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Home My WebLink AboutT-6053 - Agreement/Covenant - 6/24/2015 (3) WHEN RECORDED MAIL TO: 06 l 22 l 2015,20150018185 City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO O Public Utilities Department ZSolid Waste Management Division O U W a W J IL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT PROVIDING SPECIAL SOLID WASTE DISPOSAL SERVICES FOR CERTAIN LOTS WITHIN THE FINAL MAP OF TRACT NO. 6053 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 6053 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 follows: Lots 3, 4 and 15 of the Final Map of Tract No. 6053 according to the map thereof recorded on TU ri G ?-2 a61S in Volume 9; of Plats at Page(s) 3, Lf +- 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, Vesting Tentative Map No. 6053 was approved with conditions by the Fresno City Planning Commission on January 15, 2014; 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. 6053, 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. 6053 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) On solid waste service days, solid waste vehicles shall use the driveways of the Subject Property as a hammerhead turnaround. (C) 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 Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 6053 Page 4 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 provision herein. Statement of Covenants Special Solid Waste Disposal Services Final Map of Tract No. 6053 Page 5 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. 6053 Page 6 DATED: � U�llt 715 CITY OF FRESNO, COVENANTOR a Municipal Corporation HERNDON/HAYES NO. 1, LLC, Public Utilities Department A California Limited Liability Company Thomas Esqueda, Director A Jerry L chub r, Assis6nt Director Robert A- McCaffrey, Man ger t•' APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: M Raterman-Doidge Deputy City Attorney Date: (Attach Notary Acknowledgment) ACKNOWLEDGMENT 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 County of Fresno On 3/18/2015 before me, Michelle Lucente, Notary Public (insert name and title of the officer) personally appeared Robert A. McCaffrey 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. MICHELLE LUCENTE WITNESS my hand and official seal. Commission # 1931226 allFresno Notary Public-California County M Comm.Expires Apr 29.2015 Signature (Seal) 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 CLERK'S CERTIFICATION State of California ) County of Fresno ) On June 8, 2015 before me, Cindy J. Bruer, Deputy City Clerk, personally appeared, Jerry L. Schuber, Assistant Public Utilities Director 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 OF FRF Depdty G r r. anA'�Act `:ti SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 7, 2008 in the office of the Fresno County Recorder, as Document No. 2008- 0066446 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; The McCaffrey Group, Inc., a California Corporation, as Trustor, Financial 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. 6053. DATED: 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 ether officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached. and not the truthfiihiess, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF FRESNO On March 24, 2015, before me, Lori Nicole Beckman, a Notary Public, personally appeared Thomas G. Walker, 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. Signatur �' G LORI!NICOLE BECKMAN [SEAL] Commission s 2012327 Z �+� Notary Public-California z Z Fresno County My Comm.Wires Mar 15.2017