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HomeMy WebLinkAboutPM 2008-01 - Agreement/Covenant - 12/9/2008 (3) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street 12/09/2008,Z00rg0168031 Fresno, CA 93721-3603 ----- ----------- NO --- .----_NO FEE — GOVERNMENT CODE 6103 CITY OF FRESNO r� Planning and Development Department O LL Z O U W ca a Lu CL STATEMENT OF COVENANTS #2 AFFECTING LAND DEVELOPMENT TO CREATE MUTUAL EASEMENTS AND RECIPROCAL USES FOR PARCEL MAP NO. 2008-01 Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 2 WHEREAS, GYDA LAND COMPANY, INC, a California Corporation, AMENDOLA INVESTMENTS, LLC., a California Limited Liability Company, RICHARD M. AARON AND NANCY S. AARON, Co-Trustees of the Aaron Family Trust Dated October 6, 2006 and BETTYE L. SMITH, a Single Woman, are the owners of the real property situated in the City of Fresno, County of Fresno, State of California more particularly described in Exhibit A and COPPER & MAPLE ASSOCIATES, LLC, a Delaware Limited Liability Company is the owner of the real property situated in the City of Fresno, County of Fresno, State of California more particularly described in Exhibit B, hereinafter referred to as "Covenantors" and the real property described in Exhibits A and B being hereinafter referred to as the "Subject Property"; and WHEREAS, Covenantors hereby warrant 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, Covenantors have developed, or intend to develop, the Subject Property with, among other things, buildings, structures, parking and parking areas, driveways, driveway approaches, storm water drainage, emergency accesses and other requirements in accordance with the approved Special Permit application designated as Conditional Use Permit Nos. C-08- 001 and 0-08-049 and any amendments thereto, hereinafter referred to as "Special Permit," in such a manner that each parcel of the Subject Property will be compelled to use portions of other parcels of the Subject Property; and WHEREAS, the City of Fresno is unable to find that Parcel Map No. 2008-01 is in substantial compliance with the Conditions of Approval for Vesting Tentative Parcel Map No. 2008-01 dated May 9, 2008 ("Tentative Map") until the Covenantors provides assurances that such improvements and buildings will be constructed and maintained in compliance with the Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 3 conditions of approval of the Special Permit, Tentative Map, the California Building Code and the Fresno Municipal Code. COVENANTS, CONDITIONS AND RESTRICTIONS In consideration of the approval and recording of said Parcel Map by the City of Fresno, Covenantors hereby covenant 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 shall run with the Subject Property and shall be binding upon and inure to the benefit of each successive owner of the Subject Property and his or her heirs, successors, and assigns. 1. Each parcel of the Subject Property shall be developed and used in such a manner as to enable reciprocal cross access between and among the parcels as approved by the City of Fresno in the Special Permit, regardless of whether the parcels of the Subject Property are owned or leased by the same or different persons for the following purposes: a. Pedestrian and vehicular ingress and egress; b. Shared parking; and C. Drainage for storm water and storm water facilities; 2. A parking area or parking spaces that comply with the requirements of the Fresno Municipal Code shall be provided for each facility constructed an the Subject Property. Except for the parking area and spaces specifically identified in that certain Reciprocal Easement Agreement dated September 6, 2007, between Gyda Land Company, Inc., a California corporation, and Copper & Maple Associates, LLC, a Delaware limited liability company ("C&M"), recorded on September 7, 2007 as Document No. 2007-0167971 (the • Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 4 "REA"), pursuant to which C&M previously acquired certain parking rights in the "Parking Easement Area" described in the REA which is located on the real property described in Exhibit A to this Statement, a parking area or parking spaces provided for one facility shall not satisfy, in whole or in part, the parking requirements for any other facility constructed on the Subject Property in accordance with Section 12-306-1-2.1-b of the Fresno Municipal Code. 3. Mutual easements appurtenant are hereby created and apply to each parcel of the Subject Property as a burden and benefit, to satisfy the need for cross access. 4. Any buildings or structures constructed on any parcel of the Subject Property must comply with -the prevailing California Building Code. 5. Covenantors shall maintain and repair the improvements and buildings, in such a manner that will not limit or impair such mutual non-exclusive uses across parcel lines within the Subject Property, in compliance with the approved Special Permit, Tentative Map, the California Building Code and the Fresno Municipal Code. 6. At such time Covenantors or subsequent owner(s) sells or transfers any parcel of the Subject Property, the owner shall disclose this Statement to the buyer and reserve and except from the deed for the parcel(s), the terms of this Statement. 7. The conditions of this Statement are intended to benefit the public and public properties as well as properties appurtenant. Failure to comply with the terms of this Statement may result in the revocation of the Certificate of Occupancy or Special Permit by the City for use of any Parcel of the Subject property involved. Accordingly, the City of Fresno shall have the right to enforce this Statement by any legal or equitable means. 8. Each of the covenants, conditions, and restrictions contained in this Statement shall run with the Subject Property and shall be binding on each successive owner of the Subject Property, his heirs, representatives, successors, and assigns. Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 5 9. In the event that litigation is instituted to enforce or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 10. The conditions and obligations of this Statement shall remain in full force and effect until such time as the Planning and Development Director of the City of Fresno issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 11. The provisions of this Statement 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 so requires, in interpreting this Statement, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. [SIGNATURES ON FOLLOWING PAGE.] Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 6 DATED: b6CCAWJ6R 2,, XOr CITY OF FRESNO, a Municipal Corporation Planning and Development Department Nick P. Yovino, Director Keith Bergtho d, A istant Director APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: Clel 'Ji q' N hn W. Fox Deputy City Attorney Date: ta7 �S CLERK'S CERTIFICATION State of California ) County of Fresno ) On December 2, 2008, before me, Jennifer Morelos, Deputy City Clerk, City of Fresno, personally appeared, Keith Bergthold, Assistant Director, 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) 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. REBECCA E. KLISCH, CMC City Clerk, City of Fresno r- OBy epulb Statement of Covenants#2 Affecting Land Development Parcel Map No. 2008-01 Page 7 COVENANTOR GYDA LAND MPANY, INC., a Californi r oration By: 17 M Donald, resident AMENDOLA INVESTMENTS, LLC a California Limited Liability Company By: Lou Amendola, President RICHARD M. AARON AND NANCY S. AARON, Co-Trustees of the Aaron F�iI Trust Dated Oc r 6, 2006 By: Richard M. Aaron By: 2 ancy Aaron BETYE L TH, a Single Wo (Attach Notary Acknowledgments) By: Bettye L. Sr h Statement of Covenants#2 Affecting Land Development Parcel Map No.2008-01 Page 8 COVENANTOR COPPER & MAPLE ASSOCIATES, LLC, a Delaware limited liability company By. \3 . l Robe �. Wilson, Trust of the I son Family 2004 Trust, Managing Member ACKNOWLEDGMENT State of California ) County of J974ro ) On � _ �� I'Jb before me, (here insert name and title of the officer personally appeared who proved to me on the basis of satisfactory evidence to be the person(o whose name(s r is/fie subscribed to the within instrument and acknowledged to me that he/ executed the same in his/lair authorized capacity(), and that by his/henth*r signature(0) on the instrument the person(%j, 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. PAMELA L. GOLDWATER Commission # 1716197 IL WITNESS my hand and official seal. .+ Notary Public •California Fresno County Comm.ExpirwJan 12;3011 Signature —Q4V'e� (Seal) ACKNOWLEDGMENT State of California ) County of _F-te 13 0 ) On 06:62btr 61 ADO S' before me, A*wq` L (here insert name and title of the offs er) personally appeared C1 C how& m . Aanom &"dac.I�Q�1r1 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. DONNA L,WELKER� Comhi.#1795211 tton NOTARY PUBLIC-CALIFORNIA U7 FRESNO COUNTY Signature p.► MY CONN.EX P.APR.20,2U!12 (Seal) ACKNOWLEDGMENT State of California ) County of Fresno ) On October 6, 2008 before me, Pamela L. Goldwater,Notary Public personally appeared Lou Amendola, who proved to me on the basis of satisfactory evidence to be the person(4 whose name(4 is/,vc* subscribed to the within instrument and acknowledged to me that he/s4teftim-7 executed the same in his/kerfttreir authorized capacity(ieS), and that by hist signature(o) on the instrument the person($), or the entity upon behalf of which the persons 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. PAMELA L. GOLDWATER Commission # 1716197 "e Notary Public - California WITNESS my hand and official seal. Fresno County Comm.F, ire6 Jon 12.2011 Signature U C (Seal) ACKNOWLEDGMENT State of California ) County of �'tb ) Onbefore me, (here insert name and title of the officer) personally appeared W, who proved to me on the basis of satisfactory evidence to be the personwwhose name((#is/ape subscribed to the within instrument and acknowledged to me that k&she/thgg executed the same in {/her/#iLFirauthorized capacity(ioPj, and that by Ifssther/t4rrsignature(jPf 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. PAMELA L. GOLDWATER Commission # 1716197 WITNESS my hand and official seal. Notary Public -CaliforniaFresno County comm Jnn 12,2x11 Signature (Seal) STATE OF CALIFORNIA ) ss. COUNTY OF FRESNO ) On ��ir 200 before me, � , Notary Public, personally appeared ,r who proved to me on the basis of satisfactory evidence to be the persons whose nameW is/are subscribed to the ithin instrument and acknowledged to me that he/she/they executed the same in his her/their authorized capacity(4Q&), and that b his her/their signature`) on the ins ment the person(s), or the entity upon behalf oT 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. ITNE my hand and offici I s-61. (SEAL) PMMMA A.KAKU Commkslon#E 1626604 toa Anq*N8 CoUn1y My Comm.bom Nov 18.200! SUBORDINATION The undersigned is holder of the beneficial interest in and under that certain "Deed of Trust With Assignment of Rents" recorded on August 29, 2007, in the Official Records of Fresno County, California, as Instrument No. 2007-0162516, among Gyda Land Company, Inc., a California corporation, as "Trustor", Financial Title Company, a California corporation, as "Trustee", and Copper River Ranch LLC, a California limited liability company, as "Beneficiary" (the "Deed of Trust"). Beneficiary expressly subordinates the Deed of Trust and its beneficial interest under the Deed of Trust to that certain: "Statement of Covenants #2 Affecting Land Development to Create Mutual Easements and Reciprocal Uses for Parcel Map 2008-01", to which this Subordination is attached, and as the same may be amended in the future according to its terms (the "Senior Instrument"). By executing this Subordination, Beneficiary agrees that should it acquire title to all or any portion of the real property encumbered by the Deed of Trust by foreclosure (whether judicial or non-judicial), deed-in-lieu of foreclosure, or any other remedy in or relating to the Deed of Trust, it will acquire such title subject to the provisions of the Senior Instrument, which shall remain in full force and effect. Dated: � f� , 2008 Copp er Ra cLha Califo 'eor!1p y_ By arylMcDonald arid Assemi irst Vice President Title: President STATE OF CALIFORNIA ) ss. COUNTY OF FRESNO ) CO- On 200�, before me, ,. Notary Public, personally appeared ML rZ - 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 he0lre/they executed the same in /their authorized capacity(ies), and that by h*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. PAMELA L. GOLDWATER Commission # 1716197 •"� Notary Public - California Fresno County MyComm.Exi esk3n12,2011 (SEAL) SUBORDINATION The undersigned is holder of the beneficial interest in and under that certain "Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing" recorded on April 29, 2008, in the Official Records of Fresno County, California, as Instrument No. 2008-0161673, among Copper & Maple Associates, LLC, a Delaware limited liability company, as "Trustor", Chicago Title Company, as "Trustee", and City National Bank, a national banking association, as "Beneficiary" (the "Deed of Trust"). Beneficiary expressly subordinates the Deed of Trust and its beneficial interest under the Deed of Trust to that certain: "Statement of Covenants #2 Affecting Land Development to Create Mutual Easements and Reciprocal Uses for Parcel Map 2008-01", to which this Subordination is attached, and as the same may be amended in the future according to its terms (the "Senior Instrument"). By executing this Subordination, Beneficiary agrees that should it acquire title to all or any portion of the real property encumbered by the Deed of Trust by foreclosure (whether judicial or non-judicial), deed-in-lieu of foreclosure, or any other remedy in or relating to the Deed of Trust, it will acquire such title subject to the provisions of the Senior Instrument, which shall remain in full force and effect. Dated:_ \ `E� 2008 City National Bank, a national banking association i By: i.5q K 'sKe Cf Title: STATE OF CALIFORNIA ) nn ) COUNTY OF fRf -L-,r4 +�0J°I k j ) ss. Onc: `�Ler 1� 200 , before me, �Yl�! 1 e� G . , rc. - Notary Public, personally appeared L", c, Kk. ke who proved to me on the basis of satisfactory evidence to be the personW whose name{-s-) is/ate subscribed to the within instrument and acknowledged to me that -lcte/she/they executed the same in #Fs/her/thAmp authorized capacity(+e&), and that by #Fs/her/-t+� signature(--4 on the instrument the personal, 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. SHELLV C. ERCEK WITNESS my hand and official seal. 1 Cam�llon i 1662507 i / Notary Publ>c•Comnlo _ t od AnOele�County My Comm.Explre3 Apr (SEAL) EXHIBIT "A" Parcels A, B, and C of Parcel Map No. 2008-01 according to the map thereof recorded in Book_ ��of Parcel Maps at Pages q4y9 t y 8 , Fresno County Records, EXHIBIT "B" Parcel D of Lot Line Adjustment 2007-41, as described in Document No. 2007-0167969, of Official Records of Fresno County, and more particularly described as follows: That certain real property situate in the southwest quarter of Section 12, Township 12 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, being more particularly described as follows: Being a portion of Outlot "R" of the Amending Map of Tract No. 5205, "Terrabella at Copper River Ranch", recorded in Volume 76 of Plats, at Pages 46-70, Fresno County Records, more particularly described as follows: Beginning at the southwest corner of said Outlot "R"; thence 1) North 36' 18' 51" West, along the east line of said Outlot "R", a distance of 24.44 feet; thence continuing along said east line 2) North 00° 13' 47" East, a distance of 186.46 feet; thence 3) North 430 21' 32" East, a distance of 11.62 feet; thence 4) North 900 00' 00" East, a distance of 10.12 feet; thence 5) North 200 44' 58" West, a distance of 60.29 feet; thence 6) North 49° 13' 03"West, a distance of 11.76 feet; thence 7) North 01 °38' 58"West, a distance of 58.49 feet; thence 8) North 55° 11' 41" East, a distance of 7.16 feet; thence 9) North 01 °37' 27" West, a distance of 6.74 feet, to the beginning of a tangent curve concave southerly and having a radius of 34.00 feet; thence leaving said east line 10) northwesterly, along the arc of said tangent curve, through a central angle of 113°29' 38", an arc length of 67.35 feet, to the beginning of a reverse curve concave northerly and having a radius of 538.00 feet, said curve also being on the north boundary of said Outlot "R"; thence continuing along said north boundary 11) easterly, along the arc of said reverse curve, through a central angle of 09044' 19", an arc length of 91.44 feet; thence 12) South 450 00' 00" East, a distance of 3.67 feet, to the beginning of a non- tangent curve concave northerly and having a radius of 540.00 feet, a radial to said point bears South 11 °48' 15"West; thence 13) easterly, along the arc of said non-tangent curve, through central angle of 051, 42' 42", an arc length of 53.83 feet, to the southwest corner of Outlot "W" of said Amending Map of Tract No. 5205, said point also being the beginning of a non-tangent curve concave northerly and having a radius of 540.00 feet, a radial to said point bears South 060 05' 33"West; thence leaving said north boundary 14) easterly, along the arc of said non-tangent curve, through a central angle of 10° 09' 55", an arc length of 95.81 feet, along the shared boundary between said Outlots "R" and "W"; thence continuing along said shared boundary 15) North 85°55' 38" East, a distance of 70.43 feet, to the beginning of a tangent curve concave northerly and having a radius of 336.00 feet; thence 16) easterly, along the arc of said tangent curve, through a central angle of 38°39' 36", an arc length of 226.71 feet; thence leaving said shared boundary 17) South 34°28' 35" East, a distance of 148.50 feet; thence 18) North 88°48' 56" East, a distance of 182.97 feet; thence 19) South 01 ° 11' 04" East, a distance of 230.15 feet; thence 20) North 88°48' 56" East, a distance of 17.00 feet; thence 21) South 01 ° 11' 08" East, a distance of 78.00 feet, to the south line of said Outlot "R"; thence 22) South 88'48' 51"West, along said south line, a distance of 550.55 feet, to the beginning of a non-tangent curve concave northeasterly and having a radius of 22.00 feet, a radial to said point bears South 02047' 32" East; thence 23) northwesterly, along the arc of said non-tangent curve, through a central angle of 36°51' 19", an arc length of 14.15 feet to the beginning of a reverse curve concave southwesterly and having a radius of 38.00 feet; thence 24) northwesterly, along the arc of said reverse curve, through a central angle of 35 0 14' 51", an arc distance of 23.38 feet; thence 25) South 88°48' 56"West, a distance of 243.25 feet, to the Point of Beginning. Together with a portion of Outlot "W" of said Amending Map of Tract No. 5205, being more particularly described as follows: Beginning at the southwest corner of said Outlot "W"; thence 1) North 060 05' 33" East, along the west line of said Outlot "W", a distance of 76.00 feet, to the northwest corner of said Outlot "W", said point also being on the beginning of a non-tangent curve concave northerly and having a radius of 464.00 feet, a radial to said point bears South 060 05' 33"West, said point also being on the shared boundary between said Outlot "W" and Outlot "J" of said Amending Map of Tract No. 5205; thence 2) easterly, along the arc of said non-tangent curve, through a central angle of 070 14' 42", an arc length of 58.67 feet; thence continuing along said shared boundary 3) North 88°50' 51" East, a distance of 83.90 feet, to the beginning of a tangent curve concave northwesterly and having a radius of 264.00 feet; thence 4) northeasterly, along the arc of said tangent curve, through a central angle of 71 ° 33' 51", an arc length of 329.74 feet; thence leaving said shared boundary line 5) South 790 18' 59" East, a distance of 72.38 feet to a point on the beginning of a non-tangent curve concave northwesterly and having a radius of 336.00 feet, a radial to said point bears South 740 08' 07" East, said point also being on the shared boundary of said Outlots "R" and "W"; thence continuing along said shared boundary 6) southwesterly, along the arc of said non-tangent curve, through a central angle of 31 °56' 38", an arc length of 187.33 feet, to the beginning of a non-tangent curve concave northwesterly and having a radius of 336.00 feet, a radial to said point bears South 420 11' 29" East; thence 7) southwesterly, along the arc of said non-tangent curve, through a central angle of 38°39' 36", an arc length of 226.71 feet; thence 8) South 850 55' 38"West, a distance of 70.43 feet, to the beginning of a tangent curve concave northerly and having a radius of 540.00 feet; thence 9) westerly, along the arc of said tangent curve, through a central angle of 100 09' 55", an arc length of 95.81 feet to the Point of Beginning.