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HomeMy WebLinkAboutT-4598 - Agreement/Covenant - 9/29/2005 (8) T , Recording Requested by: City Clerk City of Fresno 2600 Fresno Street t 0g/29/2005,20050230000 Fresno, Ca 93721-3603 L LJ No Fee-Govt. Code 6103 C= - O CITY OF FRESNO , Z V Planning and Development Department CD U STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR LANDSCAPING AND MAINTAINING AN OFF-SITE OPEN SPACE FACILITY FOR TRACT NO. 4598, PHASE 1 OF VESTING TENTATIVE MAP NO. 4598 a r � Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 4598 Page 2 WHEREAS, LAFFERTY GDCI FRESNO L.P.,a Delaware Limited Partnership, hereinafter referred to as the "Covenantor," is the owner of that certain real property in the City of Fresno, County of Fresno, State of California, and WHEREAS, Covenantor owns the real property situated in the City of Fresno, County of Fresno, State of California, hereinafter referred to as the."Subject Property"and more particularly described in Exhibit "A" attached hereto and incorporated herein; and WHEREAS, Covenantor hereby warrants that any and all parties having record title interest in the Subject Property which may ripen into a fee have subordinated to this instrument and that all such instruments of Subordination, if any, are attached hereto and made a part of this instrument; and WHEREAS, Covenantor has filed with the City of Fresno, Vesting Tentative Map No. 4598 which was approved by the Fresno City Council on August 31, 1993, hereinafter referred to as the "Tentative Map" and incorporated into this Statement by this reference; and WHEREAS,a condition of approval forthe Tentative Map,in accordance with the provisions of the Roosevelt Community Plan Policies Nos. 1717.1 and 1-17.3, requires the. Subdivider to provide 2.30 acres (5% of the gross area of the Tentative Map) for public common open space purposes or provide an equivalent amount of area in conjunction with an approved public or quasi- public open space within one-quarter mile of the Tentative Map, hereinafter referred to as the"Total Open Space Area;" and WHEREAS,the Covenantor has filed with the City of Fresno, a Final Map of Tract No.4598 (Phase 1 of Vesting Tentative Map No. 4598)pursuant to said Tentative Map, hereinafter referred to as the "Final Map,"which provides 0.66 acres of open,space area; and WHEREAS, the Final Map is required to provide at least 1.18 acres of the Total Open Space Area; and Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 4598 Page 3 WHEREAS, the Covenantor has elected to satisfy the balance (0.52 acres) of the open space area required for the Final Map on the Subject Property which is within 1/4 miles of the Tentative Map; and WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for the development and maintenance of the open space area on the Subject Property to satisfy the proportionate open space area obligation for the Final Map. COVENANTS, CONDITIONS, AND RESTRICTIONS The Covenantor hereby covenants that the Subject Property shall be held, conveyed, encumbered, used, occupied, developed, maintained, and improved subject to the following covenants, conditions, and restrictions, which are for the purpose of enhancing attractiveness, usefulness, value, desirability, and safety 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 heirs, successors, and assigns. 1. The Covenantor grants to the City of Fresno, the owners of all final maps of the Tentative Map and the general public,.the right to enter upon the Subject Property and the open space area for purposes of use and enjoyment of the open space area facility. 2. The Covenantor agrees that the area within the Subject Property, hereinafter referred to as the "Open Space Facility" and more particularly described in Exhibit "B" attached hereto and incorporated herein, shall be used as a public open space area facility. 3. The Covenantor agrees to provide and install landscaping and irrigation system(s) for the Open Space Facility in accordance with improvement/landscaping plans prepared in a form Statement of Covenants Landscaping and Maintaining of anbpen Space Area Tract No. 4598 Page 4 and manner approved by the Planning and Development Director. The design of the Open Space Facility, including fencing when required, shall conform to conditions of approval of the Tentative Map, the City of Fresno General Plan and the Roosevelt Community Plan and their policies. The cost of preparing such plans, including plan review and permits, shall be the responsibility of the Covenantor. 4. The work shall be constructed pursuant to any necessary permit issued by the Planning and Development Department. 5. The Open Space Facility shall be completed, inspected and accepted by the Planning and Development Department prior to occupancy of the 44th dwelling in Tract No. 4598, 6. Notwithstanding any provision of this Statement to the contrary,the Covenantor shall have the right to establish conditions and prohibitions on public access to the Open Space Facility until such time as the Open Space Facility has been accepted by the Planning and Development Department. 7. The Covenantor agrees to maintain said Open Space Facility. The Covenantor shall deposit with the City a maintenance security in the amount of Twenty-Five Thousand dollars ($25,000), in the form of a certificate of deposit or passbook assigned to the City or cash to insure continued maintenance of the Open Space Facility. 8. The maintenance security may be use by the City to defray all or part of the cost to maintain the Open Space Facility should the Covenantor fail to maintain said facility in accordance with the approved plans. 9. The maintenance of the Open Space Facility shall remain the responsibility of the Covenantor and the security deposit shall-not remove the City's ability to enforce the provisions of the agreement by any legal or equitable means, including an action to recover costs incurred by the City maintaining the Open Space Facility that are in excess of the$25,000.00 security deposit If the City is required to pursue any administrative or legal action to enforce this covenant, the City shall be entitled to its attorney's fees and costs. Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 4598 Page 5 10. The Covenantor agrees to provide the Open Space Facility for the Final Map on the Subject Property and agrees that such Open Space Facility shall satisfy only the open space area requirement for the Tentative Map and shall not be used to satisfy any open space area requirement which may be imposed on the Subject Property as a condition of development of the Subject Property or to reduce the Subject Property's gross acreage for the purpose of determining the Subject Property's open space area obligation. 11. This Statement shall in no way be construed as a grant by the City of Fresno of any rights to the Covenantor to trespass upon land rightfully in the possession of,or owned by another, whether such land be privately or publicly owned. 12. The City of.Fresno shall not be liable to the Covenantor or to any other person, firm or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in,on or about the Open Space Facility of said land covered by this Statement, or any part thereof. The Covenantor hereby releases and agrees to indemnify, defend and hold the City of Fresno harmless from and against any and all injuries to and deaths of persons, and all claims, demands, costs, loss damage and liability, howsoever same may be caused, resulting directly or indirectly from the performance of any or all work to be done in and upon the street rights-of-way and said Open Space Facility and upon the premises adjacent thereto pursuant to this Statement, and also from all injuries to and deaths of persons, and all claims, demands, costs, loss, damage and liability, howsoever same may be caused, either directly or indirectly made or suffered by the Covenantor, the Covenantor's agents, employees and subcontractors, while engaged in the performance of said work. The Covenantor further agrees that the use for any purpose and by any person of any and all of the Open Space Facility hereinbefore specified, shall be at the sole and exclusive risk of the Covenantor. Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 4598 Page 6 13. The conditions of this Statement are intended,to benefit both the Subject Property, the public and public properties. Accordingly, it is agreed the City of Fresno shall have the right to enforce this Statement by any legal or equitable means against the Covenantor and such person or persons in actual possession of the Subject Property who directly or who through any agent violate the terms hereof. 14. The foregoing conditions and obligations of this Statement shall remain in full force and effect until such time as the Planning and Development Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 15. 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 enforce ability 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. Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 4598 Page 7 DATED: CITY OF FRESNO, a Municipal Corporation COVENANTOR LAFFERTY GDCI FRESNO L.P. By: IjDevl vino, Director Planning and By: LAFFERTY/LANDCASTLE, LLC ent Department a'California Limited Liability Company its General Partner. By• APPROVED AS TO FORM: Laf rty, Managing Member HI LDA CANTO-MONTY City Att r ey By Deputy (Attach Notary Acknowledgment) Covenant-Open Space Area 4-20-04 Revised:09-15-2004 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California SS ss. County of _o r a 0_o A On 1, aS�b5 before me, Date Name and Ttlle of Officer(e.g.,"Jane Doe,Notary Public') personally appeared r` me(a)of Signer(s) rsonally known to me ❑ proved to me on the basis of satisfactory evidence to be the personks� whose name(* is/svp- CAROL BROWN subscribed to the within instrument and Coffwnb m#E 1674491 acknowledged to me that he/s-belt#ey executed NolalrRrft-Cowwft the same in his/hexl-ietr authorized C traColMay capacity(Le*, and that by his/heKl4 eir tMyCanm.LVMApr27rZ009 signature(s}on the instrument the person.( , or the entity upon behalf of which the persor4s}- acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: (L cof _v,aV�K - rJ T, oac,e A tc—ea Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: WWI"U ,NMI V0111 ❑ Individual Top of thumb here ❑ Corporate Officer--Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 01999 National'Notary Association-9350DeSoto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402-www.NationalNotary.org Prod.-No.5907 Reorder..Call Toll-Free 1-800-876-6827 f, CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On September 2, 2005, before me, Elvia Sommerville, Deputy City Clerk, personally appeared, Nick P. Yovino, Planning and Development Director , known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) 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(s) the person(s), or the entity upon behalf of the City of Fresno of which the person(s) acted, executed the instrument. WITNESS my hand and official City Seal. REBECCA E.,KL-ISCH,,,CMC CITY CLERK By Deputy September-2 2005(8:44am) rNJ Tract No. 4598/UGM P.W. File No. 10545 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on July 30, 2004, in the office of the Fresno County Records, Document No.20040167603,of which the Deed of Trust in by and between: Lafferty GDCI Fresno, L.P., a Delaware Limited Partnership as Trustor, Fidelity National Title Company, as Trustee, and Ohio Savings Bank, a federal savings bank, as Beneficiary, hereby expressly subordinates said.Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Landscape Maintenance an Off-Site Open Space Facility for Tract No. 4598, Phase I of Vesting Tentative Map Tract No. 4598/UGM DATED:, ZS. , 20 -0-5 TRUSTEE/ BENEFICIARY By: T B : L/ c- Pee-s i o 0Eg7Nl'V" (Attach.Notary Acknowledgment) Crlb,iL� 4 _ A-k WV CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of San Bernardino ISS. On July 26, 2005, before me, Thanhliem Brenda Le, Notary Public, personally appeared Victor P. Bessette, ® personally known tome ❑ proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to 9MyCoTHANHLIEM BRENDA the within instrument and acknowledged to me Commission# 1398188 [ that he executed the same in his authorized rnm.E)pIresFeb42007 Notary Public—Collfornio capacity, and that by his signature on the Son Bernordino County instrument the person, or the entity upon behalf of which the person acted, executed the instrumen E my hand do ' ial s Place Notary Seal Above Signature o Notary lic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Statement of Covenants Affecting Land Development for Landscaping and Maintaining an Off-Site Open Space Facility for Tract No.4598, Phase 1 of Vesting Tentative Map No. 4598 Document Date: N/A Number of Pages: 12 Signer Other Than Named Above: Capacity Claimed by Signer Signer's Name: Victor P. Bessette ❑ Individual ® Corporate Officer--Title: Vice President IT.pof"thumb ❑ Partner--❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Ohio Savings Bank Signer's Name: F RIGHT TI IUMBPRINT ❑ Individual ❑ Corporate Officer--Title: Top of thumb here ❑ Partner-- ❑ Limited ❑ General ❑ Attorney in Fact Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: p, 17 7r' CALIFORRNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of San Bernardino ISS. On July 29, 2005, before me, Thanhliem Brenda Le, Notary Public, personally appeared Gary L.Arnett, ® personally known tome ❑ proved to me on the basis of satisfactory evidence THA14HLIEM BRENDA U to be the person whose name is subscribed to Commission# 1398188 a W Notary Public—Collfomic the within instrument and acknowledged to me CBernprdlnoCo�un capacty, and that by his signature onthat he executed the same in his the he hAy Conxn..Exp><es instrument the person, or the entity upon behalf lin hich a person actet, executed the umN y hand nd o e Place Notary Seal Above 6igkoreL6N6 a OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Statement of Covenants Affecting Land Development for Landscaping and Maintaining an Off-Site Open Space Facility for Tract No.4598,Phase I of Vesting Tentative Map Tract no.4598 Date: NIA Number of Pages: 13 Signer Other Than Named Above: Capacity Claimed by Signer RIGHTITIUMBPRINT Signer's Name: Gary L.Arnett ❑ Individual Top of thumb here ® Corporate Officer--Title: vice President ❑ Partner-- ❑ Limited ❑ General ❑ Attorney in Fact Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Ohio Savings Bank Signer's Name: RIGHT THUMBPRINT ❑ Individual OF SIGNER ' ❑ Corporate Officer--Title: Top of thumb here ❑ Partner-- ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: EXHIBIT A That portion of the North Half of the Southeast Quarter of Section 10, Township 14 South, Range 21 East, Mount:Diablo Base and Meridian, described as follows: BEGINNING at a point on the North line of said North Half, a distance of 749.17 feet from the East Quarter corner of said Section 10;, thence S 89°50'0.1" W, along said North line, a distance of 771.00 feet; thence S 0°06'48" E, a distance of 744.00 feet; thence S 89°50'01" W, a distance of 257.30 feet; thence S 0°10'36" E, a distance of 110.35 feet; thence N 89°49'24" E, a distance of 57.62 feet; thence S 0°10'36" E, a distance of 482.00 feet to the intersection with the South line of said North Half; thence N 89°49'24" E,,along said South line, a distance of 970.03 feet; thence N 0006'48" W, a distance of 1,336.17 feet to the Point of Beginning. EXHIBIT B That portion of the North Half of the Southeast Quarter of Section 10, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, described as follows: BEGINNING at a point on the North line of said North Half, a distance of 749.17 feet from the East Quarter corner of said Section 10; thence S 89°50'01" W, along said North line, a distance of 100.00 feet; thence S 0006'48" E, a distance of 260.00 feet; thence N 89050'01" E, a distance of 100.00 feet; thence N 0006'48" W, a distance of 260.00 feet to the Point of Beginning.