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HomeMy WebLinkAboutT-6052 - Agreement/Covenant - 9/24/2015 WHEN RECORDED MAIL TO: @9/2212015120150121931 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 2 NO FEE - Government Code 6103 w O LL- CITY OF FRESNO O Public Works Department 0 W Q W J STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS FOR THE FINAL MAP OF TRACT NO. 6052 STATEMENT OF COVENANTS CFD Maintenance Tract No. 6052 Page 2 RECITALS WHEREAS, HERNDON/HAYES NO. 1, LLC, A California Limited Liability Company, 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 51, inclusive,of the Final Map of Tract No.6052 according to the map thereof recorded on Sojpf -20 ;)i0/,S- in Volume ?S5 of Plats at Page(s) 9, 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, Resolution No. 13255 of the Fresno City Planning Commission conditionally approved Vesting Tentative Map No. 6052, 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. 6052 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. 6052 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"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. STATEMENT OF COVENANTS CFD Maintenance Tract No.6052 Page 5 DATED: _ I'0[-rV SI 3Ir 201 CITY OF FRESNO, COVENANTOR a Municipal Corporation HERNDON/HAYES NO. 1, LLC, Public Works Department A California Limited Liability Company Scott Mozier, P.E., Director By: By: Andrew J-r elli, P.E., Assistant Director Robert A. Marey, Manage. APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney (Attach Notary Acknowledgment) By: Raterman-Doidge ,,,"Deputy City Attorney Date: I-L A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document,to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document CLERK'S CERTIFICATION State of California } County of Fresno } On August 31, 2015 before me, Cindy Bruer, Deputy City Clerk, personally appeared, Andrew J. Benelli, Assistant Director of Public Works of the City of Fresno, 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 By fTr ne A Deputy ,•;;� =�� . " s rkti� r a,y b �� A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On August 7, 2015, before me, Shelle Hartmann,Notary Public, personally appeared,Robert A. McCaffrey,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 on behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public �� L.S. My Commission xpires: March 19,2019 r--- - - Adfih&—-— � � - - - - ,64 SHELLE HARTMANN Commission#E 2103875 Notary Public-California Fresno County MY Comm.Expires Mar 1%2019 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on November 6, 2008 in the office of the Fresno County Recorder, as Document No. 2008-0155767 of which the Deed of Trust in, by and between: Herndon/Hayes No. 1, LLC, a California limited liability company; McCaffrey Development, L.P., a California limited partnership; and The McCaffrey Group, Inc., a California Corporation, as Trustor, First American Title Insurance 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 The Maintenance of Certain Improvements for the Final Map of Tract No. 6052. DATED: 10"5 t 7, Lo/s BENEFICIARY U. S. Bank National Association, D/B/A Housing Capital Company By: Name: Thomas G. Walker Title: Senior Vice-President By: Name: Title: (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) ACKNOWLEDGMENT A notary public or other- officer corhrpletrug this certificate verifies only the identity of the individual who siarhed the document to which this certificate is attached, and not the trutlhf ihhess. accm-acy. or validity of that docuinent. STATE OF CALIFORNIA!!� COUNTY OF v On , 2015,begor a Notary Pub li ersonally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowled ed to me that he/sl 6 executed the same in his/�V' authorized capacity, and that by his/lr signature on the instrument the person, or the entiuponbehalf 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. Signator [SEAL] LORI NICOLE BECKMAN Commission#2012327 '* Notary Public -California z Fresno County n My Comm.Elire Mar 15,201 f EXHIBIT A Covenanter's Initial Date NOTICE OF SPECIAL TAX CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11, COUNTY OF FRESNO, STAE OF CALIFORNIA TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS: Final Tract Map No. 6052, 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 $779.54/lot during the 2014-2015 tax year(valid through June 30, 2015.) 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, are: Maintenance of all landscaped areas, trees and irrigation systems located within the public easements and Outlot B of Final Tract Map No. 6053; including West Herndon Avenue median islands and trail. Maintenance of all concrete curbs and gutters, valley gutters, curb ramps, sidewalks, trail and major street median hardscaping, expressway barrier fencing, street name signage, trail amenities, street lighting, Outlot B park amenities; including, without limitation, tubular steel fencing, pilasters, gate concrete walk areas and benches. Final Tract Maps No. 6052, 6053 and 6075 will share the costs for all Services in common with all three final maps annexed to the Community Facilities District No. 11 as Annexation No. 60. 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 APPROVED RESOLUTION WHICH ANNEXED TERRITORY AND AUTHORIZED THE LEVY OF A SPECIAL TAX FOR ANNEXATION NO. 60 OF COMMUNITY FACILITIES DISTRICT NO. 11 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: