HomeMy WebLinkAboutT-5294 - Agreement/Covenant - 9/13/2006 (3) -Recording Requested by:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, Ca 93721-3603
091011 2006,20060188483
No Fee-Govt. Code 6103
CITY OF FRESNO
Planning and Development Department
P.W. File No. 10910
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0 o STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
C:) FOR LANDSCAPING AND MAINTAINING AN OPEN SPACE AREA
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FACILITY FOR THE FINAL MAP OF TRACT NO. 5294
Statement of Covenants
Landscaping and Maintaining an Open Space Area Facility
Tract No. 5294
Page 2
WHEREAS, BEAZER HOMES HOLDINDS CORP., a Delaware Corporation, hereinafter
referred to as "Covenantor;" 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 as:
Lot 9 of Tract No. 5294 according to the map thereof recorded on
2006 in Volume of Plats at Page(s)
Fresno County Records; and
WHEREAS, Covenator 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. 5294
which was approved by the Fresno City Planning Commission on October 6, 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 that 5% of the gross
area of the Tentative Map be provided for public common open space purposes or to 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 Covenantor has filed with the City of Fresno,a Final Map of Tract No. 5294
pursuant to said Tentative Map, hereinafter referred to as the"Final Map,"which provides does not
provide such required 5% open space area; and
9
Statement of Covenants
Landscaping and Maintaining an Open Space Area Facility
Tract No. 5294
Page 3
WHEREAS, the Covenantor, to satisfy the Open Space Area required for the Final Map,
has elected to utilize the Subject Property for open space area purposes and to annex the Subject
Property to the City's Community Facilities District No. 2 (CFD-2); 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 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 and the general public, the right to
enter upon the Subject Property for purposes of use and enjoyment of the open space area facility.
2. The Covenantor agrees that the Subject Property shall be used as a public open
space area facility ("Facility").
3. The Covenantor agrees to provide and install landscaping and irrigation system(s)
for the Facility in accordance with improvement/landscaping plans prepared in a form and manner
approved by the Planning and Development Department Director and the City Engineer. The
design of the Facility, including fencing when required, shall conform to conditions of approval of
Statement of Covenants
Landscaping and Maintaining an Open Space Area Facility
Tract No. 5294
Page 4
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. 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 Facility until such time
as the Facility has been accepted by the City.
6. The Covenantor agrees to maintain the Facility. The maintenance of the Facility
shall remain the responsibility of the Covenantor until such time as the City Engineer determines
and notifies Covenantor that such maintenance responsibility is assumed by CFD-2.
7. The Covenantor agrees to provide the Facility for the Final Map on the Subject
Property and agrees that such 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.
8. 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.
9. 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 Facility of said land covered by this Statement,
or any part thereof. The Covenantor hereby releases and agrees to indemnify, defend and save
S
Statement of Covenants
Landscaping and Maintaining an Open Space Area Facility
Tract No. 5294
Page 5
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 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 Facility hereinbefore specified, shall be at the sole and exclusive risk
of the Covenantor.
10. 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.
11. 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.
12. 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 an Open Space Area Facility
Tract No. 5294
Page 6
DATED: 0"/L
CITY OF FRESNO, COVENANTOR
a Municipal Corporation Beazer Homes Holding Corp.
a Delaware Corporation
By:
Nick To, Director Planning and Alan Newman, Vice President of Operations
Develt Department
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By 1
Deputy
(Attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of E, esrA C
On {�YL,tA1��� 1, before me, L Daq, /Voir ry��ll�
C�) DateII Name and Title o fficer(e.g.,"Jane Die,Notary Public")
personally appeared AlO Vt AjbwV) � ---
Name(s)of Signer(s)
lq S rsonally known to me
❑ 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
ROSA E. LONG signature(s) on the instrument the person(s), or the
Commkdon# 1631297 entity upon behalf of which the person(s) acted,
Nolaiy C°�O�O executed the instrument.
FINM CAU*
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WITNESS my ha d a official seal.
Place Notary Seal Above
Signature f 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 Doc ment L /
Title or Type of Document: cS I/�AV,°f'1 Q 1 (C_�I zi( D9y)LAK 1SGfe>7in 015--n
Document Date: _ — Number of Pages:
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Signer(s) Other Than Named Above: - -
Capacity(ies) Cl med by Signer(s)
Signer's Name: PLJVti',,6Ln Signer's Name:
❑ Individual ❑ Individual
Z--C-orporate Officer—Title(s): Ve &QS ❑ Corporate Officer—Title(s):
❑ Partner—❑ Limited ❑ General '
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11 Trustee [I Trustee
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❑ Guardian or Conservator ❑ Guardian or Co�rys rvator
❑ Other: -- ❑ Other:
Signer Is Representing:�Za-A- Signer Is epresenting:
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0 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
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On August 24. 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
d �
Deputy