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Home My WebLink AboutT-5983 - Agreement/Covenant - 7/15/2011 (5) WHEN RECORDED MAIL TO: 0711512011 ,20110093057 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO LL O Public Utilii:ies Department OSolid Waste Management Division V W U) a W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT PROVIDING SPECIAL SOLID WASTE DISPOSAL SERVICES FOR CERTAIN LOTS WITHIN FINAL MAP OF TRACT NO. 5983, PHASE-1 OF VESTING TENTATIVE MAP NO. 5983 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5983 Page 2 RECITALS WHEREAS, 5983 ENTERPRISES, LP, a California Limited 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 follows: Lots 8 and 9, and Outlot E, of the Final Map of Tract No. 5983 according to the map thereof recorded on .-Z&A/ !s 20/ in Volume Z2 of Plats at Page(s) f 11ru .457, 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. 5983 was approved with conditions by the Fresno City Planning Commission on December 15, 2010; and WHEREAS, the conditions of approval of said Tentative Map require the City of Fresno ("City") to provide solid waste disposal services; and WHEREAS, the design of Phase 1 of the Final Map of Tract No. 5983, filed pursuant to said Tentative Map, affects the accessibility to the Subject Property and prevents normal curbside solid waste disposal services to be provided by the City; and WHEREAS, the Covenantor requests the City to provide special solid waste disposal services to the Subject Property. Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5983 Page 3 COVENANTS, CONDITIONS, AND RESTRICTIONS For favorable action on, and approval of the Covenantor's request that the City provide special solid waste disposal services, 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 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 heirs, administrators, successors, and assigns. 1. Covenantor hereby covenants as follows: (A) The owners, lessees other tenants of the residential dwellings on service days before 5:30 a.m. for Lots 8 and 9 shall place their solid waste containers at the edge of curb on or about the north property line of and in front of Outlot E approximately 4-feet apart and not blocking any vehicle accesses and in accordance with the City's Solid Waste Management Division standards. (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 restriction on solid waste services 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 Statement of Covenants - Special Solid Waste Disposal Services Final Map of Tract No. 5983 Page 4 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 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 Director of the Public Utilities Department 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 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5983 Page 5 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 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 Special Solid Waste Disposal Services Final Map of Tract No. 5983 Page 6 DATED: �NC :?0926,11 CITY OF FRESNO, COVENANTOR a Municipal Corporation 5983 ENTERPRISES, LP, Public Utilities Department a California Limited Partnership By: WILDEV, INC., a California Corporation its General Partner By:_ // Robert N. Andersen, Assistant Director Leo A. , President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney (Attach Notary Acknowledgment) By: Sha no Chaffin ty Attorney �D Date: Z 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 COMM. #1864607 NOTARY PUBLIC•CALIFORNIA �� FRESNO COUNTY *My Comm.Expires 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 Robert N. Andersen, Assistant Director of the Department of Public Utilities 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 A o f FRF o By 00 7 r rr z O � D ty 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 Providing Special Solid Waste Disposal Services for Certain Lots Within Final Map of Tract No. 5983, Phase 1 of Vesting Tentative Map No. 5983. DATED: -V NE 2 ZO// BENEFICIARY Housing Capital Company A Minnesota partnership By: DFP Financial, Inc. a California Corporation Its Managing General Partner r By: Name: Gari F gwansnn Title: Virg- Pregident 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. PATRICIA L. GAVELLO COMM. #1864607 NOTARY PUBLIC-CALIFORNIA : r FRESNO COUNTY y My Comm.Expires October 9,2013 Signature of Notary Public