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HomeMy WebLinkAboutT-5997 - Agreement/Covenant - 3/1/2012 (3) WHEN RECORDED MAIL TO: 02/29/2012120120029190 City Clerk City of Fresno 2600 Fresno Street 'Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO LL Z Public Utilities Department O Solid Waste Management Division V W d W STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT PROVIDING SPECIAL SOLID WASTE DISPOSAL SERVICES FOR CERTAIN LOTS WITHIN FINAL MAP OF TRACT NO. 5997 Statement of Covenants Special Solid Waste Disposal Services Final Map of 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 follows: Lots 6, 7 and 8, of the Final Map of Tract No. 5997 according to the map thereof recorded on � Z , 20 i Z in Volume 9Z of Plats at Page(s) yL ' �7p , 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. 5997 was approved with conditions by the Fresno City Planning Commission on May 18, 2011; 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 the Final Map of Tract No. 5997, 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. 5997 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) On solid waste service days, there shall be no parking of vehicles allowed in the cul-de-sac and the cul-de-sac frontages of the Subject Property shall be clear of all vehicles by 5:30 a.m. (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 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 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5997 Page 4 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 provision herein. 6. The provisions of this Statement of Covenant shall be deemed independent and Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 5997 Page 5 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. 5997 Page 6 DATED: CF&2(jqjC Y ��. 2c)/Z CITY OF FRESNO, COVENANTOR a Municipal Corporation DE YOUNG PROPERTIES 5581 L.P. Public Utilities Department a California Limited Partnership Patrick Wiemiller, Director By:Team 5 Properties, Inc. a California Corporation Its Sole General Partner By: f By: Robert N. Andersen, Assistant Director Jerr . De ung, resident APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: o; e n Paffin for ut City Attorney Date: 2 (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ���� L,. •' On .c;l, ou�� before me, wA Date Here Insert Name an Title of the Officer personally appeared Narff of Signer(s)L/ who proved to me on the basis of satisfactory evidence to be the person(&) whose name() is/af& subscribed to the within instrument and acknowledged to me that he/&heli*" executed the same in his/he#t4etr authorized capacity(ies), and that by his/he;44eif- signature(sl on the instrument the person(&,), or the entity upon behalf of which the person(N) acted, executed the instrument. I certify under PENALTY OF PERJURY under the 6RENgA q p© laws of the State of California that the foregoing 0 COMM. #1gg8032 -, paragraph is true and correct. NOTARY PUBLIC-CALIFORNIA FRESNO COUNTY �yComWITNESS my hand and official seal. m.ExpiresNovember8,2013 Signature:/C L e L_ _ 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 4 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 ❑ Partner— Limited ❑General Top of thumb here I Partner—J Limited i_,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: C2008 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 CLERK'S CERTIFICATION State of California ) County of Fresno ) On February 13, 2012 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 YVONNE SPENCE, CMC City Clerk, City of Fresno 4�{y QF Fjp-- r O Byn Deputy z. •ftp o�c.' 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 Providing Special Solid Waste Disposal Services for Certain Lots Within Final Map of Tract No. 5997. DATED: /� 4'Gu-aD/1L- BENEFICIARY California Bank & Trust, A California Banking Corporation By: J4��-4 (Z�- Rick Audino, Senior Vice President (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT fi State of California fi fi County of (`t" On��'(1 before me, l fKQSLA(Q s A fi Date Here Insert Name and Title of theOfficer personally appeared X cls~ dSA Name(s)of Signer(s) fifiwho proved to me on the basis of satisfactory evidence to be the person whose nameX is/are fi subscribed to the within instrument and acknowledged GAYLE S. RACK to me that he/sI4,�, executed the same in Commi"llon 0 1748413 his/4effthiGe—authorized capacityjioE ,—and that by h i slftwA NotaryPub#c -C011,1101`111111110 on the instrument the Dn Fresno Cour persi (s-,-or the entity upon behalf of which the fi bamign29,02 pers onicted, executed the instrument. fi I I certify under PENALTY OF PERJURY under the filaws of the State of California that the foregoing fi paragraph is true and correct. fiWITNESS my hand and official seal. j Ifi� Signature.- Place Notary Seat and/or Stamp Above 'signature of Notary Public fiI OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document fi and could prevent fraudulent removal and reattachment of this form to another document. fi Description of Attached Document fiTitle or Type of Document: xNa4ru-)10 fi Document Date: _(0 e3k Number of Pages: fi fi Signer(s) Other Than Named Above: fi Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: fi EJ Corporate Officer—Title(s): L7 Corporate Officer—Title(s): fiL7_ Individual El Individual fi —1 Partner—17 Limited LJ General Top of thumb here L Partner—El Limited 0 General Top of thumb here fi -1 Attorney in Fact E)Attorney in Fact fi Trustee ID Trustee fi El Guardian or Conservator El Guardian or Conservator fi 0 Other: L)Other: fi fiSigner 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 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 Providing Special Solid Waste Disposal Services for Certain Lots Within Final Map of Tract No. 5997. DATED: BENEFICIARY California Bank &Trust, A California Banking Corporation -t _ By: e �Z/ Rick Audino, Senior Vice President (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT fi State of California fi �� fi County of v I fi On-,Y" (of before me, A e S, PSWE-L \�.)mtq C_u fiDate Here Insert Name and Title of the Offic r 7; fi personally appeared C.Ja~(k A_ "o „c Name(s)of Signer(s) �• ' OI fiwho proved to me on the basis of satisfactory l evidence to be the person(s) whose name(s) is/are fi subscribed to the within instrument and acknowledged to me that he/she/they executed the same in fi his/her/their authorized capacity(ies), and that by fi his/her/their signature(s) on the instrument the CMfiGAYLE ti. BUCK person(s), or the entity upon behalf of which the Commissfon # 1788413 person(s) acted, executed the instrument. Notary Pubuc -Colifoll Fr6sno County fi C.onxn OckmignM2012 I certify under PENALTY OF PERJURY under the filaws of the State of California that the foregoing fiparagraph is true and correct. „ II fi WITNESS my hand and official seal. I fi fi Signatlare: (� Place Notary Seal and/or Stamp Above Signature of Notary Public fi OPTIONAL fi Though the information below is not required by law, it may prove valuable to persons relying on the document r and could prevent fraudulent removal and reattachment of this form to another document. fi Description of Attached Document (, '/ � fi Title or Type of Document: `�0 aA1� -t �l1 fi Document Date: an L.P Number of Pages: , I Signer(s) Other Than Named Above: fiCapacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: fi ❑ Corporate Officer—Title(s): [I Corporate Officer—Title(s): ❑ Individual ❑Individual fi ❑ Partner—U Limited ❑General Top of thumb here ❑Partner—Li Limited ❑General Top of thumb here Z, fi ❑ Attorney in Fact ❑Attorney in Fact , ❑ Trustee I]Trustee fi Guardian or Conservator ❑Guardian or Conservator fi Other: O Other: fi I fi Signer Is Representing: Signer Is Representing: i � I fi 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