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HomeMy WebLinkAboutT-5171 - Agreement/Covenant - 6/12/2006 (3):t Recording Requested by: a City Clerk 0610�I�006,�006011569� City of Fresno 12600 Fresno Street Fresno, Ca 93721-3603 No Fee-Govt. Code 6103 CITY OF FRESNO Planning and Development Department n P.W. File No. 10749 LU ZE Of Q_ C:) �' � o Z U U STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR LANDSCAPING AND MAINTAINING AN OFF-SITE OPEN SPACE FACILITY FOR TRACT NO. 5171, PHASE 1 OF VESTING TENTATIVE MAP NO. 5171 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5171 Page 2 WHEREAS, SUNRIDGE DEVELOPMENTS, a California Limited Partnership„ hereinafter referred to as the "Covenantor;" and WHEREAS, Owner 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, Owner 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, Subdivider has filed with the City of Fresno, Vesting Tentative Map No. 5171 which was approved by the Fresno City Planning Commission on April 7, 2004, hereinafter referred to as the "Tentative Map" and incorporated into this Statement by this reference; and WHEREAS,a condition of approval for the Tentative Map,in accordance with the provisions of the Roosevelt Community Plan Policies Nos. 1-17.1 and 1-17.3, requires the Subdivider to provide 1.95 acres (5% of the gross area of the Tentative Map) for public common open space purposes or provide an equivalent amount of area for 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 City of Fresno requires as a condition of approval of the Final Map, the provision of a proportionate amount of the Total Open Space Area with each final map phase; and WHEREAS, the Subdivider has filed with the City of Fresno, a Final Map of Tract No. 5171 (Phase 1 of Vesting Tentative Map No. 5171) pursuant to said Tentative Map, hereinafter referred to as the "Final Map," which provides 0.20 acres of open space area; and Statement of Covenants _Landscaping and Maintaining of an Open Space Area Tract No. 5171 Page 3 WHEREAS, the Final Map is required to provide at least 0.86 acres of the Total Open Space Area; and WHEREAS, the Subdivider has elected to satisfy the balance (0.66 acres) of the open space area required for the Final Map on the Subject Property; 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 Owner 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 Owner 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. . 1 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5171 Page 4 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 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 60`h dwelling in Tract No. 5171. 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 in such manner acceptable to the Public Works Director until such time as the City notifies the Covenantor that such maintenance responsibility has been assumed by the City's Community Facilities District designated or assign to said map. 8. The maintenance of the Open Space Facility shall remain the responsibility of the Covenantor and shall not remove the City's ability to enforce the provision of the agreement by any legal or equitable means. 9. The Owner 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 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5171 Page 5 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. 10. 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. 11. 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 save 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. 12. he 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. Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5171 Page 6 13. 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. T 14. 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. 5171 Page 7 DATED: CITY OF FRESNO, COVENANTOR (Owner) a Municipal Corporation SUNRIDGE DEVELOPMENTS A California Limited Partnership By: AABy: Northern California Universal Enterprises, Co. Yovino, Director Planning and A California Corporation D lopment Department As General Partner /By-: " ai-Chang WuPresident APPROVED AS TO FORM: JAMES C. SANCHEZInterim City Attorney i Chan u, President (: 1�0 By Deputy (Attach Notary Acknowledgment) Covenant-Open Space Area 4-20-04 Rev.03/22/06 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } County of 22nto OA A.fq } On before me, ryby-le taku ei ► IptaYU fittu' personally appeared_ ����- �Q-1— Cho o Y1nl ❑ Personally known to me OR proved to me on the basis of satisfactory evidence to be the persontQ whose name( (Yare subscribed to thewithin instrument and acknowledged to me that e she/they executed the same i Jpher/their authorized capacity0eQ, and that by l cher/their signature(` on the instrument the persor*Q, or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. MARIE LA RUE Commission# 1503444 OlAy Notary Public-California Santa Clara County Signature of tary Comm.Expires Jul 27,2008 Name (Typed or Printed) (Area above for official notarial seal) Capacity Claimed by Signer Description of Attached Document ❑ Individual(s) (Although this information is optional, it could prevent fraudulent P'Corporate Officer(s) - Title(s, attachment of this certificate to another document.) lot ICU - pry din t This certificate is for attachment to the document described below: Title or type of document �a# ent of ❑ Partner(s) oyd ❑ Attorney-in-Fact ft alniha an �l �(Cf O"q ❑ Trustee.(s) ❑ Guardian/Conservator Number of pages �( 7QGiE-S ❑ Other: Date of document Signer(s) other than named above , t Signer is Representing: Name of person(s) or �_�(N nQ Entity(ies) zameS 1 c LZ= Tract No. 5171 P.W. File No. 10749 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 22, ?nn6 , in the office of the Fresno County Recorder, Document No. _ 2006-0037326 , Official Records of which the Deed of Trust in by and between Sunridge Developments, a California limited partnership , as Trustor, First American Title , as Trustee and Pacific State 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 Landscaping and Maintaining an Off-Site Open Space Facility for Tract No. 5171, Phase 1 of Vesting Tentative Map No. 5171. DATED: MArrh 15 , 20Lf,____ BENEFIC RY By: Gary A. tewart, EVP/CCO By: (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of California County of �._ °� 1Ct'�;i.� c ss. On 0 MO) ��� �� �K before me, Olt NGjejfy /cW, Dele Nama and Itle of OOlcer(e.g.,"Jane Doe,Notary Public") personally appeared CIO((11 ii Name(s)of Signers) i3oersonally known to me ❑ proved to me on the basis of satisfactory evidence l to be the persons) whose named) is/Wt + subscribed to the within instrument and ) DIANNA SCOTT acknowledged to me that he/ire/,tt'iey executed i Commission# 1463335 the same in his/ter/tpbir authorized >I Notary Public-California capacity(iis), and that by his/or/tVeir ' San Joaquin County signature(A on the instrument the person(t), or l My Comm.Expires Jan 17,2008 the entity upon behalf of which the person(A)I acted, executed the instrument. , WITH SSS my hand and official eal. Signature of Notary Public ) I i ( I OPTIONAL i T ugh the information below is not required by law,it may prove valuable to persons relying on the document and could pr nt i, fraudulent removal and reattachment of this form to another document. Descrip n of Attached Document Title or Type of Do ent: I Document Date: Num er of Pages: I �l Signer(s)Other Than Named Abo I ,I I Capacity(ies) Claimed by Signer Signer's Name: � / VICHON i ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact 1 ❑ Trustee ❑ Guardian or Conse or ❑ Other: Signer Is Rep/senting: i ( 0 1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.nationalnolary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 CLERK'S CERTIFICATION State of California) County of Fresno) On May 16, 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared, Nick P. Yovino. Planning and Development Director, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to be 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. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK, CMC e 0 By Deputy EXHIBIT "A" Legal Description for Subject Property providing Off-Site Open Space Facility for Tract No. 5171 That portion of the Southeast Quarter of Section 17, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, described as follows: BEGINNING at the Northwest corner of Tract No. 4188, recorded in Volume 60, Pages 60, 60 and 62 of Plats, Fresno County Records, said point being on the West line of said Southeast Quarter; thence North 0042'45" West, along the West line of said Southeast Quarter, a distance of 253.59 feet to the intersection with the centerline of the Washington Colony Canal;thence North 38001'43" East,along said centerline, a distance of 4.28 feet; thence North 21032'48" East, along said centerline, a distance of 193.97 feet; thence North 23024'56" East, a distance of 189.82 feet;thence North 34031'43" East, along said centerline, a distance of 183.22 feet; thence South 89026'25" East, a distance of 1426.66 feet to the Northwest corner of Lot 56 of Tract No. 5171, recorded in Volume , Pages , and of Plats, Fresno County Records; thence along the boundary of said Tract No. 5171 the following courses; South 0033'35" West, 357.00 feet; North 89026'25" West, 92.50 feet; North 44026'25" West, 17.68 feet; North 89026'25" West, 50.00 feet, South 0033'35" West, 11.50 feet; North 89026'25" West, 100.00 feet; South 0033'35"West, 253.00 feet; North 89026'25"West, 56.02 feet; South 0033'35"West, 50.00 feet; South 44026'25" East, 17.68 feet; South 0033'35" West, 88.51 feet to the Northeast corner of Lot 14 of Tract No. 5103, recorded in Volume 68, Pages 48 and 49 of Plats, Fresno County Records; thence North 89038'40" West, along the North line of said Tract No. 5103 and the North line of said Tract No. 4188, a distance of 1370.70 feet to the Point of Beginning. EXHIBIT "B" Legal Description for Off-Site Open Space Facility for Tract No. 5171 That portion of the Southeast Quarter of Section 17, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, described as follows: BEGINNING at a point on the North line of Tract No. 4188, recorded in Volume 60, Pages 60, 61 and 62 of Plats, Fresno County Records, South 89038'40" East, a distance of 150.00 feet from the Northwest corner of said Tract No. 4188; thence North 0021'20" East, a distance of 165.00 feet; thence South 89038'40" East, a distance of 174.24 feet; thence South 0021'20" West, a distance of 165.00 feet to the intersection with said North line of Tract No. 4188; thence North 89038'40" West, a distance of 174.24 fee to the POINT OF BEGINNING.