The URL can be used to link to this page

Home My WebLink AboutT-5995 - Agreement/Covenant - 9/8/2011 (4) WHEN RECORDED MAIL TO: City Clerk 0910812011 70110118665 City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO M Public Utilities Department ZSolid Waste Management Division O 0 W w J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT PROVIDING SPECIAL SOLID WASTE DISPOSAL SERVICES FOR CERTAIN LOTS WITHIN FINAL MAP OF TRACT NO. 59955 PHASE-2 OF VESTING TENTATIVE MAP NO. 5983 r Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5995 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 1 through 11, inclusive, Lots 18 through 25, inclusive, Lots 41 through 44, inclusive, and Outlots C through E, inclusive, of the Final Map of Tract No. 5995 according to the map thereof recorded onin Volume ;9.;1. of Plats at Page(s) 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 2 of the Final Map of Tract No. 5995, 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. 5995 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 6 through 11 shall place their solid waste containers at the edge of curb on the north property line of and in front of Outlot D approximately 4-feet apart and not blocking any vehicle accesses and in accordance with the City's Solid Waste Management Division standards. (B) The owners, lessees other tenants of the residential dwellings on service days before 5:30 a.m. for Lots 18 through 21 shall place their solid waste containers at the edge of curb on the east property line of and in front of Lots 22 through 25 approximately 4-feet apart and not blocking any vehicle accesses and in accordance with the City's Solid Waste Management Division standards. (C) The owners, lessees other tenants of the residential dwellings on service Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5995 Page 4 days before 5:30 a.m. for Lots 41 through 44 shall place their solid waste containers at the edge of curb on the south 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. (D) The owners, lessees other tenants of the residential dwellings on service days before 5:30 a.m. for Lots 1 through 5 shall place their solid waste containers at the edge of curb on the north property line of and in front of Outlot C approximately 4-feet apart and not blocking any vehicle accesses and in accordance with the City's Solid Waste Management Division standards. (E) 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 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 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5995 Page 5 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 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. 5995 Page 6 DATED: V S-T- ZS CITY OF FRESNO, COVENANTOR a Municipal Corporation 5983 ENTERPRISES, LP, Public Utilities Department a California Limited Partnership Patrick Wiemiller, Director By: WILDEV, INC., a California Corporation its General Partner By: By: Robert N. ndersen, Assistant Director Leo A. n, President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney (Attach Notary Acknowledgment) By: h n Chaffin Dep City Attorney Date: �� l CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On July 29, 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 CD@MY NOTARY PUBLIC-CALIFORNIA ~ FRESNO COUNTY ` Comm.E>iPIAS 000b.eerr 9,2013 Signature of Notary Public CLERK'S CERTIFICATION State of California ) County of Fresno ) On August 29, 2011 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Robert N. Andersen, Assistant Director, Public Utilities 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 REBECCA E. KLISCH, CMC City Clerk, City of Fresno G�41 O F f'*,, w By Deputy PWD 0o.,' 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. 5995, Phase 2 of Vesting Tentative Map No. 5983. DATED: zdf/ BENEFICIARY Housing Capital Company A Minnesota partnership By: DFP Financial, Inc. a California Corporation Its Managing General Partner By: Name: Carl F. Swanson Title: Vice President By: Name: Title: (attach Notary Acknowledgements) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On August 1, 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. UAVELLO COMM. #1864607 NOTARY PUBLIC-CALIFORNIA ~ FRESNO COUNTY 12 My Comm.Expires October 9,2013 Signature of Notary Public