HomeMy WebLinkAboutAgreement A-17-231 with Highway City Community Development.pdfL-322
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GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (hereinafter “Ground Lease”) is made and
entered into this ___ day of _____________, 2017 (“Effective Date”), by and between
HIGHWAY CITY COMMUNITY DEVELOPMENT, INC., a California nonprofit public benefit
corporation, 4710 N. Polk, Fresno, CA 93722, (“LESSOR”), and the COUNTY OF FRESNO, a
political subdivision of the State of California, 333 W. Pontiac, Clovis, CA 93612 (“LESSEE”).
LESSOR and LESSEE shall be referred to herein singularly as a “Party” and collectively as
“Parties”.
WHEREAS, LESSOR is the owner of an approximately 15,075 square foot area of bare
land in the Highway City area of Fresno County (“the “Library Site”), which is part of a larger 2.11
acre parcel of bare land owned by LESSOR having an APN of 510-030-23 (the “Property”), all of
which is more particularly described in Exhibit “A”, attached hereto and incorporated herein by
reference; and
WHEREAS, as set forth in Exhibit “B”, attached hereto and incorporated by reference,
LESSOR proposes to build an approximately 5,560 square foot multi-purpose neighborhood
community resource center (“Community Center”) on the Property (the “LESSOR’s Site”),
adjacent to the Library Site portion of the Property, and is desirous of LESSEE leasing the Library
Site from LESSOR for purposes of LESSEE, in its discretion, building a Fresno County branch
library thereon, as provided herein below; and
WHEREAS, as part of its proposal, LESSOR proposes to install and maintain at least
sixty-five (65) paved parking spaces and related approach aprons, drive lanes, curbs, gutters,
sidewalks, ingress and egress to the Library Site, and lighting, as shown in Exhibit “A”
(collectively, the “Parking & Site Improvements”), as provided herein below; and
WHEREAS, LESSEE desires to lease the Library Site for the sole purpose of constructing
a Fresno County branch library thereon, in its discretion, provided that LESSOR first timely
constructs the Community Center on the LESSOR’s Site, as provided herein below; and
WHEREAS, LESSEE has sufficient Measure B sales tax revenue to fund the rent of the
Library Site for the Initial Term (as defined below) upon the terms and conditions set forth herein
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below.
NOW, THEREFORE, in consideration of the mutual obligations herein of the Parties, the
Parties agree as follows:
1. PROPERTY AND LEASED PREMISES – LESSOR hereby leases to LESSEE the
Library Site as identified in Exhibit “A”.
2. TERM – The term of this Ground Lease shall be ninety-nine (99) years beginning
on the Effective Date and ending ninety-nine (99) years thereafter (the “Initial Term”). Upon
expiration of the Initial Term, this Ground Lease shall renew automatically for another ninety-nine
(99) years upon the same terms and conditions specified herein (the “Renewal Term”), unless
LESSEE provides at least one (1) year’s advance written notice to LESSOR of its intention to not
renew this Ground Lease. If this Ground Lease is renewed as provided herein, then at least one
(1) year in advance of the termination of the Renewal Term, the Parties shall commence
negotiations, which negotiations shall result in either of the following prior to the expiration of the
Renewal Term: (a) further renewal of the term of this Ground Lease upon a reasonable rental
rate, and for a reasonable term, that is fair to each of the Parties and commensurate with allowing
the LESSEE to continue to use the Library Site for the purposes herein; or (2) the LESSOR’s
purchase of the Library Project from LESSEE for its then-current fair market value, which value
may be established by written appraisal, provided that the appraiser shall be selected by each
Party’s designated appraiser (who is not an employee of either Party) jointly selecting an
independent appraiser; the cost of such appraisal shall be shared equally by the Parties
regardless of whether such sale is consummated.
3. RENT – Subject to Section 17.A, herein, LESSEE shall pay to LESSOR within
ninety (90) days of the Effective Date, a one-time lease payment of one hundred fifty thousand
and no/100 ($150,000) dollars. LESSEE shall pay no rent for the entirety of the Renewal Term.
4. DEVELOPMENT AND USE OF THE LIBRARY SITE – LESSEE shall use the
Library Site for the purposes of developing, constructing, and operating thereon a building to be
used as a County library, including services incidental to library use which are then customary of
the type of such library (the “Library Project”), at no cost to LESSOR; all of the foregoing to the
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extent permitted by City of Fresno zoning; and for no other use without LESSOR’s prior written
consent. LESSEE’s use of the Library Site shall not interfere with LESSOR’s use of the
LESSOR’s Site. Notwithstanding the foregoing, LESSEE has the discretion of whether or when to
construct the Library Project on the Library Site.
5. DEVELOPMENT AND USE OF THE LESSOR’S SITE – LESSOR shall use the
LESSOR’s Site for purpose of developing, constructing, and operating thereon the Community
Center and Parking & Site Improvements, at no cost to LESSEE, all of the foregoing to the extent
permitted by City of Fresno zoning; and for no other use without LESSEE’s prior written consent.
LESSOR’s use of the LESSOR’s Site shall not interfere with LESSEE’s use of the Library Site.
The Parking Site and Improvements shall be for the common use and benefit of the LESSOR’s
Site and the Library Site, and to that end, the Parking & Site Improvements shall be shared
together, without segregated or restricted parking except for Accessible Spaces (as defined
herein below), with LESSEE’s employees and invitees of the Library Site, including by way of
example, library patrons, and LESSOR’s employees and invitees of the LESSOR’s Site, all at no
cost to LESSEE or such LESSEE’s invitees. LESSOR shall be responsible for maintaining,
repairing, and repaving (including re-striping parking stalls and globe replacement) the Parking
and Improvements, at no cost to LESSEE, during the term of this Ground Lease. “Accessible
Space” means a parking space restricted to use by vehicles displaying a valid California
Department of Motor Vehicles “disabled person” placard or license plate or a similar valid
placard or license plate issued by other states according to their respective laws, or to vehicles
otherwise complying with the accessible vehicle requirements of the California Building Code
(Title 24), and the Americans With Disabilities Act (42 United States Codes, secs. 12101, et
seq.), including all then-current guidelines, standards, and regulations adopted or enacted in
relation thereto.
6. LIBRARY PROJECT PARKING IMPROVEMENTS/LICENSE – At the time
LESSEE constructs any Library Project building, LESSEE shall be responsible at its own cost for
constructing any additional parking improvements (“Library Additional Parking Improvements)
sufficient to meet any zoning, building code or other legal requirement resulting from the
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construction of the Library Project building in the area identified for additional parking in Pha se
2 in Exhibit “B” to this Ground Lease. LESSOR agrees that LESSEE shall have a license to
enter into and construct said Library Additional Parking Improvements at the time of
construction of any Library Project building. Once constructed and approved for use, t he
Library Additional Parking Improvements shall be for the common use and benefit of the
LESSOR’s Site and the Library Site, and to that end, the Library Additional Parking Improvements
shall be shared together, without segregated or restricted parking except for Accessible Spaces
with LESSEE’s employees and invitees of the Library Site, including by way of example, library
patrons, and LESSOR’s employees and invitees of the LESSOR’s Site, all at no cost to LESSEE
or such LESSEE’s invitees. LESSOR shall be responsible for maintaining, repairing, and
repaving (including re-striping parking stalls and globe replacement) the improvements during the
term of this Ground Lease, however, LESSEE shall pay to LESSOR a pro-rata share of the
expenses incurred in the maintenance repair or repaving of the Library Additional Parking
Improvements.
7. QUIET ENJOYMENT – The LESSOR promises, covenants, and warrants, to
LESSEE that the LESSEE, including its assigns or sublessees, may quietly have, hold, and
enjoy all of the Library Site and any improvements thereto, during the Initial Term of this
Ground Lease, the Renewal Term, and any extended term thereof, without hindrance or
interruption by the LESSOR or by any other person or entity lawfully or equitably claiming by,
through or under the LESSOR, except as limited by the Permitted Encumbrances (as set forth
in Exhibit “C”, attached hereto and incorporated herein by reference).
8. INFRASTRUCTURE – LESSOR shall be responsible, at its cost, for ensuring, prior
to LESSEE commencing construction of the Library Project on the Library Site, that the Library
Site has, in LESSEE’s opinion, access to utilities necessary for the Library Project. Utilities and
infrastructure to serve the Library Project and the Library Site shall be extended by LESSOR to
the perimeter of the Library Site in an area that is anticipated to be at least ten (10) feet away
outside of the Library Project building and any foundations supporting the building and any
related structure(s). Utilities shall include, but not be limited to, electricity, gas, water (domestic
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and fire suppression), wastewater, and storm water. Infrastructure shall include, but not be
limited to, conduit and pipeline pathways to the Library Site; sleeves shall be placed by LESSOR
under streets and paved areas to facilitate connections to and replacement of utilities; utility
boxes shall be placed by LESSOR to facilitate future installation and access to utilities. Sleeves
shall be at least twice the diameter of the anticipated size of the utility line passing through it,
which utility line shall be provided by the LESSEE. LESSEE shall provide information to
LESSOR regarding the sizing of all utility lines. Pathways of sleeves, utilities, and infrastructure
shall be clearly and permanently identified by LESSOR on the Library Site, and shown on a plan
of the Property to be provided by LESSOR, with sufficient information and benchmarks, to
LESSEE’s satisfaction, to locate them in the future, all of the foregoing to be provided by
LESSOR, at LESSOR’s sole cost and expense promptly after the placement of such sleeves,
utilities and infrastructure.
9. MAINTENANCE OF PROPERTY – LESSOR shall maintain the Property and the
surrounding area, including weed abatement and abatement of any nuisances as per Fresno City
Code, beginning on the Effective Date and continuing (a) for the Library Site, until LESSEE
commences construction of the Library Project, and (b) for the LESSOR’s Site, at all times during
the term of this Ground Lease.
10. UTILITIES – LESSEE shall pay directly those metered costs for its use of natural
gas and electricity, water, garbage, sewer and all cost associated with its use of telephone
service to the Library Project.
11. TAXES – From the Effective Date of this Ground Lease and continuing until
LESSEE commences construction of the Library Project building, LESSOR shall be responsible
for all property taxes and assessments and property-related fees and charges for the Property,
including the Library Site, and shall pay all such taxes, assessments, and property-related fees
and charges directly to the appropriate authority or authorities. After the date the LESSEE
commences construction of the Library Project building, LESSEE shall pay to LESSOR a pro-rata
share of any property taxes and assessments and property-related fees and charges resulting
from the LESSEE’s use or occupancy of the Library site and/or Library Additional Parking
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Improvements. Provided however, the provisions of this Section 11 with respect to property
related fees and charges shall not apply to the costs of utilities under Section 10, herein.
12. LIENS – Except for Permitted Encumbrances as identified in Exhibit “C”, or as
provided in Section 29 herein, LESSOR shall at all times keep the Property, including the Library
Site, free and clear of any and all liens and claims for services, labor or materials supplied or
claimed to have been supplied to LESSOR or to or in connection with the Property, and free and
clear of all encumbrances, attachments, executions, pledges, hypothecations, levies, mortgages,
conditional sale agreements, or chattel mortgages, and LESSEE shall not suffer any other matter
or thing whereby the estate, rights, and/or interest of the LESSEE in the Library Site and/or the
Library Project, or any part thereof, might be impaired.
13. RIGHTS TO PURCHASE:
A. LESSEE’s RIGHT OF FIRST REFUSAL– If, at any time during the term of this
Ground Lease, LESSOR intends to offer to sell, assign, or transfer the Property or any portion
thereof, including the Library Site, or any interest therein (in any such case, the “Offered
Property”), to a third party (other than an entity controlling, controlled by or under common control
with LESSOR), the LESSOR shall, prior to any such action, deliver to LESSEE written notice of
the terms and conditions, upon which LESSOR intends to offer the Offered Property for sale,
assignment, or transfer (the “LESSOR’s Notice”). Provided that no event of default has occurred
and is continuing hereunder, LESSEE shall have the right to purchase the Offered Property on
the terms and conditions set forth in LESSOR’s Notice by giving written notice to the LESSOR
within ninety (90) days after receiving LESSOR’s Notice of LESSEE’s intention to purchase on
the terms contained in such LESSOR’s Notice.
In the event LESSEE fails to notify LESSOR within said ninety (90) day period of
LESSEE’s election to exercise its right to purchase hereunder, or in the event LESSEE notifies
LESSOR within said period that LESSEE will not exercise its right to purchase hereunder,
LESSOR may proceed to sell the Offered Property, stated in such LESSOR’s Notice, to any third
party after the expiration of such ninety (90) day period, but only on substantially the same terms
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and conditions as were set forth in the LESSOR’s Notice, and any material change in such terms
and conditions shall be deemed a new offer and LESSOR shall in such event not consummate
any sale, assignment, or transfer to any third party without first submitting to LESSEE a written
notice containing all of the changed terms and conditions (and not just those which have changed
substantially or materially) for determination by LESSEE in the manner provided above, except
that LESSEE shall then have sixty (60) days after receipt of said notice in which to elect to
exercise its right to purchase on the basis of the changed terms and conditions. For these
purposes, the LESSOR’s offer shall be deemed to have been changed substantially or materially
only if the purchase, assignment, or transfer price at which the Offered Property is offered differs
by more than three percent (3%) from the purchase, assignment, or transfer price previously
offered by LESSOR.
B. LESSOR’s RIGHT OF FIRST REFUSAL– If, at any time during the term of this
Ground Lease, LESSEE intends to offer to sell, assign, or transfer the Library Project, or any
interest therein (in any such case, the “Offered Library”), to a third party, the LESSEE shall, prior
to any such action, deliver to LESSOR written notice of the terms and conditions, upon which
LESSEE intends to offer the Offered Library for sale, assignment, or transfer (the “LESSEE’s
Notice”). Provided that no event of default has occurred and is continuing hereunder, LESSOR
shall have the right to purchase the Offered Library the terms and conditions set forth in
LESSEE’s Notice by giving written notice to the LESSEE within ninety (90) days after receiving
LESSEE’s Notice of LESSOR’s intention to purchase on the terms contained in such LESSEE’s
Notice.
In the event LESSOR fails to notify LESSEE within said ninety (90) day period of
LESSOR’s election to exercise its right to purchase hereunder, or in the event LESSOR notifies
LESSEE within said period that LESSOR will not exercise its right to purchase hereunder,
LESSEE may proceed to sell the Offered Library, stated in such LESSEE’s Notice, to any third
party after the expiration of such ninety (90) day period, but only on substantially the same terms
and conditions as were set forth in the LESSEE’s Notice, and any material change in such terms
and conditions shall be deemed a new offer and LESSEE shall in such event not consummate
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any sale, assignment, or transfer to any third party without first submitting to LESSOR a written
notice containing all of the changed terms and conditions (and not just those which have changed
substantially or materially) for determination by LESSOR in the manner provided above, except
that LESSOR shall then have sixty (60) days after receipt of said notice in which to elect to
exercise its right to purchase on the basis of the changed terms and conditions. For these
purposes, the LESSEE’s offer shall be deemed to have been changed substantially or materially
only if the purchase, assignment, or transfer price at which the Offered Library is offered differs by
more than three percent (3%) from the purchase, assignment, or transfer price previously offered
by LESSEE. Notwithstanding any of the foregoing, LESSEE shall not sell, assign or transfer
LESSEE’s interest in this Ground Lease to any third party, without LESSOR’s written consent,
which consent shall not be unreasonable withheld, delayed, or denied.
14. COMPLIANCE WITH ALL LAWS – As to the entirety of the Property, including the
Library Site, LESSOR shall comply with any and all applicable Federal, State, County, City of
Fresno and/or local agency statutes, laws, codes (including, but not limited to, building codes,
such as the California Building Code (Title 24 of the CCR)), ordinances (including, but not
limited to, building and construction ordinances (including grading or excavation requirements
thereunder), zoning ordinances or development standards (including setbacks, height, fencing
requirements thereunder), rules, requirements, regulations, guidelines to the extent that s uch
guidelines have the legal effect of being mandatory, throughout the term of this Ground Lease.
15. WASTE – LESSEE shall not knowingly commit, suffer or permit any waste or
nuisance on or about the Library Site or knowingly allow any acts to be done thereon in
violation of any laws or ordinances. LESSOR shall not knowingly commit, suffer or permit any
waste or nuisance on or about Lessor’s Site or knowingly allow any acts to be done thereon in
violation of any laws or ordinances.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS -
A. Representations and Warranties of the LESSEE. In addition to any agreements
of LESSEE herein, LESSEE makes the following representations and warranties to LESSOR
as of the Effective Date:
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(1) The LESSEE is a political subdivision of the State of California created in
accordance with the provisions of the Constitution of the State of California, with full legal right,
power and authority to enter into and perform its obligations under th is Ground Lease.
(2) The LESSEE has full legal right, power and authority to enter into this Ground
Lease as LESSEE and to carry out and consummate all transactions contemplated by this
Ground Lease and by proper action has duly authorized the execution and delivery of this
Ground Lease.
(3) The officer(s) of the LESSEE executing this Ground Lease are duly and
properly holding their respective offices and are fully authorized to execute this Ground Lease .
(4) This Ground Lease has been duly authorized, executed and delivered by the
LESSEE, and will constitute a legal, valid and binding agreement of the LESSEE, enforceable
against the LESSEE in accordance with its terms on the Effective Date.
(5) No representation, warranty or statement of the LESSEE in this Ground Lease
contains any untrue statement of a material fact or omits or will omit to state a material fact
necessary to make the statements or facts contained therein not misleading.
(6) The LESSEE represents with respect to the Library Site that neither the
LESSEE nor any other person or entity under the control of, or with the knowledge of the
LESSEE will cause or permit the use generation, storage, release, discharge, or disposal of
any Hazardous Materials on, under, in, or about the Library Site or transported to or from the
Library Site.
B. Representations, Warranties and Covenants of the LESSOR. In addition to any
agreements of LESSOR herein, the LESSOR makes the following representations, warranties
and covenants to the LESSEE as of the Effective Date:
(1) The LESSOR is a valid 501(c)(3) public benefit corporation of the State of
California, in good standing, created in accordance with the provisions of the laws of the State
of California, with full legal right, power and authority to enter into and perform its obligations
under this Ground Lease.
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(2) The LESSOR has full legal right, power and authority to enter into this Ground
Lease as LESSOR to transfer and convey the leasehold interest in the Library Site to the
LESSEE under this Ground Lease, and to carry out and consummate all transactions
contemplated by this Ground Lease and by proper action has duly authorized the execution
and delivery of this Ground Lease.
(3) Each individual executing this Ground Lease on behalf of LESSOR represents
and warrants that such individual is duly authorized to execute and deliver this Ground Lease on
behalf of HIGHWAY CITY COMMUNITY DEVELOPMENT, a 501(c)(3) public benefit
corporation, and that this Ground Lease is binding upon HIGHWAY CITY COMMUNITY
DEVELOPMENT, a 501(c)3 public benefit corporation, in accordance with its terms.
(4) This Ground Lease has been duly authorized, executed and delivered by
LESSOR, and will constitute a legal, valid and binding agreement of LESSOR, enforceable
against the LESSOR in accordance with its terms upon the Effective Date.
(5) The LESSOR is the sole owner in fee simple of the Property and has
marketable and insurable fee simple title to the Property, there is no suit, action, arbitra tion,
legal, administrative, or other proceeding or inquiry pending against the Property or pending
against the LESSOR which could affect the LESSEE’s title to the proposed Library Project
and/or its possessory interest in the Library Site, affect the value of the Library Project or
Library Site, or subject an owner of the Property to liability and there are no outstanding
mortgages, deeds of trust, bond indebtedness, leaseholds, pledges, conditions or restrictions,
liens or encumbrances against the Property, or any portion thereof including the Library Site,
except as identified in Exhibit “C”, collectively, as the “Permitted Encumbrances”.
(6) No consent, permission, authorization, order, license, or registration with any
governmental authority is necessary in connection with the execution and delivery of this
Ground Lease, except as have been obtained.
(7) There exists no litigation or other proceeding pending or threatened against the
LESSOR, that, if determined adversely, would materially and adversely affect the ability of the
LESSOR to perform its obligations under this Ground Lease.
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(8) Neither the execution and delivery of this Ground Lease and documents
referenced herein, nor the incurrence of the obligations set forth herein, nor the consummation
of the transactions herein contemplated, nor compliance with the terms of this Ground Lease
and the documents referenced herein conflict with or result in the material breach of any terms,
conditions or provisions of, or constitute a default under, a ny agreements or instruments to
which the LESSOR is a party or affecting the Property or any portion thereof including the
Library Site.
(9) There are no attachments, execution proceedings, or assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings pending or
threatened against the LESSOR or the Property or any portion thereof including the Library
Site.
(10) There are no and have been no:
(i) actual or pending improvements which will result in the creation of any liens,
encumbrances or assessments or charges upon the Property, including public
assessments or mechanics liens, other than the Permitted Encumbrances, and
the LESSOR agrees to indemnify, defend and hold the LESSEE, including its
officers, agents, and employees, free and harmless from and against any
claims, liabilities, losses, costs, damages, expenses and attorneys’ fees and
costs arising from any liens, encumbrances or assessments or charges that
have been, or may be, imposed upon the Property as a consequence of actual
or impending improvements at or after the Effective Date, including any
obligations to pay a fee or assessment or charge for infrastructure to the extent
such liability survives or continues at or after the Effective Date but excluding
utilities under Section 9 herein.
(ii) uncured notices from any governmental agency notifying the LESSOR of
any conditions or circumstances occurring, or that has occurred, on or about
the Property that would be a violation of Section [13] of this Ground Lease.
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(iii) notices of any condemnation, zoning or other land -use regulation
proceedings, either instituted or planned to be instituted, which would
detrimentally affect the use, operation or value of the Property or any portion
thereof, including the Library Site.
(11) The LESSOR hereby agrees that it will not enter into any new leases,
licenses, or any other obligations or agreements that will affect the Property at or after the
Effective Date, without the express prior written consent of the LESSEE.
(12) The LESSOR will not subject the Property to any additional liens,
encumbrances, covenants, conditions, easements, licenses, rights of way, or similar matters
after the Effective Date without the express prior written consent of the LESSEE.
(13) The LESSOR shall promptly notify the LESSEE of any event or circumstance
that makes any representation or warranty of the LESSOR under this Ground Lease untrue or
misleading, or of any covenant of the LESSOR under this Ground Lease incapable or less
likely of being performed. The LESSOR’s obligation to provide the notice described in the
preceding sentence to the LESSEE shall in no way relieve the LESSOR of any liability for a
breach by the LESSOR of any of its representations, warranties or covenants under this
Ground Lease.
(14) No representation, warranty or statement of the LESSOR in this Ground
Lease contains any untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements or facts contained therein not misleading.
(15) To the LESSOR’s best knowledge, after having examined its documents,
public records and other instruments and having made inquiry of appropriate depar tments and
agencies with respect to the Property and, except as expressly provided in this Ground Lease,
no Hazardous Materials were used, generated, stored, released, discharged or disposed of on,
under, in, or about the Property or transported to or from the Property prior to the Effective
Date. “Hazardous Materials” as used in this Ground Lease mean any substance, material, or
waste which is or becomes, regulated by any local governmental authority, the State, or the
United States Government, including, but not limited to, any material or substance which is (i)
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defined as a “hazardous waste”, “extremely hazardous waste”, or “restricted hazardous waste”
under Section 25115, 25117 or 25122.7 of the California Health and Safety Code, or listed
pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as “hazardous substance” under Section 25316 of
the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Talmer
Hazardous Substance Account Act), (iii) defined as a “hazardous material”, “hazardous
substance”, or “hazardous waste” under Section 25501 of the California Health and Safety
Code.
(16) LESSOR has given careful consideration, and has undertaken diligent
investigation, in consultation with appropriate professionals and persons experienced in
developing and constructing projects similar to the Community Center, as to the expected cost
of undertaking its obligations under this Ground Lease, and LESSOR believes it will obtain
sufficient funds and resources to construct the Community Center and Parking & Site
Improvements, plus all infrastructure necessary to construction of LESSEE’s Library Project
under Section 8, herein, not later than September 30, 2019.
(17) The LESSOR represents with respect to the Property that neither the
LESSOR nor any other person or entity under the control of, or with the knowledge of the
LESSOR will cause or permit the use generation, storage, release, discharge, or disposal of
any Hazardous Materials on, under, in, or about the Property or transported to or from the
Property.
17. PRE-CONDITIONS AND REMEDIES – Except as expressly provided in
subdivision A, B, or D of this Section 17, the Parties agree that any breach of or default under
this Ground Lease, or any other condition or circumstance, will not allow either Party to
terminate this Ground Lease or otherwise allow LESSOR to interfere with the LESSEE’s quiet
enjoyment and beneficial use of the Library Site and the Library Project under this Ground
Lease.
A. COMPLETION OF COMMUNITY CENTER and Parking & Site Improvements –
This Ground Lease is contingent upon LESSOR’s satisfactory completion of its
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planned Community Center and Parking & Site Improvements, at no cost to
LESSEE, as described in Exhibit B and pursuant to the terms and conditions of this
Ground Lease. In the event that the Community Center and Parking & Site
Improvements, plus all infrastructure necessary to construction of LESSEE’s
Library Project under Section 7 herein, are not completed by September 30, 2019,
LESSOR shall fully and immediately refund LESSEE’s advance rental payment of
one hundred fifty thousand and no/100 ($150,000) dollars for the Initial Term, and
upon the LESSEE’s receipt of such funds, this Ground Lease shall terminate.
B. NON FUNDING TERMINATION – Notwithstanding anything to the contrary herein,
LESSEE is not under any duty to construct the Library Project. This Ground Lease
is contingent on the allocation of funds by a governmental agency. Should funds
not be allocated with respect to any of the LESSEE’s obligations under this Ground
Lease, this Ground Lease may be terminated by the Board of Supervisors at any
time by LESSEE giving at least thirty (30) days prior written notice to LESSOR.
C. BREACH -
(1) Default Notice. Upon the occurrence of a breach of, or default in the
performance, by either Party of any of its material obligations under this Ground
Lease, the Party not in breach or default may give written notice to the breaching
or defaulting Party of such breach or default (in either such case, hereinafter a
“Default Notice”). Upon receipt of the Default Notice, the breaching or defaulting
Party will have fifteen (15) days to cure any monetary breach or default, or thirty
(30) days to cure any non-monetary breach or default, described in the Default
Notice; provided however, that if a non-monetary breach or default, (i) concerns
an imminent threat to the health or safety of any person who may be in or about
the LESSOR’s Site or the Library Site, such breach or default shall be immediately
cured by the LESSOR or LESSEE, respectively, (ii) does not concern an imminent
threat to the health or safety of any person who may be in or about the LESSOR’s
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Site or the Library Site, and is not reasonably capable of cure within that thirty (30)
day period, then no breach or default shall be deemed to have occurred by reason
of such failure so long as the Party receiving the Default Notice gives the Party
that provided the Default Notice a written notice describing, with reasonabl e
particularity, the reason why such Party receiving the Default Notice cannot
reasonably cure such breach within such thirty (30) day period, the steps that such
Party receiving the Default Notice will take to cure the breach or default, and
promptly commences, and diligently and continuously prosecutes, the cure to
completion within a reasonable period not to exceed the earlier of either: (i) ninety
(90) days, or (ii) any time allowed by law, or order of any court or a governmental
authority or public agency having regulatory or oversight jurisdiction over the
subject matter thereof (in either such case, respectively, hereinafter the “Cure
Period”).
(2) Event of Default: If the breaching or defaulting Party does not cure the
breach or default within the applicable Cure Period (to the extent that a Cure Period
is allowed for such breach or default in this Ground Lease), then the breaching or
defaulting Party shall be deemed to have committed an “Event of Default”
hereunder, and the party giving the Default Notice shall have the right, but not the
obligation, to pursue its legal and equitable rights and remedies against the
breaching or defaulting Party in respect of such Event of Default set forth in this
Section 17-C.
(3) Additional Events of Default: In addition to the provisions set forth in this
Section 17 hereinabove, LESSOR will be deemed to have committed an Event of
Default under this Ground Lease if LESSOR commits a breach of, or default in the
performance of, any of its material obligations under any loan ag reement(s) or
promissory note(s) related to any deed of trust under Section 29, herein, that
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encumbers, the Property, including the Library Site, or any portion thereof (each
hereinafter a “Financing Agreement,” and collectively “Financing Agreements”),
and fails to cure that breach or default within the applicable time period for cure
set forth thereunder; provided that LESSOR will be entitled to all affirmative
defenses in this Ground Lease that LESSOR would have against the beneficiary,
or other lender, with respect to such breach or default under any of the Financing
Agreements. LESSOR shall timely give, and require the beneficiary or lender
under any of the Financing Agreements to timely give, LESSEE a copy of any
written notice of breach or default by LESSOR under any of the Financing
Agreements where such beneficiary or lender is required to give such written
notice thereof to LESSOR. Notwithstanding anything to the contrary in this Section
17, LESSEE shall not be required to provide LESSOR with a Default Notice, or
any opportunity to cure, any Event of Default of LESSOR described in this Section
17-C, but all LESSOR cure rights, if any, shall be as set forth in the Financing
Agreements.
(4) Exercise of Remedies: Upon an uncured Event of Default by a Party, the
Party that provided the Default Notice to the breaching or defaulting Party will have
the rights and remedies set forth in this Section 17-C against the breaching or
defaulting Party in addition to any other rights or remedies permitted at law. As
provided in this Section17-C, the Party that provided the Default Notice shall have
the option to do any of the following, but in any event such exercise of remedies
shall not permit such Party to terminate this Ground Lease:
i.To undertake or assert, without terminating this Ground Lease, an action in
specific performance, or other equitable remedy, to require the breaching or
defaulting Party’s performance of its obligations under this Ground Lease.
ii.To recover from the breaching or defaulting Party damages suffered by reason
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of an Event of Default by the breaching or defaulting Party.
(5) Where LESSEE’s right to possess, occupy, or use the Library Site
(including the Library Project) under this Ground Lease is or may be impaired
such that LESSEE is or may be compelled to vacate (or partially vacate) the
Library Site as a result of an Event of Default by LESSOR with respect to this
Section 17-C, then, notwithstanding any provision contained herein to the
contrary, to the extent that LESSEE is or may be compelled to vacate (or partially
vacate) the Library Site, LESSEE may seek and obtain the remedy of “non-
disturbance and attornment” under Section 29 herein.
D. EMINENT DOMAIN - If the whole or any portion of the Library Site or the Library
Project shall be taken in eminent domain proceedings, or by sale in lieu of such
taking by a governmental entity threatening to use the power of eminent domain,
and which taking renders the Library Site and/or the Library Project unsuitable for
the continued use by the LESSEE, as reasonably determined by LESSEE, then
this Ground Lease shall terminate when possession is taken by the condemning
entity. If this Ground Lease is terminated because of such taking, then the
proceeds shall be distributed to the LESSEE for the value of its interest in the
Library Project and the Library Site, and the remainder, if any, of such proceeds
shall be distributed to the LESSOR. LESSOR and LESSEE shall each have the
right to represent its own interest, at its own cost and expense, in any
proceedings arising out of such taking, and each of the LESSOR and the
LESSEE shall reasonably cooperate with the other, including without limitation,
settling with the condemning authority only with the other Party’s reasonable
consent if such settlement would affect the other Party’s rights. If this Ground
Lease is not terminated because of such taking, then it shall remain in full force
and effect with respect to the remainder of the Library Site and the Library
Project. The LESSOR and the LESSEE each waives the provisions of the
California Code of Civil Procedure, Section 1265.130, or any similar law that
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permits a Party to petition a court to terminate this Ground Lease upon a taking
affecting the Library Site or the Library Project, the Parties agreeing that any
such termination rights shall be only as expressly set forth in this Ground Lease.
18. HOLD HARMLESS - LESSOR agrees to indemnify, save, hold harmless, and at
LESSEE'S request, defend the LESSEE, its officers, agents, and employees from any and all
attorney’s fees, costs and expenses, damages, liabilities, claims, and losses occurring or resulting
to LESSEE in connection with the performance, or failure to perform, by LESSOR, its officers,
agents, or employees under this Ground Lease, and from any and all attorney’s fees, costs and
expenses, damages, liabilities, claims, and losses occurring or resulting to any person, firm, or
corporation who may be injured or damaged by the performance, or failure to perform of
LESSOR, its officers, agents, or employees under this Ground Lease. The parties acknowledge
that as between LESSOR and LESSEE, each is responsible for the negligence of its own
employees and invitees. The provisions of this Section 18 shall survive the termination of this
Ground Lease.
19. INSURANCE - Without limiting the LESSEE’S right to obtain indemnification from
LESSOR or any third parties, LESSOR, at its sole expense, shall maintain in full force and effect,
the following insurance policies or a program of self-insurance throughout the term of this Ground
Lease:
A. Commercial General Liability - Commercial General Liability Insurance with limits of
not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two
Million Dollars ($2,000,000). This policy shall be issued on a per occurrence basis. LESSEE may
require specific coverages including completed operations, products liability, contractual liability,
Explosion-Collapse-Underground, fire legal liability, or any other liability insurance deemed
necessary because of the nature of this contract.
B. Worker’s Compensation - A policy of Worker’s Compensation insurance as may be
required by the California Labor Code.
LESSOR shall obtain endorsements to the Commercial General Liability insurance naming
the County of Fresno (hereinafter “County”), its officers, agents, and employees, individually and
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collectively, as additional insured, but only insofar as the operations under this Ground Lease are
concerned. Such coverage for additional insured shall apply as primary insurance and any other
insurance or self-insurance maintained by its officers, agents, and employees shall be excess
only and not contributing with insurance provided under LESSOR’S policies herein. This
insurance shall not be cancelled or changed without a minimum or thirty (30) days advance
written notice given to County.
Within (30) days from the date LESSOR executes this Ground Lease, LESSOR shall
provide certificates of insurance and endorsement as stated above for all of the foregoing
policies, as required herein, to the County of Fresno, Attn: ISD Lease Services (L-322), 333 W.
Pontiac Way, Clovis, CA 93612, stating that such insurance coverages have been obtained and
are in full force; that the LESSEE, its officers, agents and employees will not be responsible for
any premiums on the policies; that such Commercial General Liability insurance names the
LESSEE, its officers, agents, and employees, individually and collectively, as additional insured,
but only insofar as the operations under this Ground Lease are concerned; that such coverage for
additional insured shall apply as primary insurance and any other insurance or self- insurance
shall not be cancelled or changed without a minimum of thirty (30) days advance written notice
given to LESSEE.
In the event LESSOR fails to keep in effect at all times insurance coverage as herein
provided, the LESSEE may, in addition to other remedies it may have, suspend or terminate this
Ground Lease upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State of
California. Insurance purchased shall be purchased from companies possessing a current A.M
Best Company rating of A FSC VII or better.
LESSEE shall maintain during the term of this Ground Lease the following policies of
insurance, which coverages may be provided in whole or in part through one or more programs of
self-insurance:
a. Commercial General liability insurance with limits of not less than One Million
Dollars ($1,000,000.00) per occurrence and an annual aggregate of not less than Two Million
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Dollars ($2,000,000.00). This policy shall be issued on an occurrence basis.
20. ASSIGNMENT – Except as otherwise provided herein, neither Party shall assign,
transfer or sub-let this Ground Lease, or the rights or duties of such Party under this Ground
Lease, without the prior written consent of the other Party, which consent shall not be
unreasonably, delayed, withheld or denied, provided however, nothing in this Section 20 shall
require LESSEE to obtain LESSOR’s consent for any occupants or users providing services
incidental to library use which are then customary of the type of such library, as provided in
Section 4, herein.
21. GOVERNING LAW – Venue for any action arising out of or relating to this Ground
Lease shall be in Fresno County, California. This Ground Lease shall be governed by the laws of
the State of California.
22. NOTICES – All notices to be given under this Ground Lease by either Party to the
other Party shall be in writing, and given by any one of the following methods:
A. Personal delivery; or
B. Sent by certified United States mail, first class postage prepaid, with return receipt
requested, to the applicable addresses as set forth below, in which case such
notice shall be deemed given three (3) business days if LESSOR is the recipient, or
three (3) LESSEE business days if LESSEE is the recipient, after such deposit and
postmark with the United States Postal Service; or
C. Sent by a reputable overnight commercial courier, in which case such notice shall
be deemed given one (1) business day if LESSOR is the recipient, or one (1)
LESSEE business day if LESSEE is the recipient, after such deposit with that
courier to the applicable addresses as set forth below; or
The addresses and telephone numbers of the Parties for the purposes of giving receiving notices
under this Ground Lease are as follows:
LESSEE: LESSOR:
County of Fresno (L-32)
Director of Internal
President or Executive Director
Highway City Community Development
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Provided however, such notices may be given to such person or at such other place as either of
the Parties may from time to time designate by giving written notice to the other Party, and
provided further however, in any event, notices of changes of address or termination of this
Ground Lease shall not be effective until actual delivery of such notice. Notices given hereunder
shall not be amendments or modifications to this Ground Lease.
23. INDEPENDENT CONTRACTOR – In performance of the work, duties and
obligations assumed by LESSOR under this Ground Lease, it is mutually understood and agreed
that LESSOR, including any and all of the LESSOR’S officers, agents, and employees will at all
times be acting and performing as an independent contractor, and shall act in an independent
capacity and not as an officer, agent, servant, employee, joint venture, partner, or associate of the
LESSEE. Furthermore, LESSEE shall have no right to control or supervise or direct the manner
or method by which LESSOR shall perform its work and function. However, LESSEE shall retain
the right to administer this Ground Lease so as to verify that LESSOR is performing its obligations
in accordance with the terms and conditions thereof.
LESSOR and LESSEE shall comply with all applicable provisions of law and the rules
and regulations, if any, of governmental authorities having jurisdiction over matters the subject
thereof. It is acknowledged that during the term of this Ground Lease, LESSOR may be
providing services to others unrelated to the LESSEE or to this Ground Lease.
24. NO THIRD PARTY BENEFICIARIES – Notwithstanding anything else to the
contrary herein, the Parties acknowledge and agree that no other person, firm, corporation, or
entity shall be deemed an intended third-party beneficiary of this Ground Lease.
25. PARTIAL INVALIDITY/SEVERABILITY – If any one or more of the terms,
provisions, covenants or conditions of this Ground Lease shall to any extent be declared
invalid, unenforceable, void or voidable for any reason by a court of competent jurisdiction and
the finding or order or decree of which becomes final, none of the remaining terms, provisions,
Services/Chief Information Officer
333 W. Pontiac
Clovis, CA 93612
4710 N. Polk
Fresno, CA 93722
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covenants or conditions of this Ground Lease shall be affected thereby, and each provision of
this Ground Lease shall be valid and enforceable to the fullest extent permitted by law.
26. COUNTERPARTS – This Ground Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one and the same Ground Lease. It is also agreed that separate counterparts of this
Ground Lease may separately be executed by the signatories to this Ground Lease, all with
the same force and effect as though the same counterpart had been executed by all of the
signatories.
27. DISCLOSURE OF SELF DEALING TRANSACTIONS – This provision is only
applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation) or if
during the term of this Ground Lease, the LESSOR changes its status to operate as a
corporation.
Members of LESSOR’S Board of Directors shall disclose any self-dealing transactions that
they are a party to while LESSOR is providing goods or performing services under this Ground
Lease. A self-dealing transaction shall mean a transaction to which the LESSOR is a party and in
which one or more of its directors has a material financial interest. Members of the Board of
Directors shall disclose any self-dealing transactions that they are a party to by completing and
signing a Self-Dealing Transaction Disclosure Form Exhibit “ D ”, attached hereto and by this
reference incorporated herein, and submitting it to the County of Fresno prior to commencing with
the self-dealing transaction or immediately thereafter.
28. ESTOPPEL CERTIFICATE – LESSEE shall, at any time upon not less than thirty
(30) days prior written request by LESSOR, execute, acknowledge and deliver to LESSOR a
written estoppel certificate, in a form reasonably satisfactory to LESSOR, certifying that this
Ground Lease is unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified and stating the modifications) and, if
applicable, the dates to which the rent and any other charges have been paid in advance. Any
such statement delivered pursuant to this Section 28 may be relied upon by third persons,
including a prospective purchaser or encumbrancer of the Property.
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LESSEE’S failure to execute and deliver an estoppel certificate within thirty (30) days after
LESSEE’S receipt of LESSOR’S written request therefor shall be conclusive upon LESSEE
that this Ground Lease is in full force and effect, without modification except as may be
represented by LESSOR, that there are no uncured defaults in LESSOR’S performance, that
not more than rental amount stated in Section 3, herein, has been paid in advance, and that all
other statements required to be made in the estoppel certificate are conclusively made.
29. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT – At LESSOR’S
option, this Ground Lease shall be subordinated to any mortgage or deed of trust which is now
or shall hereafter be placed upon the Property, and LESSEE agrees, with reasonable advance
notice thereof given to LESSEE as to the need therefor, to execute and deliver any instrument
which may be reasonably necessary to further effect the subordination of this Ground Lease to
any such mortgage or deed of trust; provided, however, that such instrument of subordination
shall expressly provide, or the mortgagee or beneficiary of such mortgage or deed of trust
otherwise shall expressly agree in writing in recordable form delivered to LESSEE, that the
mortgagee or beneficiary, including their successors and assigns, recognize LESSEE’s
leasehold interest under this Ground Lease and that so long as LESSEE is not in default under
this Ground Lease, foreclosure of any such mortgage or deed of trust or sale pursuant to
exercise of any power of sale thereunder, or deed given in lieu thereof, shall not affect this
Ground Lease but such foreclosure or sale, or deed given in lieu thereof, shall be made subject
to this Ground Lease which shall continue in full force and effect, binding on LESSEE, as
lessee, and the transferee, as lessor (all of which is commonly referred to as the remedy of
“non-disturbance” by LESSOR). LESSEE shall attorn to the transferee as if said transferee
was LESSOR under this Ground Lease (which is commonly referred to as the remedy of
“attornment” by LESSEE). .
30. WAIVER – The waiver by either Party of a breach by the other of any provision of
this Ground Lease shall not constitute a continuing waiver of any subsequent breach of either
the same or a different provision of this Ground Lease.
No provision of this Ground Lease may be waived unless in writing signed by both Parties to
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this Ground Lease. Waiver of any one provision herein shall note be deemed to be a waiver of
any other provision herein.
31. ENTIRE GROUND LEASE – This constitutes the entire Ground Lease between
the LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
leases, negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless e xpressly referenced in this Ground Lease.
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L-322
1 IN WITNESS WHEREOF , the parties hereto have executed this Ground Lease as of the day and
2 year first hereinabove written .
LESSEE:
couNTY R.F Fr EsNo
By tL ylJ_
Brian Pacheco , Chairman
Board of Supervisors
APPROVED AS TO LEGAL FORM :
DANIEL C . CEDERBORG, COUNTY
LESSOR :
Highway City Community Development
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COUM
sy 'IU~C ~~
Deputy
APPROVED AS TO ACCOUNTING FORM :
OSCAR J . GARCIA, CPA
AUDITOR-CO TROLLER/
TREASURE -AX LLECTOR
Robert W . Bash , Director of Internal
Services/Chief Information Officer
21 RECOMMENDED FOR APPROVAL :
By 24t+ Jl~
Khlley Worman-Landano
County Librarian
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24 Fund ~+-0101 ~
25 Subclass 10000
Org No. 75110800
26 Acct. No . 7887
27 HighwayCity/L-322HCCD/Library
28
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ATTEST:
BERNICE E . SEIDEL , Clerk
Board of Supervisors
212.50'140.00'15.075112.50'NAME:DATE:DRAWN:GMEDINA06/01/17100200CK:KNEHRING06/01/17(INFEET)EXHIBITB#N0.NORTHUNEOFTHEN1/2,SW1/4,NE1/4OFSEC15PARCEL AOFLOTUNEADJUSTMENTNO2009-02,RECORDEDJUNE 11,2009ASDOCi2009-0079119APN:510-030-23EASTUNEOFTHEWEST553.40'OF THEN1/2,SW1/4,NE1/4OFSEC15DEPARTMENTOFPUBLICWORKSANDPLANNINGHIGHWAYCITYLIBRARYPARCELLEASESHEETNO.1OF1mXroH>
Property Description
Proposed Highway City Library -Lease Parcel
The Easterly 112.50 feet of the Westerly 212.50 feet of the Northerly 134.00 feet of Parcel "A" of Lot Line
Adjustment No. 2009-02, recorded June 11, 2009 as Document No. 2009-0079119, Official Records of
Fresno County, more particularly described as follows:
That portion of the West 553.40 feet of the North half of the Southwest quarter of the Northeast quarter
of Section 15, Township 13 South, Range 19 East, Mount Diablo Base and Meridian, lying South of the
North 258.00 feet of said North half;
Excepting therefrom the South 175.00 feet thereof.
Consisting of 15,075 square feet.
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EXHIBIT C
PERMITTED ENCUMBRANCES
Permitted Encumbrances shall be:
All items as set forth on Schedule "B"of the attached Preliminary Title Report for
the Property,EXCEPTING Item No. 1 Real Estate Taxes.
CONDITION OF TITLE
Guarantee Number:
Issued By;
FWFM-T017000806
CHICAGO TITLE INSURANCE COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE,AND THE GUARANTEE CONDITIONS ATTACHED HERETO
AND MADE A PART OF THIS GUARANTEE,
CHICAGO TITLE INSURANCE COMPANY
a corporation,herein called the Company
GUARANTEES
the Assured named in Schedule A of this Guarantee
against loss or damage not exceeding the Amount of Liability stated in Schedule A sustained by the Assured by reason of
any incorrectness in the Assurances set forth in Schedule A.
Chicago Title Company
2540 W.Shaw Lane,Suite 112
Fresno,CA 93711
Countersigned By;
^Jl W.
Authorized Officer or Agent
Condition of Title Guarantee
CLTA Guarantee Form No. 28 (06/05/2014)
Chicago Title Insurance Company
By;
Attest:
President
Secretary
Printed:05.22.17 @ 05:01 PM
CA-CT-FWFM-02180.054441-SPS-1-17-FWFM-T017000805
CHICAGO TITLE INSURANCE COMPANY
Amount of Liability
$5,000.00
ISSUING OFFICE:
Title Officer: Bob Tully
Chicago Title Company
2540 W.Shaw Lane,Suite 112
Fresno,CA 93711
Main Phone:(559)492-4208
Email:robert,tully@fnf.com
SCHEDULE A
$500.00
GUARANTEE NO.FWFM-T017000805
Bob Tully
Date of Guarantee:May 15.2017 at 12:00 AM
1.Name of Assured:The County of Fresno
2.The estate or interest in the Land which is covered by this Guarantee is:
A Fee
3.The Land referred to in this Guarantee is described as follows:
SEE EXHIBIT "A"ATTACHED HERETO AND MADE A PART HEREOF
4.ASSURANCES:
According to the Public Records as of the Date of Guarantee,
a.Title to the estate or interest in the Land is vested in:
Highway City Community Development,Inc., a California Corporation
b. Title to the estate or interest is subject to defects,liens or encumbrances shown in Schedule Bwhich are not
necessarily shown in the order of their priority.
END OF SCHEDULE A
Condition of Title Guarantee
CLTA Guarantee Form No. 28 (06/05/2014)Printed:05.22.17 @ 05:01 PM
CA-CT-FWFM-02180.054441-SPS-1-17-FWFM-T017000805
ForAPN/ParcellD(s):510-030-23
EXHiBrr "A"
Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED INTHE CITY OF FRESNO,COUNTY OF FRESNO.STATE
OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Parcel Aof LotLineAdjustment 2009-02, recorded as Document No.2009-0079119 of Official Records of Fresno County,
more particularly described as follows:
That portion of the West 553.40 feet of the North half of the Southwest quarter of the Northeast quarter of Section 15,
Township 13 South,Range 19 East,Mount Diablo Base and Meridian, in the Cityof Fresno,County of Fresno,State of
Califomia.lying South of the North 258.00 feet of said North half.
Excepting therefrom the South 175.00 feet thereof.
Condition of Title Guarantee
CLTA Guarantee Fonm No.28 (06/05/2014)Printed:05.22.17@ 05:01 PM
Page 3 CA-CT-FWFM-02180.054441-SPS-1-17-FWFM-T017000805
CHICAGO TITLE INSURANCE COMPANY GUARANTEE NO.FWFM-T017000805
SCHEDULE B
1.REAL ESTATE TAXES:
a.Property taxes,which are a lien not yet due and payable,including any assessments collected with taxes
to be levied for the fiscal year 2017-2018.
b. Note:Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts
were:
Tax ID No.:510-030-23
Fiscal Year:2016-2017
1st Installment:$1,215.45
2nd Installment:$1,215.45
Exemption:$0.00
Land:$198,990.00
Improvements:$0.00
Personal Property:$0.00
Code Area:005-095
c.The lien of supplemental or escaped assessments of property taxes,ifany,made pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) or Part 2,Chapter 3, Articles 3 and 4,
respectively,of the Revenue and Taxation Code of the State of California as a result of the transfer of title
to the vestee named in Schedule A or as a result of changes in ownership or new construction occurring
prior to Date of Policy.
d. The herein described property lies withinthe boundaries of the Fresno MetropolitanFlood Control District
and may be subject to assessment for drainage fees and/or requirements to construct planned local
drainage facilities
Disclosed by: FMFCD Resolution No.1816
Recording Date: July 31,1995
Recording No.:95092128 of Official Records
No assessments have been levied at this time.
e.Taxes and assessments levied by the Fresno Irrigation District.
f.Taxes and assessments levied by the Highway City Community Service District.
2. THE FOLLOWING DEFECTS,LIENS AND ENCUMBRANCES (WHICHARE NOT NECESSARILY SHOWN IN
THEIR ORDER OF PRIORITY)AGAINSTTHE INTEREST:
a.Easement(s)for the purpose(s)shown below and rights incidental thereto as reserved in a document;
Reserved by: Calvin Richter,et at
Purpose:open ditch and pipeline
Recording Date:November 22,1965
Recording No.: Book 5243,Page 147 as Document No.94042 of Official Records
Affects:said land,as set forth in said document
b. Rights of the publicto any portion of the Land lying withinthe area commonly known as North Polk
Avenue.
Condition of Title Guarantee
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Page 4 CA-CT-FWFM-02180.054441-SPS-1-17-FWFM-T017000805
CHICAGO TITLE INSURANCE COMPANY GUARANTEE NO.FWFM-T017000805
SCHEDULE B
(continued)
c.Easement(s)forthe purpose(s)shown belowand rightsincidentalthereto, as granted ina document:
Granted to: Cityof Fresno
Purpose:public street
Recording Date:March 4,1999
Recording No.:1999-0033753 of Official Records
Affects:said land,as set forth in said document
d.Easement(s)forthe purpose(s)shown below and rights incidental thereto, as granted ina document:
Granted to:Fresno Irrigation District
Purpose:canals,pipes,pipelines and other conduits
Recording Date: April 5,2012
Recording No.:2012-0048130 of Official Records
Affects:said land,as set forth in said document
e.Easement(s)for the purpose(s)shown below and rights incidental thereto,as granted ina document:
Granted to: City of Fresno
Purpose:public street
Recording Date:July 29,2013
Recording No.:2013-0106120 of Official Records
Affects;said land,as set forth in said document
f.The search did not disclose any open mortgages or deeds of trust of record,therefore the Company
reserves the right to require further evidence to confirm that the property is unencumbered,and further
reserves the rightto make additional requirements or add additional items or exceptions upon receipt of
the requested evidence.
g. Any right,interest or claim that may exist,arise or be asserted against the Title under or pursuant to the
Perishable Agricultural Commodities Actof 1930,as amended,7 USC 499a et seq.,the Packers and
Stockyard Act of 1921,as amended,7 USC 181 et seq.,or any similar state laws.
3.THE FOLLOWING MATTERS ARE DISCLOSED BY NAME ONLY AND THE COMPANY,WITHOUT
ADDITIONAL INFORMATION, IS UNABLE TO DETERMINE WHETHER ANY OR ALL OF THESE MATTERS
ARE DEFECTS.LIENS OR ENCUMBRANCES AGAINST THE INTEREST:
none
END OF SCHEDULE B
Condition of Title Guarantee
CLTAGuarantee Fom)No.28 (06/05/2014)Printed: 05.22.17 @ 05:01 PM
Page 5 CA-CT-FWFI«-02180.054441-SPS-1-17-FWFM-T017000805
CHICAGO TITLE INSURANCE COMPANY GUARANTEE NO.FWFM-T017000805
EXCLUSIONS FROM COVERAGE
Exceptas expressly pro\Aded bythe assurances inSchedule A,the Company assumes no liability forloss ordamage byreason ofthe following:
(a) Defects, liens,encumbrances,adverse claims or other matters affectingthe titleto any propertybeyond the lines ofthe Land.
(b) Defects, liens,encumbrances,adverse claims or other matters,whether or not shown by the Public Records (1)that are created,suffered,
assumed or agreed to by one or more of the Assureds;or (2) that result in no loss to the Assured.
(c) Defects, liens,encumbrances,adverse claims or other matters not shown bythe Public Records.
(d) The identity of any party shown or refen-ed to in any of the schedules of this Guarantee.
(e) The validity,legal effect or priorityof any matter shown or referred to in any of the schedules of this Guarantee.
(f)(1)Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or (2)proceedings by a public agency which
may result in taxes or assessments,or notices of such proceedings,whether or not the matters excluded under (1) or (2)are shown by the records
of the taxing authority or by the Public Records.
(g) (1)Unpatented mining claims; (2)resen/ations or exceptions in patents or in Acts authorizing the issuance thereof; (3)water rights, claims or title
to water,whether or not the matters excluded under (1), (2) or (3)are shown by the Public Records.
GUARANTEE CONDITIONS
1.DEFINITION OF TERMS
The following terms when used in the Guarantee mean:
(a) the "Assured": the party or parties named as the Assured in Schedule A, or on a supplemental writing executed by the Company.
(b) "Land": the Land described or referred to in Schedule A, and improvements affixedthereto which by lawconstitute real property. The temi
"Land"does not include any property beyond the lines ofthe area described or refen^ed to in Schedule A,nor any right,title,interest,estate or
easement in abutting streets,roads,avenues,alleys,lanes,ways or waterways.
(c)"Mortgage":mortgage,deed of trust,trust deed,or other security instrument.
(d) "PublicRecords": those recordsestablished under California statutes at DateofGuarantee forthe purpose of imparting constructivenoticeof
matters relating to real property to purchasers for value and without knowledge.
(e)"Date of Guarantee":the Date of Guarantee set forth in Schedule A,
(f) "Amount of Liability":the Amount of Liability as stated in Schedule A.
2.NOTICE OF CLAIM TO BE GIVEN BY ASSURED
TheAssuredshall notify the Company promptly in writing incase knowledge shallcometo theAssuredofanyassertion offacts, orclaimoftitleor
interestthat Is contrary tothe assurances set forth inScheduleAand that might cause loss ordamage for which the Company maybe liable under
this Guarantee.Ifprompt notice shall not be given to the Company,then all liability of the Company shall terminate withregard to the matter or
matters for whichprompt notice is required;provided,however,that failure to notify the Companyshall in no case prejudice the rights of the
Assured under this Guarantee unless the Company shall be prejudiced bythe failureand then onlyto the extent ofthe prejudice.
3.NO DUTY TO DEFEND OR PROSECUTE
The Company shallhave nodutyto defendorprosecuteanyactionor proceeding to which the Assuredis a party,notwithstanding the natureof
any allegation in such action or proceeding.
4.COMPANY'S OPTION TO DEFEND OR PROSECUTE ACTIONS;DUTYOF ASSURED TO COOPERATE
Even though the Company has no duty to defend or prosecute as set forthin Paragraph 3 above:
(a) The Company shallhave the right,at its sole option and cost, to institute and prosecuteany action or proceeding,interpose a defense,as
limited in Paragraph4 (b).or to do any other act vrfiich in its opinion may be necessary or desirable to establishthe con-ectness of the
assurances set forthin Schedule Aor to prevent or reduce loss or damage to the Assured. The Companymaytake any appropriateaction
under the tenns ofthis Guarantee,whether or not it shall be liablehereunder, and shall not thereby concede liability orwaive any provisionof
this Guarantee.Ifthe Company shall exercise its rights under this paragraph,itshall do so diligently.
(b) Ifthe Companyelects to exercise its options as stated in Paragraph 4 (a) the Companyshall have the rightto select counsel of its choice
(subjectto the right ofthe Assuredto objectforreasonablecause) to representthe Assured and shallnotbe liable forand will notpaythe
fees ofanyother counsel,nor will the Company payanyfees, costs orexpenses incurred byan Assured inthe defenseofthose causes of
action which allege matters not covered bythis Guarantee.
(c) Wheneverthe Company shallhave brought an action or interposed a defenseas pemnitted bythe provisions ofthis Guarantee,the Company
maypursueany litigation to final detennination bya courtofcompetentjurisdiction andexpresslyreservesthe right,initssole discretion,to
appeal from an adverse judgment or order.
(d) Inailcases wherethisGuaranteepenultsthe Company toprosecuteor provide forthedefenseofany action or proceeding,the Assured shall
secure to the Company the right toso prosecute or provide forthe defenseofany action or proceeding,and all appeals therein,and pemiit
the Company to use, at its option,the name ofthe Assured forthis purpose.Whenever requested bythe Company,the Assured,at the
Compan/s expense,shall give the Company all reasonable aid in any action or proceeding,securing evidence,obtaining witnesses,
prosecuting or defending the action or lawful act which in the opinion of the Company may be necessary or desirable to establishthe
con-ectness ofthe assurances set forthinSchedule Aorto preventor reduce loss or damage to the Assured. Ifthe Companyis prejudiced
by the failure of the Assured to furnish the required cooperation,the Company's obligations to the Assured under the Guarantee shall
tenninate.
Condition of Title Guarantee
CLTA Guarantee Form No.28 (06/05/2014)Printed:05.22.17 @ 05:01 PM
Page 6 CA-CT-FWFWW)2180.054441-SPS-1-17-FWFM-T017C00805
CHICAGO TITLE INSURANCE COMPANY GUARANTEE NO.FWFM-T017000805
(continued)
5.PROOF OF LOSS OR DAMAGE
(a) In the event the Company is unable to detemfiine the amount of loss or damage,the Company may, at its option, require as a conditionof
payment that the Assured furnish a signed proof of loss. The proof of loss must describe the defect,iien,encumbrance,or other matter that
constitutes the basis ofloss or damage and shall state,tothe extent possible, the basis ofcalculatingthe amount ofthe loss or damage.
(b) Inaddition, the Assured may reasonably be required to submit to examination under oath by any authorized representative ofthe Company
and shall produce for examination, inspection and copying,at such reasonable times and places as may be designated by any authorized
representative of the Company, all records,books,ledgers,checl<s,correspondence and memoranda,whether bearing a date before or after
Date of Guarantee,which reasonably pertain to the loss or damage.Further, if requested by any authorized representative of the Company,
the Assured shall grant its permission, inwriting,for any authorized representative of the Company to examine, inspect and copy all records,
books, ledgers,checks,correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or
damage.All infomnation designated as confidential by the Assured provided to the Company pursuant to this paragraph shall not be
disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the
Assured to submit for examination under oath,produce other reasonably requested infonnation or grant permission to secure reasonably
necessary information from third parties as required in the above paragraph,unless prohibited by law or governmental regulation, shall
temninate any liabilityof the Company under this Guarantee to the Assured for that claim.
6.OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS:TERMINATION OF LIABILITY
In case of a claim under this Guarantee,the Company shall have the foIlovMng additional options:
(a) To pay or tender payment of the Amount of Liability together with any costs,attorneys'fees, and expenses incurred bythe Assured that were
authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay.
(b) To pay or otherwise settle with the Assured any claim assured against under this Guarantee.In addition, the Company will pay any costs,
attomeys'fees, and expenses incurred bythe Assured that were authorized by the Company up to the time of payment or tender of payment
and that the Company is obligated to pay; or
(c) To pay or othenwise settle with other parties for the loss or damage provided for under this Guarantee,together with any costs,attorneys'
fees, and expenses incurred by the Assured that were authorized by the Company up to the time of payment and that the Company is
obligated to pay.
Upon the exercise by the Company of either of the options provided for in 6 (a), (b) or (c) of this paragraph the Compan/s obligations to the
Assured under this Guarantee for the claimed loss or damage,other than the payments required to be made,shall terminate, includingany duty to
continue any and all litigation initiated by the Company pursuant to Paragraph 4.
7.LIMITATION OF LIABILITY
(a) This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurredby the Assured claimantwho has
suffered loss or damage by reason of reliance upon the assurances set forth in Schedule A and onlyto the extent herein described, and
subject to the Exclusions From Coverage of this Guarantee.
(b)Ifthe Company,or the Assured under the direction of the Company at the Company's expense, removes the alleged defect,lien,or
encumbrance or cures anyother matterassured against bythis Guarantee ina reasonably diligent manner byanymethod,including litigation
and the completion ofanyappeals therefrom,itshallhave fully performed its obligations with respecttothatmatterandshallnotbe liable for
any loss or damage caused thereby.
(c) Inthe eventofany litigation bythe Company or with the Company's consent,the Company shallhaveno liability forloss or damage until
there has been a final detennination bya courtofcompetent jurisdiction,and dispositionofall appeals therefrom.
(d)The Company shallnotbe liable forlossordamagetothe Assured for liability voluntarily assumedbythe Assured in settling any claim orsuit
without the priorwritten consent of the Company.
8.REDUCTION OF LIABILITY OR TERMINATION OF LIABILITY
All payments underthis Guarantee,except payments made for costs,attomeys'fees and expenses pursuant to Paragraph 4 shall reduce the
Amount of Liability under this Guarantee pro tanto.
9.PAYMENT OF LOSS
(a) No payment shall be made without producing this Guarantee for endorsement of the paymentunless the Guarantee has been lost or
destroyed, inwhich case proofofloss ordestructionshallbe furnishedtothe satisfactionofthe Company.
(b) When liability andthe extentofloss ordamagehas been definitely fixed in accordance with these Conditions,the lossordamage shall be
payable withinthirty (30)days thereafter.
10.SUBROGATION UPON PAYMENT OR SETTLEMENT
Wheneverthe Company shallhavesettledandpaida claim underthis Guarantee,all right of subrogation shallvest inthe Company unaffected by
any act of the Assured claimant.
The Company shallbe subrogatedto and be entitled to all rights and remedies which the Assured would havehadagainstanypersonor property
inrespecttothe claim hadthis Guarantee notbeenissued. Ifrequestedbythe Company,the Assured shalltransfertothe Company all rights and
remedies againstany personor property necessary inorderto perfectthis right of subrogation.The Assured shall permit the Company to sue,
compromise or settle in the name ofthe Assured and to use the name of the Assured inany transaction or litigation involving these rights or
remedies.
Ifa paymenton accountofa claim does not fully coverthe loss ofthe Assured the Company shallbe subrogated to all rights and remedies ofthe
Assured after the Assured shall have recovered its principal,interest,and costs of collection.
Condition of Title Guarantee
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Page 7 CA-CT-FWFM-02180.054441-SPS-1-17-FWFM-T017000805
CHICAGO TITLE INSURANCE COMPANY GUARANTEE NO.FWFM-T017000805
(continued)
11.ARBITRATION
Either the Company or the Assured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance
ArbitrationRules of the American Land TitleAssociation ("Rules"). Except as provided Inthe Rules,there shall be no joinder or consolidation with
claims or controversies of other persons.Arbitrablematters may include, but are not limitedto, any controversy or claim between the Company
and the Assured arising out of or relating to this Guarantee,any service of the Company in connection with its issuance or the breach of a
Guarantee provision,or to any other controversy or claim arising out of the transaction givingrise to this Guarantee.All arbitrable matters when
the amount of liability is Two Million And No/100 Dollars ($2,000,000) or less shall be arbitrated at the option of either the Company or the
Assured.All arbitrable matters when the amount of liability is in excess of Two Million And No/100 Dollars ($2,000,000) shall be arbitrated only
when agreed to by both the Company and the Assured.Arbitration pursuant to this Guarantee and under the Rules shall be binding upon the
parties.Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent jurisdiction.
12.LIABILITYLIMITEDTO THIS GUARANTEE;GUARANTEE ENTIRE CONTRACT
(a) This Guarantee together with all endorsements,if any,attached hereto by the Company is the entire Guarantee and contract between the
Assured and the Company.In interpreting any provision of this Guarantee,this Guarantee shall be construed as a whole.
(b) Any claim of loss or damage,whether or not based on negligence,or any action asserting such claim, shall be restricted to this Guarantee.
(c) No amendment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either
the President,a Vice President,the Secretary,an Assistant Secretary,or validating officeror authorized signatory ofthe Company.
13.SEVERABILITY
In the event any provision of this Guarantee,in whole or in part, is held invalid or unenforceable under applicable law, the Guarantee shall be
deemed not to includethat provisionor such part held to be Invalid,but all other provisionsshall remain in full force and effect.
14.CHOICE OF LAW;FORUM
(a) Choiceof Law;The Assured acknowledgesthe Companyhas unden/vritten the riskscoveredbythis Guarantee and determinedthe premium
charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation,rights,remedies, or
enforcement of Guaranties of the jurisdiction where the Land is located.
Therefore, the court or an arbitratorshall applythe lawofthe jurisdiction where the Landis located to detemiine the validity ofclaimsthat are
adverse to the Assured and to interpretand enforcethe terms ofthis Guarantee. Inneither case shallthe courtorarbitratorapplyits conflicts
of law principles to determine the applicable law.
(b) Choiceof Forum:Any litigation orother proceeding brought bytheAssuredagainstthe Company mustbe filed only ina state or federal court
withinthe United States ofAmerica or its tenitories having appropriate jurisdiction.
15.NOTICES,WHERE SENT
All notices required tobe given the Company andany statement in writing required to be fumished the Company shall include the number of this
Guarantee and shall be addressed to the Company at:
Chicago Title Insurance Company
P.O.Box 45023
Jacksonville,FL 32232-5023
Attn:Claims Department
END OF CONDITIONS
Condition of Title Guarantee
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Page 8 CA-CT-FWFM-02180.054441-SPS-1-17-FVVFM-T017000805
Thismap^latIsbeing furnishedesanekllnlocetlngthehereindescribedLendInrelation toedplnlngstreets,naturalboundariesandotherland,andIsnotasurveyof the land depicted. Except toOteextent apoUeyoftnieInsuranceIsexpresslymodBledbyencrorsemen(Ifany, theCompanydoesnotbisuredimensions,distances,hcatlonafeasemBnts,acreageorothermatteisshornthereon.POR.SEC.15,T.13S.,R.19E.,M.D.B.&M.TaxRateAreaS-03S5-5705-61}510-03(4W.1/4conIS,13»9.ClTYOFFR£SNO1.3SAa^VVW.GETTYSBURG12-24-2013DKtSJP. sSW.22'^1in2Z89AC.CENTRALUNIFIEDSCHOOLDISTRICT(TEAGUE),!*•2S.54V3IJ2--23J4-23.88--100.23--tsiAtf55340-2.10AC.7.03AC.WM.7.68AC.76SJ9-C.1306^moo-4.24AC.19028-S.71Ac.(^^EII22«-751-0019.7SAaF.M.F.C.D.T18.87AaS.P.R.R.SW751-002i'~4(xrSIZ02'SANTAANAAVE.B1/4CORNOTE•Assessor'sBlockNumbers Shown In Ellipses.Assessor'sParce/NumbersShownInCircles.Assessor'sMapBk.510- Pg. 03CountyofFresno,Cedif.O