5983 - Agreement/Covenant - 7/15/2011 (3) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, Ca 93721-3603 07/15/Z011 Z0110Q93Q7@
NO FEE-Government Code 6103
cc
Q CITY OF FRESNO
z Public Works Department
p Fire Department
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N P.W. File No. 11570
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STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT FOR PRIVATE STREET FACILITIES TO
PROVIDE ACCESS FOR EMERGENCY AND SOLID
WASTE SERVICES BENEFITING CERTAIN LOTS OF
THE FINAL MAP OF TRACT NO. 5983, PHASE-1 OF
VESTING TENTATIVE MAP NO. 5983
STATEMENT OF COVENANTS
2nd Point of Access
Final Map of Tract No. 5983
Page 2
RECITALS
WHEREAS, 5983 ENTERPRISES, LP, a California Limited Partnership, a
California Limited Partnership, hereinafter designated and called the "Developer," shall
hereinafter collectively and individually, where applicable, shall be jointly designated and
referred to as the "Covenantor," hereinafter referred to as the "Subject Property" and more
particularly described as follows:
Outlot O, of the Final Map of Tract No. 5983 according to the map thereof
recorded on 1111V IJr , 20JJ__ in Volume&Z of Plats at
Page(s)L�, 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, The Fresno City Planning Commission on December 15, 2010 conditionally
approved Vesting Tentative Map No. 5983 and Conditional Use Permit Application No. C-10-
195 for a 159-lot gated private street planned development and 3-commercial lots (Project), said
tentative map and special permit are on file in the office of the Planning Section, Development
Services Division of the Development and Resource Management Department which are
incorporated by reference and made a part of this Statement of Covenant; and
WHEREAS, the approved Project provides necessary emergency access facilities and
private street access for the delivery of City solid waste services; and
WHEREAS, the Covenantor has elected to phase the development of the Project by
filing multiple final maps; and
STATEMENT OF COVENANTS
2nd Point of Access
Final Map of Tract No. 5983
Page 3
WHEREAS, the conditions of approval for certain lots (i.e., Lots 1 through 65, inclusive
and Outlots A through L, inclusive) of the Final Map of Tract No. 5983, Phase-1 of Vesting
Tentative Map No. 5983 hereinafter referred to as the "Phase-1 Map," requires the construction
and maintenance of a second point of access for emergency services purposes and adequate
vehicular access for solid waste operations; and
WHEREAS, the design of the Phase-1 Map creates interim dead-end private street
segments within the Phase-1 Map and segregates the planned second point of emergency
access situated on the Subject Property from the Phase-1 Map until such time as the private
street facilities within the Subject Property are constructed in accordance with the conditions of
approval for Vesting Tentative Map No. 5983 and Conditional Use Permit Application No. C-10-
195 dated December 15, 2010 on file in the office of the Planning Division of the Development
and Resource Management Department which are incorporated by reference and made a part
of this Statement of Covenant; and
WHEREAS, the design of the Phase-1 Map does not provide a second point of access
for emergency services vehicles and does not provide adequate access for solid waste vehicles
to enable the delivery of emergency services and solid waste services to certain lots of the
Phase-1 Map; and
WHEREAS, the completion of the private street facilities within the Subject Property in
accordance with the conditions of approval for said Vesting Tentative Map and Conditional Use
Permit Application in conjunction with completion of the private street facilities for certain lots
(i.e., Lots 1 through 65, inclusive and Outlots A through L. inclusive) within the Phase-1 Map
provides the means to deliver such services to the Phase-1 Map; and
WHEREAS, the Covenantor and the City of Fresno ("City") desire to enter into an
agreement to provide private street facilities on the Subject Property to provide a second point
of emergency access and solid waste services for said certain lots of the Phase-1 Map.
STATEMENT OF COVENANTS
2nd Point of Access
Final Map of Tract No. 5983
Page 4
COVENANTS, CONDITIONS, AND RESTRICTIONS
The 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, desirability, and safety 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 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 during his ownership thereof.
1. The Covenantor agrees that the Subject Property shall be used for private street
purposes by the City to provide emergency and solid waste services to the Phase-1 Map.
The Covenantor agrees to construct and maintain such private street facilities on the Subject
Property and grants to the City the right to enter upon the Subject Property for purposes of
inspection and to regulate the use of and access over the Subject Property. The Covenantor
agrees that the private street facilities within the Subject Property shall be constructed in
accordance with the conditions of approval for said Vesting Tentative Map No. 5983 and
Conditional Use Permit Application. C-10-195.
2. The private street facilities shall be constructed and completed prior to the
issuance of building permits for lots within the Map. The design of the private street facilities,
including any related improvements and work, shall conform to Public Works Department
Standard Specifications and Drawings and shall meet minimum standards for a local street,
including turning radiuses, or in conformance with an approved engineered design for the
untended use. The work shall be constructed pursuant to a Street Work Permit issued by the
Public Works Department.
3. This Statement of Covenant shall in no way be construed as a grant by the City
of any rights to the Covenantor to trespass upon land rightfully in the possession of, or owned
STATEMENT OF COVENANTS
2nd Point of Access
Final Map of Tract No. 5983
Page 5
by another, whether such land be privately or publicly owned.
4. The City shall not be liable to the Covenantor or to any other person, firm or
corporation whatsoever, for any injury or damage that may result to any person or property by or
from any cause whatsoever in, on or about the Subject Property of said land covered by this
Statement of Covenant, or any part thereof. The Covenantor hereby releases and agrees to
indemnify, defend and save the City, it's employees and agents harmless from and against any
and all injuries to and deaths of persons, and all claims, demands, costs, loss damage and
liability, howsoever same may be caused, resulting directly or indirectly from the performance of
any or all work to be done in and upon the street rights-of-way and said Subject Property and
upon the premises adjacent thereto pursuant to this Statement of Covenant, and also from all
injuries to and deaths of persons, and all claims, demands, costs, loss, damage and liability,
howsoever same may be caused, either directly or indirectly made or suffered by the
Covenantor, the Covenantor's agents, employees and subcontractors, while engaged in the
performance of said work. The Covenantor further agrees that the use for any purpose and by
any person of any and all of the street facilities and improvements hereinbefore specified, shall
be at the sole and exclusive risk of the Covenantor at all times prior to the release by the City of
the street facilities and other improvements thereon and therein.
5. The conditions of this Statement of Covenant are intended to benefit both the
Subject Property, the public and public properties. Accordingly, it is agreed 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.
6. The foregoing conditions and obligations of this Statement of Covenant shall
remain in full force and effect until such time as the Public Works Director issues a written
release of such conditions and obligations and records such release with the Fresno County
Recorder. Such release will be conditioned on the removal of the temporary street facilities in
the manner acceptable to the City Engineer. The Covenantor agrees to reimburse the City for
reasonable costs associated with the preparation and recordation of said release.
STATEMENT OF COVENANTS
2nd Point of Access
Final Map of Tract No. 5983
Page 6
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 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.
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.
9. 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 enforce ability 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
2nd Point of Access
Final Map of Tract No. 5983
Page 7
DATED: 6 --30, 1 (
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
5983 ENTERPRISES, LP,
Public Works Department a California Limited Partnership
Patrick Wiemiller, Director
By: WILDEV, INC.,
a California Corporation
its General Partner
By:
Scott Mozier, P.E., Assi pant Director
By:
Leoi son, President
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
F
By.
n Chaffin
eput i Attorney
Date: t22ff r�
(Attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
On May 25, 2011 before me, Patricia L. Gavello, Notary Public, personally appeared Leo A. Wilson, 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 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.
PATRICIA L. GAVELLO
60 COMM. #1864607
NOTARY PUBLIC•CALIFORNIA w
FRESNO COUNTY �(�
Comm,EM ire%October 9,2013
Signature of Notary Public
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On July 01, 2011, before me, Stacey Woo, Deputy City Clerk, personally appeared
Scott Mozier, P.E. Assistant Director of the City of Fresno, 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 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.
REBECCA E. KLISCH. CMC
CITY CLERK, City of Fresno
/ y o� FR s
,ty6
By 71
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SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on June 23, 2011 in the office of the Fresno
County Recorder as Document No. 2011-0083665-00 of which
the Deed of Trust in by and between: 5983 Enterprises LP, a California limited partnership,
as Trustor, First American Title Company, as Trustee, and Housing Capital Company, a
Minnesota partnership, as Beneficiary, hereby expressly subordinates said Deed of Trust and its
beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development
for Private Street Facilities to Provide Access for Emergency and Solid Waste Services
Benefiting Certain Lots of the Final Map of Tract No. 5983, Phase-1 of Vesting Tentative Map
No. 5983.
DATED:
BENEFICIARY
Housing Capital Company
A Minnesota partnership
By: DFP Financial, Inc. a California
Corporation
Its Managing General Partner
By:
Name: Carl F Swan-qnn
Title: Vire PrPcicJPnt
By:
Name:
Title:
(attach Notary Acknowledgements)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Fresno
On June 24, 2011 before me, Patricia L. Gavello, Notary Public, personally appeared Carl F. Swanson, 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 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.
OPATRIIACL. GAVELLQ
COMM. #1864607
NOTARY PUBLIC-CALIFORNIA
FRESNO COUNTY
NN Comm.Expires October 9,2013
Signature of Notary Public