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Home My WebLink AboutT-5558 - Agreement/Covenant - Maintenance of Landscape Improvements - 12/26/2018 RECORDING REQUESTED BY 2018-0153000 AND WHEN RECORDED MAIL TO: FRESNO County Recorder Paul Dictos, CPA CityClerk Wednesday, Dec 26, 2018 08:00:00 AM City of Fresno CONFORMED COPY 2600 Fresno Street Fresno, CA 93721-3603 Copy of document recorded. Has not been compared with original. NO FEE - Government Code 6103 CITY OF FRESNO M Public Works Department 0 Li Z 0 0 LU U) Q W STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF LANDSCAPE IMPROVEMENTS FOR CERTAIN LOTS WITHIN THE FINAL MAP OF TRACT NO. 5558 STATEMENT OF COVENANTS Landscape Maintenance Tract No. 5558 Page 2 RECITALS WHEREAS, BMCH CALIFORNIA, LLC, a Delaware 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 27, 28, 34, 35, 42, 43 and 49 of the Final Map of Tract No. 5558 according to the map thereof recorded on in Volume f6of Plats at Page(s) J 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. 12787 of the Fresno City Planning Commission conditionally approved Vesting Tentative Map No. 5558, 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; 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 the majority of this maintenance condition by annexing the Subject Property in the City's Community Facilities District. The remaining improvements not annexed into the City's Community Facilities District are the landscape improvements within a 5 foot landscape area on the Subject Property that is adjacent to and sides onto a street; and WHEREAS, Covenantor has elected to satisfy this maintenance condition by Covenantor's personal responsibility; and STATEMENT OF COVENANTS Landscape Maintenance Tract No. 5558 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. The landscape improvements within a 5 foot landscape area on the Subject Property that is adjacent to and sides onto a street 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 at Covenantor's sole expense in a manner acceptable to the Public Works Director. 3. The Covenantor shall provide to every prospective purchaser of the Subject Property, a copy of this covenant. 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 expenses. For the purposes of this Statement of Covenant, "attorneys'fees"and "legal expenses" STATEMENT OF COVENANTS Landscape Maintenance Tract No.5558 Page 4 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 Landscape Maintenance Tract No. 5558 Page 5 DATED: DECEM LV9 0 2,019 CITY OF FRESNO, COVENANTOR a Municipal Corporation BMCH CALIFORNIA, LLC, Public Works Department A Delaware Limited Liability Company Scott Mozier, P.E., Director By. By. Andrew J. Be Ili, P.E., Assistant Director as� m W. Flet r, Division President ent a!Valley Division APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney �- (Attach Notary Acknowledgment) By: an-Doidge ut City Attorney Date: I )- Aq CALIFORNIA ALL-PURPOSE 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 dacurnent. State of California County of Fresno On November 13, 2018 before me, Patricia L. Gavello, Notary Public, personally appeared James W. Fletcher, 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.OAVELLO NOTARY PUBLIC-CALIFORNIA w COMMISSION N 22139.98 FRESNO COUNTY My Comm.Exp.October 9,2021 Signature of Notary Public 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 December 17 2018 before me, Cindy J. Bruer, Deputy City Clerk, personally appeared, Andrew J. Benelli P.E. City Engineer for the Public Works-Department 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 OF By e�e� �� co � f� eputy # ° w l :bQCZ.