HomeMy WebLinkAboutT-5997 - Agreement/Covenant - 3/1/2012 WHEN RECORDED MAIL TO: 02/29/2012,20120029189
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
NO FEE - Government Code 6103
x CITY OF FRESNO
0 Public Works Department
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STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS
FOR THE FINAL MAP OF TRACT NO. 5997
STATEMENT OF COVENANTS
CFD Maintenance
Tract No. 5997
Page 2
RECITALS
WHEREAS, DE YOUNG PROPERTIES 5581 L.P., 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:
Lots 1 through 8, inclusive, and Outlot A of the Final Map of Tract No. 5997
according to the map thereof recorded on 6 5i2uAaa 7-9 , 20 0- in
Volume 91 of Plats at Page(s) �7-- �'� , 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. 13100 of the Fresno City Planning Commission conditionally
approved Vesting Tentative Map No. 5997, 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. 5997
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 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
STATEMENT OF COVENANTS
CFD Maintenance
Tract No. 5997
Page 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"oras"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 maybe 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.
STATEMENT OF COVENANTS
CFD Maintenance
Tract No. 5997
Page 5
DATED: FLU(-14'.e Y / 3 ZUiZ
CITY OF FRESNO, COVENANTOR
a Municipal Corporation
DE YOUNG PROPERTIES 5581 L.P.
Public Works Department a California Limited Partnership
Patrick Wiemiller, Director
By:Team 5 Properties, Inc.
a California Corporation
Its Sole General Partner
By:� r By: 9"r-"l
Scott Mozier, P.E., AssistaAbirector Jer v
De Y I
ng, P sident
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attor (Attach Notary Acknowledgment)
By:
C ffin
D ity Attorney
D7ISenior
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
c
State of California
County of
LXI&,A,,�4,�
On before me, �� �
Date Here Insert Name and Tit of the Officer
4 personally appeared
Name(s)o ' ner(s)
who proved to me on the basis of satisfactory
evidence to be the person( whose name(&) is/aFe
subscribed to the within instrument and acknowledged
to me that he/sl�y executed the same in
his/he##m.►r authorized capacity(ies), and that by
his/berMiek signature(s� on the instrument the
persons), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
BRENDA Q. POE laws of the State of California that the foregoing
4
COMM. #1868032 h is true and correct.
NOTARY PUBLIC-CALIFORNIA paragraph g p
FRESNO COUNTY
My Comm.Expires November 8,2013 WITNESS my hand and official seal.
Signature: �Azc 7. Ari-,.
Place Notary Seal and/or Stamp Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law,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:
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑ Individual M.
❑ Partner—❑Limited i 1 General Top or thumb here ❑ Partner—-1 Limited C General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
02008 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402-www.NationalNotary.org Item#5907 Reorder.Call Tall-Free 1-800-876-6827
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On February 13, 2012 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.
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, CMC
City Clerk, City of Fresno
0*" .
By ♦Deputy
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on February 21, 2008, in the office of the Fresno County Recorder, as Document No.
2008-0025205 of which the Deed of Trust in, by and between De Young Properties 5224 L.P., a
California Limited Partnership, De Young Properties 5553 L.P.,a California Limited Partnership and
De Young Properties 5581 L.P., a California Limited Partnership, as Trustor, Fidelity National Title
Company, as Trustee and California Bank&Trust,a California Banking Corporation,as Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing
Statement of Covenants Affecting Land Development for the Maintenance of Certain Improvements
for the Final Map of Tract No. 5997.
DATED: BENEFICIARY
California
California Bank &Trust,
A California Banking Corporation
l
By:
Rick Audino, Senior Vice President
(attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
fi State of California
fi
fi County of
fi �fi ( r On ;P,') C�10 bZ before me, �� S �aLh VU04a^(, ul�Jlt�.
Date Here Insert Name and Title of the Officer
fi R Ck CstI
fi personally appeared
Name(s)of igne(s)
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fiwho proved to me on the basis of satisfactory
fi evidence to be the perso*) whose name(s) is/are :
fi subscribed to the within instrument and acknowledged
fi to me that heLshe/they executed the same in
fi GAYLE S. MACK his/ber/their authorized capacity§es), and that by
fi Commlulon 17$$4,
fi Notary Public .California his/her/their signature,4s),-tyn the instrument the
` Fresno County person , or the entity upon behalf of which the
fi
C�Ca"MSVWJ131129=12 person(�acted, executed the instrument.
I„
fi
fi I certify under PENALTY OF PERJURY under the
filaws of the State of California that the foregoing
fi paragraph is true and correct.
fi
fi WITNESS my hand and official seal.
fiS ,.j}� �
Signature: 'L/
t� Place Notary Seal and/or Stamp Above I Signature of Notary Public
OPTIONAL S
fi Though the information below is not required by law, it may prove valuable to persons relying on the documentI
fi and could prevent fraudulent removal and reattachment of this form to another document.
fifi Description of Attached Document ff ''
Title or Type of Document: l bnfZ.,S�Y1�tktC)f,
fiDocument Date: ` `(0 e�% Number of Pages: '
fi Signer(s) Other Than Named Above: S
fi Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
fi ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
fi ❑ Individual ❑ Individual
fi D Partner—❑Limited General Too of thumb here ❑ Partner—D Limited ❑General Top of thumb here
fi ❑ Attorney in Fact D Attorney in Fact
fi ❑ Trustee ❑Trustee ?
fi ❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
fiSigner Is Representing: Signer Is Representing:
C2008 National Notary Association•9350 De Solo Ave..P O.Box 2402•Chatsworth.CA 91313-2402-www.NahonalNotary org Item#5907 Reorder:Call Toll-Free 1-800-876-6827
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on August 2, 2011, in the office of the Fresno County Recorder, as Document No.
2011-0101626 of which the Deed of Trust in, by and between De Young Properties 5581 L.P., a
California Limited Partnership,as Trustor, First American Title Company,as Trustee and California
Bank&Trust, a California Banking Corporation, as Beneficiary, hereby expressly subordinates said
Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting
Land Development for the Maintenance of Certain Improvements for the Final Map of Tract No.
5997.
DATED:— �aQ/
BENEFICIARY
California Bank & Trust,
A California Banking Corporation
By:
Rick Audino, Senior Vice President
(attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
c
State of California
County of
On ;1t\"1 (-, d , before me, ► i�1 2 `�. �r`� � , � ] a- ?U6( l ,
Date , J - Here Insert Name and Title of the Officer
personally appeared t' , l C V at ( V t
Name(s)of Signer(s)
who proved to me on the basis of satisfactory(
evidence to be the person 'whose nameJ%Y is/are
subscribed to the within instrument and acknowledged
to me that he/sbeftbey executed the same in
ISR his/her/their authorized capacity(iG<, and that by
Cv�
IMA!171�1� his/her/their signature,(s) on the instrument the
�> f person(,a�J' or the entity upon behalf of which the
iwWA CoMMy person(s�acted, executed the instrument.
mkcoftvk4
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.
Si nature
G�w to
Place Notary Seal and/or Stamp Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, 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 p
Title or Type of Document: `.�iil
Document Date: 1 t" 1 al— Number of Pages:
Signer(s) Other Than Named Above:
(` Capacity(ies) Claimed by Signer(s)
4
Signer's Name: Signer's Name:
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑Individual M.
❑ Partner—❑ Limited ❑General Top of thumb here ❑ Partner—L Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
02008 National Notary Association-9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder.Call Toll-Free 1.800-876-6827
EXHIBIT A
Covenanter's Initial Date
NOTICE OF SPECIAL TAX
COMMUNITY FACILITIES DISTRICT NO. 11
COUNTY OF FRESNO, CALIFORNIA
TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS:
Final Tract Map No. 5997, Lot No.: , 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 $ 1,002.46/lot during the 2011-2012 tax year(valid through June 30, 2012.) 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 all landscaping and irrigation systems within street and landscaping easements and Outlot
A, concrete curbs and gutters, valley gutter, median island edging, sidewalks, curb ramps, interior street paving,
bark treatment in Outlot A, street signage and street lighting along the frontages within and adjacent to Final Tract
Map No. 5997.
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, ANNEXATION 44 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: