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HomeMy WebLinkAboutT-5235 - Agreement/Covenant - 12/13/2005 (4) 45- Recording Requested by: City Clerk City of Fresno 2600 Fresno Street 12005,20050289956 Fresno, Ca 93721-3603 O Z No Fee-Govt. Code 6103 O V W CITY OF FRESNO QPlanning and Development Department LU P.W. File No. 10779 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR LANDSCAPING AND MAINTAINING AN OFF-SITE OPEN SPACE FACILITY FOR THE FINAL MAP OF TRACT NO. 5235 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 2 WHEREAS, KB RESALE PROPERTIES, INC., a California Corporation, hereinafter referred to as the "Owner" and KB HOME SOUTH BAY INC., a California Corporation, hereinafter referred to as the "Subdivider" and together are 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. 5235 which was approved by the Fresno City Planning Commission on April 21, 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 2.83 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 Subdivider has filed with the City of Fresno, a Final Map of Tract No. 5235 pursuant to said Tentative Map, hereinafter referred to as the "Final Map," which provides 1.45 acres of open space area; and , Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 3 WHEREAS,the Subdivider has elected to satisfy the balance(1.38 acres)of the Total 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 Total 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. 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 0pen Space Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 4 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 1201h dwelling in Tract No. 5235. 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 Seventy-Two Thousand Two Hundred dollars ($72,200), 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 provision of the agreement by any legal or equitable means. 10. 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 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 5 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 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. 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 Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 6 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. r Statement of Covenants Landscaping and Maintaining of an Open Space Area Tract No. 5235 Page 7 DATED: //1//10 9 CITY OF FRESNO, COVENANTOR (Owner) a Municipal Corporation KB RESALE PROPERTIES, INC., a California Corporatio By: By: Nick P. Y tino, Director P.A. [Augie] Dent III, Planning d Development Department Senior Vice President COVENANTOR (Subdivider) APPROVED AS TO FORM: KB HOME SOUTH BAY INC., HILDA CANT -MONTY a California Corporation City A for By - By: Deputy P.A. Dent III, Senior Vice President (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of M0 Y7 1 On Loe'-iDbcX ay, owOJ before me, d-• D/1��50/� Date Name and Title of Officer(e.g.,'Jane Doe,Notary Public") personally appeared • 14• CIqua t c De i_i .=1 Name(s))o�of Signer(s) NIpersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are T.S.R081NSON subscribed to the within instrument and Commission#1431096 [ acknowledged to me that he/she/they executed a Notary Public-CaBtomla the same in his/her/their authorized •+ �; Monterey County capacity(ies), and that by his/her/their My Comm.Expires Jul 18.2007 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. UQ_— lure of Notary frublic 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: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ®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 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Maly County of !t7 _ - ss. On loc& -ej- � before me, Date Name and Ttle of Officer(e.g.,"Jane Doe,Notary Public") personally appeared b8" Name(s)of Signer(s) ersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed RO>98 to the within instrument and acknowledged to me that 010rVP ton-1646469 Nofary P�Nc-CaNfomta he/she/they executed the same in his/her/their -: AllaMedo CountV authorized capacity(ies), and that by his/her/their My Comm.EXPkW ,yppq 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. Place Notary Seal Above `^�`•�"'r . Signature of Notary Public o 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 T pe of Document: Document Date.' _ Number of Pages: Signer(s) Other Than Name ove: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual Individual ❑ Corporate Officer—Title(s): ❑ rate Officer—Title(s): ❑ Partner—❑Limited ❑ General ❑ Partner Limited ❑ General ❑ Attorneyin Fact El Attorney in Fa Top of thumb here y Top of thumb here ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: ©2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827 r CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On `790uyrti.L-E-L- 2- , 20 45 before me, ��— personally appeared Nick P. Yovino, Planning and Development Director, personally known to me (or provided to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of the CITY OF FRESNO of which the person acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH, CMC CITY CLERK �1laYy"^wrr��� Al " By r� L K:yonb\Map docsTinal Maps\FM 5235\T-5235 Sub Docs\T-5235 Covenant off-site open space.wpd A EXHIBIT A BEGINNING AT THE NORTHEAST CORNER OF THE SOUTH HALF OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 17, SAID POINT BEING ON THE WEST LINE OF PARCEL 2 OF PARCEL MAP NO. 4359, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 30 OF PARCEL MAPS AT PAGE 41,FRESNO COUNTY RECORDS; THENCE NORTH 01029'36" WEST ALONG THE WEST LINE OF SAID PARCEL 2, A DISTANCE OF 992.07 FEET TO THE NORTHWEST CORNER OF SAID PARCEL 2; THENCE ALONG THE BOUNDARY OF SAID PARCEL 2,THE FOLLOWING COURSES: NORTH 89027'06"EAST,A DISTANCE OF 799.58 FEET;THENCE SOUTH 01 043'00"EAST,A DISTANCE OF 579.81 FEET;THENCE NORTH 88017'00"EAST,A DISTANCE OF 530.00 FEET;THENCE SOUTH 01 043'00"EAST,A DISTANCE OF 310.00 FEET;THENCE SOUTH 88017'00" WEST,A DISTANCE OF 342.22 FEET;THENCE SOUTH 01 043'00"EAST,A DISTANCE OF 200.00 FEET;THENCE NORTH 88017'00"EAST,A DISTANCE OF 342.22 FEET;THENCE SOUTH 01043'00" EAST, A DISTANCE OF A DISTANCE OF 940.44 FEET TO A POINT ON THE CENTERLINE OF FANCHER CREEK; THENCE WESTERLY ALONG THE CENTERLINE OF SAID FANCHER CREEK THE FOLLOWING COURSES: NORTH 65041'08"WEST,A DISTANCE OF 951.50 FEET;THENCE NORTH 85005'45"WEST,A DISTANCE OF 66.29 FEET;THENCE SOUTH 65008'55"WEST,A DISTANCE OF 133.70 FEET;THENCE SOUTH 29008'29" WEST,A DISTANCE OF 20.38 FEET;THENCE SOUTH 58032'25"WEST,A DISTANCE OF 24.50 FEET;THENCE SOUTH 53053'54"WEST,A DISTANCE OF 51.44 FEET;THENCE SOUTH 60022'50"WEST,A DISTANCE OF 51.55 FEET;THENCE SOUTH 70030'.10"WEST,A DISTANCE OF 56.99 FEET;THENCE SOUTH 76051'49" WEST,A DISTANCE OF 56.40 FEET;THENCE SOUTH 77036'00" WEST A DISTANCE OF 63.82 FEET;THENCE SOUTH 79016'01" WEST, A DISTANCE OF 0.66 FEET TO A POINT ON THE WEST LINE OF SAID PARCEL 2; THENCE NORTH 01029'16" WEST, ALONG THE WEST LINE OF SAID PARCEL 2, A DISTANCE OF 805.11 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ONE-QUARTER OF ALL THE OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS IN, UNDER AND WHICH MAY BE PRODUCED FROM SAID REAL PROPERTY, AND ONE-QUARTER OF ALL THE ROYALTIES, PAYMENTS, RIGHTS, AND BENEFITS RESERVED TO THE LESSOR IN ANY OIL, GAS, OR MINERAL LEASE OF SAID LAND, AND THE RIGHT TO ENTER UPON SAID REAL PROPERTY AND TO EXPLORE AND PROSPECT FOR AND STORE AND REMOVE SAID OIL, GAS, HYDROCARBONS AND MINERALS THEREFROM AND THE RIGHT TO CONSTRUCT AND MAINTAIN ON SAID LAND I SUCH ROADS, PIPE LINES, TELEPHONE LINES, TANKS, BUILDINGS, AND OTHER APPURTENANCES AS MAY BE REASONABLY NECESSARY OR INCIDENTAL TO SUCH OPERATIONS, AND TO EXERCISE SUCH OTHER RIGHTS, INCLUDING THE RIGHT OF INGRESS AND EGRESS, AS MAY BE REASONABLY NECESSARY OR INCIDENTAL THERETO, AS RESERVED IN THE DEED FROM MILTON G. COOPER & SON, INC., A CORPORATION, TO M. DUCEY AND MABLE DUCEY, HUSBAND AND WIFE, AS JOINT TENANTS, DATED MARCH 21, 1945,RECORDED MARCH 22, 1945 AS DOCUMENT NO. 11687,OFFICIAL RECORDS. APN 481-300-33S OPEN SPACE AREA EXHIBIT `B" LEGAL DESCRIPTION BEING A PORTION OF THAT CERTAIN PARCEL DESCRIBED BY DEED AND FILED FOR RECORD AS DOCUMENT NO. 2005-0009214, OFFICIAL RECORDS OF FRESNO COUNTY, LYING WITHIN THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:. COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHWEST QUARTER OF SECTION 17, SAID POINT ALSO BEING THE NORTHEAST CORNER OF SAID PARCEL; THENCE SOUTH 1001'53" EAST, A DISTANCE OF 75.46 FEET, ALONG THE EAST LINE OF SAID SOUTHWEST QUARTER AND THE EAST LINE OF SAID PARCEL TO THE FUTURE SOUTH RIGHT-OF-WAY LINE OF EAST CHURCH AVENUE, AS SHOWN ON THAT CERTAIN MAP TITLED "OFFICIAL PLAN LINES FOR EAST CHURCH AVENUE" AND RECORDED IN VOLUME 7 OF PRECISE MAPS AT PAGE 67, OFFICIAL RECORDS OF FRESNO COUNTY AND ALSO BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 01001'53" EAST, A DISTANCE OF 314.14 FEET, CONTINUING ALONG SAID EAST LINE TO THE NORTHERLY BOUNDARY LINE AS SHOWN ON THAT CERTAIN MAP TITLED "TRACT NO. 4682" RECORDED IN BOOK 68 OF OFFICIAL PLATS AT PAGE 3; THENCE CONTINUING ALONG SAID NORTHERLY LINE, THE FOLLOWING FIVE (5) COURSES: NORTH 56026'18" WEST, A DISTANCE OF 11.12 FEET; THENCE NORTH 33020'06"EAST, A DISTANCE OF 14.63 FEET; THENCE NORTH 69058'27"WEST, A DISTANCE OF 61.03 FEET; THENCE NORTH 78059'40"WEST, A DISTANCE OF 58.71 FEET; THENCE SOUTH 89047'31" WEST, A DISTANCE OF 99.27 FEET; THENCE, LEAVING SAID NORTHERLY LINE, NORTH 01001'53" WEST, A DISTANCE OF 275.64 FEET TO SAID FUTURE SOUTH RIGHT-OF-WAY LINE; THENCE NORTH 89°48'06" EAST, A DISTANCE OF 67.57 FEET, ALONG SAID FUTURE SOUTH RIGHT-OF-WAY LINE TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 753.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE AND ALONG SAID FUTURE SOUTH RIGHT-OF-WAY LINE, THROUGH A CENTRAL ANGLE OF 605218", AN ARC DISTANCE OF 90.31 FEET; THENCE SOUTH 83019'36" EAST, A DISTANCE OF 57.33 FEET, ALONG SAID SOUTH RIGHT-OF-WAY LINE, TO THE TRUE POINT OF BEGINNING. CONTAINING 1.380 ACRES OR 60,113 SQUARE FEET,MORE OR LESS. T-5235 2005-100 15-A-7944 C:\Documents and Settings\AlanK\Local Settings\Temp\39022 OPEN SPACE DEDICATION LEGAL DESCRIPTION_2.doc NE LINE LI BEARINGS LENGTH (-XHI BI T "B " Ll S.01001'5J" E 75.46' L2 N 56026'18" W 11.12' CURVE DATA TABLE L3 N 33020'06" E 14.63' NO DELTA I RADIUS I LENGTH CH BEARING CHORD L4 N 69058`27" W 61.03' 1 1 6052'18" 1753.001 90.31' I N8604545"W 90.26' L5 N 78059'40" W 58.71' L6 S 89°47'31"W 99.27' A.P.N. 481-020-59S 3 W L7 N 89°48'06"E 67.57 DOCUMENT NO. 2005-0193467 FRESNO COUNTY OFFICIAL RECORDS o 2 L8 S 83°1936" E 57.33' - o• ry " WEST LINE OF SE 1/4 OF FUTURE TRACT 3235 ZI3 THE NW 1/4 OF SEC77ON 17 Lu T 14 S, R 21 E, M.D.B.&M. -1/4 CORNER OF SEC77ON 17, �:W T.14 S, R.21 E., M.D.B.& M. 2 I SW CORNER OF E 1/2 OF N.W 1/4 �I ....POINT OF CORNER OF THE SEC77ON 17 FUIURE EAST CHURCH COMMENCEMENT T 14 S, R 21 E, M.D.B.&M. AVENUE RIGHT-0/7-WAY..... ,O EAST CHURCH AVENUE N 8995123' E 1339.85 —..... N o — _ — POINT OF L 1•• BEGINNI G.__...:::::: ::` �Qo� L7 1 LB I I iu oog •�, ••••TEMPORARY STORM•••••••••••••• o DRAINAGE BASIN '" � � o v I Q A.P.N. 481-300-33S z 4 I DOCUMENT NO. 2005-_0009214 z FRESNO COUNTY OFFICIAL RECORDS AREA TO BE DEDICAT® AS AN z "OPEN SPACE AREA" 1.380 AC.)""'' L S o W 1 6d NO,14681 1 681- dP 13 I I l L2- EAST EUGENIA AVENUE I� EAST LINE OF NE 1/4 OF ...••••....• . � THE SW 1/4 OF SEC77ON 17 V T 14 S, R 21 E, M.D.M.&M. S,p LAND S/, SCALE 1" 200' No. 6953 THOMPSON-HYSELL * W.A-M-°' ENGINEERS 3fgjF g DnnOON OF THE KErm��s.NQ. OF CAS\E rmD (2.1.8) 62 •8988 FOA—(%2m,,)- .214046 COPYRIGHT ® 2005 THOMPSON—HYSELL ENGINEERS REF. a REV. C I T Y O F F R E S N O FI.D. 20FUUNDND NO. _ N 0 - DEPARTMENT OF PUBLIC WORKS ORC. NO. T_5235 DEDICATION FOR DR. BY DAN SHEET NO. 1 OPEN SPACE CH. BY uu OF 1 SHEETS DAA 15—A-7944 SOUTH OF F4STCHURCH AVENUE SCALE ,- e �^^•