HomeMy WebLinkAboutT-5358 - Agreement/Covenant - 7/15/2013 (10) RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
INMAN LAW GROUP,LLP
01 11512013,20130098620
Bruce R. Inman, Esq.
3053 Freeport Blvd.#309
Sacramento, California 95818
d
LL ELDERBERRY ON THE BLUFF
❑ RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
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[/7 This Elderberry on the Bluff Reciprocal Easement and Maintenance Agreement(the"Agreement")
Wis made by Lennar Fresno, Inc., a California corporation ("Declarant") and Elderberry on the Bluff
J Homeowners Association,a California nonprofit mutual benefit corporation(the"Association")with respect
LL
to the following facts:
RECITALS
A. The Declarant is developing a multiple-phase residential planned development consisting
of detached residences, some of which are served by privately owned roadways commonly known as
Elderberry on the Bluff(the "Development").
B. The Association is an "association" as defined in California Civil Code Section 1351(a),
formed for the purposes of managing and maintaining the privately owned roadways serving some the Lots
in Elderberry on the Bluff and for other matters. The organization,powers, and duties of the Association
will be established by the recording of a Declaration of Covenants, Conditions and Restrictions for
Elderberry on the Bluff(the"Restrictions"). The Restrictions will initially cover only a portion of Elderberry
on the Bluff('Phase 1). The Phase 1 property is described in Exhibit "A". It is the present intent of
Declarant to annex additional property (the "Subsequent Phase Property") to Elderberry on the Bluff and
subject it to the Restrictions over time as lots within the Subsequent Phase Property are created and
improved. The Subsequent Phase Property is described in Exhibit "B". Within the Subsequent Phase
Property are lots which will use private roadways (the "Lots Adjoining Private Roadway Outlot P' and the
"Lots Adjoining Private Roadway J"). The Lots Adjoining Private Roadway Outlot I are described in Exhibit
"C"and the Lots Adjoining Private Roadway J are described in Exhibit"D". As property that is part of the
Subsequent Phase Property is annexed to the Restrictions, and for which Association assessments have
commenced,the property so annexed ceases to be part of the Subsequent Phase Property,the Lots Adjoining
Private Roadway I, and the Lots Adjoining Private Roadway J.
C. Declarant owns the private roadways within Phase 1 that will serve Phase 1, the Lots
Adjoining Private Roadway Outlot I,and the Lots Adjoining Private Roadway Outlot J. Declarant intends
to convey the private roadways serving the Lots Adjoining Private Roadway Outlot I to the Association when
all the Lots Adjoining Private Roadway Outlot I are annexed to the Restrictions and upon the commencement
of Association regular assessments against all of the Lots Adjoining Private Roadway Outlot I. In addition,
Declarant intends to convey the private roadways serving the Lots Adjoining Private Roadway Outlot J to
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the Association when all the Lots Adjoining Private Roadway Outlot J are annexed to the Restrictions and
upon the commencement of Association regular assessments against all of the Lots Adjoining Private
Roadway Outlot J. The private roadways are more particularly described in Exhibit "E" (the "Outlot I
Private Roadways")and Exhibit"F" (the"Outlot J Private Roadways"). Included within the Outlot I Private
Roadways are 82, 279 sq.ft.of asphalt, an entry comprised of a motorized gate, entry phone kiosk, metal
gates/fence, entry signs, entry lighting, signage, and low entry wall. Included within the Outlot J Private
Roadways are 161,610 sq.ft. of asphalt, an entry comprised of a motorized gate, entry phone kiosk, metal
gates/fence, entry signs,entry lighting, signage,and low entry wall.
D. By this Agreement,Declarant reserves and grants a non-exclusive easement for vehicular
and pedestrian ingress and egress over the Outlot I Private Roadways and the Outlot J Private Roadways
(collectively the "Private Roadways").
E. Declarant and the Association intend that this Agreement shall inure to the benefit of and
be binding on successors and assigns who are owners of the Outlot I Private Roadways, Outlot J Private
Roadways, Phase 1, and the Subsequent Phase Property pursuant to California Civil Code Section 1468.
Declarant and the Association also intend this Agreement to define and establish maintenance obligations
with regard to the easement reserved and granted herein.
AGREEMENT
1. Grant and Reservation of Easements.
(a) Grant of Private Roadway Easement. For the benefit of the Lots in Phase 1,the Lots
Adjoining Private Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J, Declarant hereby
grants over that portion of the Private Roadways designed and constructed for road purposes a non-exclusive
easement("Private Roadway Easement")for ingress and egress by foot or vehicle to and from Phase 1 and
the Lots Adjoining Private Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J for the
purposes of residential use, construction, reconstruction, sale and maintenance of residences, and for the
installation maintenance and replacement of utilities. Such easement does not include use for commercial
purposes other than the construction, reconstruction, maintenance, sale or rental of residential lots and
residences. The Private Roadway Easement is hereby granted for the benefit of the Lots in Phase 1,the Lots
Adjoining Private Roadway Outlot 1,and the Lots Adjoining Private Roadway Outlot J,upon the separation
of any part of the Lots in Phase 1, the Lots Adjoining Private Roadway Outlot 1, and the Lots Adjoining
Private Roadway Outlot J,from the ownership of the Private Roadway Easement.
(b) Reservation of Roadway Easement. For the benefit of the Lots Adjoining Private
Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J, Declarant hereby reserves over that
portion of the Private Roadways, designed and constructed for road purposes a non-exclusive easement
("Subsequent Outlot I and J Property Easement") for ingress and egress by foot or vehicle to and from the
Lots Adjoining Private Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J,for the purposes
of residential use,construction,reconstruction,sale and maintenance of residences,and for the installation
maintenance and replacement of utilities.Such easement does not include use for commercial purposes other
than the construction, reconstruction, maintenance, sale or rental of residential lots and residences. The
Subsequent Outlot I and J Property Easement is hereby reserved for the benefit of the Lots Adjoining Private
Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J upon the separation of any part of the
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Lots Adjoining Private Roadway Outlot I and the Lots Adjoining Private Roadway Outlot J from the
ownership of the Private Roadways.
2. Maintenance of Easement. Except as provided in Section 3 of this Agreement,Declarant
shall maintain the Private Roadways in good condition and repair. Maintenance of the Private Roadways
shall include maintaining the surface in a level, smooth, and evenly covered condition, and repairing and
replacing any necessary directional signs, markers, lines,and curbs serving the Private Roadways. In the
event the Declarant fails to maintain the Private Roadways in accordance with this Agreement, the
Association shall have the right to maintain,repair and replace the Private Roadways. In addition,Declarant
shall maintain any landscaping that has been installed within the overall Development until such time as said
landscaping has been deeded to the Association after which the Association shall maintain said landscaping
in accordance with the Restrictions. Such Common Areas shall include, but are not limited to, Outlots C
through H, inclusive,as shown on the Final Map of Tract No. 5358.
3. Extraordinary Repairs to Private Roadways. If extraordinary repairs to the Private Roadways
are made necessary by the actions or omissions of any owner of any portion of the Lots Adjoining Private
Roadway Outlot I, the Lots Adjoining Private Roadway Outlot J or the invitees of such owner, Declarant
shall make the repairs at its own expense. If extraordinary repairs to the Private Roadways are made
necessary by any act of the Association, its members,or the invitees of the Association or its members,the
Association shall make such repairs and may seek reimbursement from the responsible members as provided
in the Restrictions, or reimburse Declarant for the costs of such repair, at Declarant's discretion.
"Extraordinary repairs" include, without limitation, repairs made necessary by the use of the Private
Roadways for heavy vehicles,construction machinery,or any other use other than normal passenger vehicles
and light truck traffic.
4. Insurance and Taxes. Declarant shall bear the risks of loss for the Private Roadways and any
improvements thereon,until conveyance of the Private Roadways to the Association. Declarant,shall at all
times until conveyance of the Private Roadways to the Association maintain in full force and effect a policy
or policies of property insurance containing the usual terms and restrictions on coverage which protects the
Declarant against loss or damage to the improvements from other loss or other casualty. The policy shall
name the Association as an additional insured as the Association's interest may appear. Declarant shall
maintain or cause its contractors and subcontractors to maintain, at all times until conveyance to the
Association in full force and effect a policy or policies of Workers Compensation insurance to protect the
Declarant or its contractors or subcontractors from claims and damages from Worker's Compensation claims
arising from the completion of the Improvements. Upon conveyance of the Private Roadways to the
Association Declarant shall have no further obligation to obtain the insurance required by this Section.
5. Obligation for Costs of Maintenance. Declarant shall bill and the Association,on behalf of
the Lot owners subject to the payment of Regular Assessments,shall pay a proportionate share of the costs
associated with the use of the Private Roadways. The proportionate share to be contributed by the
Association shall be determined by multiplying a fraction (the numerator of which is the number of
residential Lots subject to the payment of Regular Assessments and the denominator of 144) by the total
amount for all costs related to the Private Roadways incurred by Declarant.
6. Conveyance of Private Roadways.
(a) Outlot I Private Roadways. Declarant shall convey fee title to the Outlot I Private
Roadways to the Association when all the Lots Adjoining Private Roadway Outlot I are annexed to the
Restrictions and upon the commencement of Association regular assessments against all of the Lots
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Adjoining Private Roadway Outlot I free of all encumbrances and liens, with the exception of current real
property taxes (which shall be prorated as of the date of such conveyance) and any easements, conditions
and reservations then of record,including those set forth in the Declaration. Because the final lift has already
been placed on the Private Roadways and the conveyance date is open ended,the Association shall have no
obligation to accept conveyance of the Private Roadways unless and until the Owner of said Private
Roadways shall either(a)perform such work as is necessary to place the Private Roadways being conveyed
in substantially the same condition as it existed on the date on which the final lift of asphalt was placed on
said Private Roadways or(b)pay the Association,as a contribution to the reserve account of the Association,
such amount as is reasonably determined by the Association to be sufficient reserve for future repairs to said
Private Roadways,based on the number of years that have elapsed from the date the final lift of asphalt was
placed on said Private Roadways.
(b) Outlot J Private Roadways. Declarant shall convey fee title to the Outlot J Private
Roadways to the Association when all the Lots Adjoining Private Roadway Outlot J are annexed to the
Restrictions and upon the commencement of Association regular assessments against all of the Lots
Adjoining Private Roadway Outlot J, free of all encumbrances and liens,with the exception of current real
property taxes(which shall be prorated as of the date of such conveyance) and any easements, conditions
and reservations then of record,including those set forth in the Declaration. Because the final lift has already
been placed on the Private Roadways and the conveyance date is open ended,the Association shall have no
obligation to accept conveyance of the Private Roadways unless and until the Owner of said Private
Roadways shall either(a)perform such work as is necessary to place the Private Roadways being conveyed
in substantially the same condition as it existed on the date on which the final lift of asphalt was placed on
said Private Roadways or(b)pay the Association,as a contribution to the reserve account of the Association,
such amount as is reasonably determined by the Association to be sufficient reserve for future repairs to said
Private Roadways,based on the number of years that have elapsed from the date the final lift of asphalt was
placed on said Private Roadways.
7. Runs with the Land. This Agreement shall run with the land benefitted and burdened hereby
and shall be binding on all parties having or acquiring any right,title or interest in the Association and the
Private Roadways property,or any part thereof,and their heirs,successors and assigns. For purposes of this
Agreement, with respect to the Private Roadway Easement and the Subsequent Outlot I and J Property
Easement,the Lots in Phase 1,the Lots Adjoining Private Roadway Outlot I,and the Lots Adjoining Private
Roadway Outlot J, are the Dominant Tenement and the Private Roadways are the Servient Tenement.
8. Termination. This Agreement shall terminate upon the conveyance of all of the Private
Roadways to the Association and upon annexation of Outlots C through J, inclusive, to the Restrictions.
9. Payment, Late Charges, and Interest. The Association shall, on behalf of all the owners
subject to the payment of Regular Assessments, pay all costs as provided in Section 3 and 5, above, to
Declarant upon demand, which may be billed monthly, quarterly or yearly. If any payment is not made
within thirty(30)days of its due date,such owner shall pay a late charge of five percent(5%)of the amount
of the payment plus interest at a rate of ten percent(10%)per annum from the due date until paid.
10. Enforcement. The failure of any party to comply with any provisions of this Agreement shall
give rise to a cause of action in any aggrieved owner, Declarant and the Association for the recovery of
damages or for injunctive relief,or both. Before instituting any judicial action or other proceeding arising
out of any party's failure or alleged failure to comply with any of the provisions of this Agreement,the entity
or person who desires to initiate such action shall first make a good-faith attempt to mediate the dispute.
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11. Notices. Any notices to be given hereunder by either party to the other party shall be in
writing and shall be delivered either personally or by United States mail,registered or certified,postage paid
with return receipt requested. Notices shall be delivered or addressed to the parties,at the party's property
address or at the addresses of the agent for service on file with the California Secretary of State. Notices not
personally served shall be deemed delivered three(3) days after mailing.
12. Right of Amendment if Requested by City. Anything in this Agreement to the contrary
notwithstanding,Declarant and the Association reserve the right to amend all or any part of this Agreement
to such an extent and with such language as may be requested by the City to reflect a modification of the
development permits which requires a conforming amendment to this Agreement. The Association shall
Record any amendment requested by the City within sixty (60) days of receipt of a request from the City.
Any such amendment shall be effectuated by the Recordation of a Certificate of Amendment duly signed by
or on behalf of the authorized agents, or authorized officers of Declarant,or the Association as applicable,
with their signatures acknowledged, specifying the City requested the amendment and setting forth the
amendatory language requested by the City. Recordation of such a Certificate shall be deemed conclusive
proof of the City's request for such an amendment, and such Certificate, when Recorded, shall be binding
upon all of the real property comprising the Development and all persons having an interest therein.
13. Rights of the City of Fresno.
(a) Conflict with Any Other Section. In the event of any conflict between this Section
13 and any other Section of this Agreement, Section 13 shall prevail.
(b) Right of Immediate Access. The City shall be granted the right of immediate access
to all portions of the Common Areas for the purpose of preserving the public health, safety, and welfare.
(c) Maintenance of Facilities. The Association shall have the duty to maintain and
repair all on-site sewer,water and storm drainage facilities within the Private Roadways, unless the city or
flood control district have determined that a particular facility should be public to provide necessary system
completion or otherwise protect public health,safety, and welfare.
(d) Utility Charges. The Association shall have the duty to pay all utility and waste
collection charges which are not separately metered and billed,including but not limited to charges for sewer,
water,gas, solid waste, sanitation and electric service.
(e) Approval by Building Official. No property Owner shall alter,modify,reconstruct,
or do any other thing to any party wall or to any plumbing,electrical or mechanical fixture located along such
wall which will impair the integrity of the wall as a fire separation without the review and approval of the
building official of the City.
(f) Maintenance of Common Area. Landscaping shall be provided and maintained by
the Association in those Common Areas adjacent to public streets and highways. The Association shall
provide and maintain the landscaping in such areas in a manner compatible with the requirements of the City
Code,and shall not decrease the amount of Assessments charged against Members of the Association if such
decrease will adversely affect the ability of the Association to perform this maintenance. Such Common
Areas shall include, but are not limited to,Outlots C through H, inclusive, as shown on the Final Map of
Tract No. 5358.
(g) Approval by City for Amendments. Any amendment by the Association to the above
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provisions or any other provision specifying any right of the City shall require the prior written consent of
the City. (Added Ord. 85-121, § 16,eff. 9-13-85).
14. Miscellaneous.
(a) Waiver. The waiver by either party of the breach by the other party of any provision
of this Agreement does not waive any subsequent breach of the same or any other provision of this
Agreement.
(b) Amendment. No modification of this Agreement shall be made or effective unless
and until such modification is executed by the Association,and Declarant,or their successors or assigns,and
recorded in the Official Records of Fresno County, California.
(c) Partial Invalidity. Invalidation of any provision contained in this Agreement by
judgment,court order,or otherwise,shall in no way affect any other provision contained herein,which shall
remain in full force and effect.
(d) Entire Agreement. This Agreement constitutes the sole agreement between the
parties and supersedes any and all other agreements,whether oral or written,with respect to the obligations
identified herein. The parties acknowledge that no representations,inducements,promises,or agreements,
whether oral or otherwise,have been made by any party or anyone acting on behalf of any party which is not
embodied herein; and that no other agreement, statement, or promise not contained in this Agreement
regarding the provisions of this Agreement shall be valid or binding.
(e) Attorneys'Fees. If any action or proceeding is instituted by any person to enforce
or interpret the provisions hereof, the prevailing party in such action or proceeding shall be entitled to
recover from the other party or other parties as costs and expenses incurred in connection therewith,
including, without limitation, reasonable attorneys'fees and the costs and expenses of litigation.
(f) No Third Party Liability. Declarant is not liable for or responsible for personal
injuries and property damage caused by the criminal,intentional or negligent acts of others,whether or not
such acts were foreseeable, for any use of any of the easements described in this Agreement.
(g) Recitals/Exhibits. The recitals and exhibits to this Agreement are hereby
incorporated into and made a part of this Agreement by this reference.
(h) Effective Date. This Agreement has been executed to be effective as of the date
it is recorded in the Official Records of Fresno County,California.
{The remainder of this page intentionally left blank.)
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DATED: '2013, DECLARANT
LENNAR FRESNO,INC.,
a California rp ration
By A�y
[type or print name and title]
STATE OF CALIFORNIA }
} ss.
COUNTY OF000e - f� }
0 ',/?,, 2013, before me, Notary Public, personally appeared
/�—e /t 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 instnunent.
I certify under PENALTY OF PERJURY Linder the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS m id � I.
�- &��— �CHR�ISTI?NfUC�02LLINSI,;;
No aryPublic OMM. 63
NOTARY PUKX•CAUFORMA
FRESNO COUNTY
Comm.Exp.NOV.7,2015
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ASSOCIATION
ELDERBERRY ON THE BLUFF HOMEOWNERS
ASSOCIATION,
a California nonprofit mutual benefit corporation
By
[type or print name]
By
[type or print name]
STATE OF CALIFORNIA }
} ss.
COUNTY OF .€F�rtJIQ }
On (,�t 20.13, before me[' Gzcsil u [1 , Notary Public, personally appeared
/e-ee!!�x_ and 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 h nd I.
t;.—�..�CHRISTINE COLLINS
Nora ry Public COMM.*1959663 E
NOTARY PUBLIC•CAUIFORNIA n
FRESNO COUNTY
Comm.Exp.NOV.7,2015
Le
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EXHIBIT "A"
LEGAL DESCRIPTION OF PHASE 1
All of the real property located in the City of Fresno, County of Fresno, State of California, which
is more particularly described as follows:
Lots 121 through 132,inclusive,as shown on the Subdivision Map of"Tract No. 5358",
filed for Record on 4 / ,2013, in Volume $3 of Plats, at Page It; rt,,, .79
of the Official Records of resno County.
EXHIBIT "B"
LEGAL DESCRIPTION OF THE SUBSEQUENT PHASE PROPERTY
All of the real property located in the City of Fresno, County of Fresno, State of California, which
is more particularly described as follows:
Lots 1 through 120,inclusive,and 133 through 230,inclusive,and Outlots C,D,E,F,G,
H,I and J, as shown on the Subdivision Map of"Tract No. 5358", filed for Record on
2013, in Volume _ of Plats, at Page.Z, of the Official
Records of Fresno County. �y
EXHIBIT "C"
LEGAL DESCRIPTION OF THE LOTS ADJOINING PRIVATE ROADWAY I
All of the real property located in the City of Fresno, County of Fresno, State of California, which
is more particularly described as follows:
Lots 187 through 230,inclusive,as shown on the Subdivision Map of"Tract No. 5358",
filed for Record on 2013, in Volume 8,S of Plats, at Page.2S,7 .2y
of the Official Records o Fresno County.
EXHIBIT "D"
LEGAL DESCRIPTION OF THE LOTS ADJOINING PRIVATE ROADWAY J
All of the real property located in the City ofFresno,County of Fresno,State of California,which
is more particularly described as follows:
Lots 87 through 120, inclusive, and 133 through 186, inclusive, as shown on the
Subdivision Map of"Tract No. 5358", filed for Record on 12013,in
Volume ' of Plats,at Page ZS , of the Official Records of Fresno County.
Aft4 s7
EXHIBIT "E"
LEGAL DESCRIPTION OF OUTLOT I PRIVATE ROADWAYS
All of the real property located in the City of Fresno, County of Fresno, State of California, which
is more particularly described as follows:
Outlot I, as shown on the Subdivision Map of"Tract No. 5358", filed for Record on
17U/If /5- , 2013, in Volume of Plats, at Page 2�, of the Official
Records of Fresno County. fl r4-2'
The above real property will consist of the following:
Item Sq. Ft. or UnitCost Replacement Remaining Y e a r 1 y
Number Cost Life Reserve
AVEDSURFACES
Asphalt 82,279 0.10 8,228.00
NTRIES
Motorized Gates 2 450.00 900.00
Entry Phone Kiosk 1 5,000.00 5,000.00 15 333.00
Metal Gates/Fence(repair) 78 2.00 156.00
Metal Gates/Fence(paint) 860 .30 258.00
Entry Signs 1 750.00 750.00 15 50.00
Entry Lighting 10 9.00 90.00
IGNAGE 250.00
WALLS AND FENCES
Low Entry Wall (Repair) 20 .20 4.00
Low Entry Wall (Surface Mtne) 120 .16 19.00
Total Reserve 10,238.20
Funds
EXHIBIT "F"
LEGAL DESCRIPTION OF OUTLOT J PRIVATE ROADWAYS
All of the real property located in the City of Fresno, County of Fresno, State of
California, which is more particularly described as follows:
Outlot J, as shown on the Subdivision Map of"Tract No. 5358",filed for
Record on ,Su/a /S , 2013, in Volume93 of Plats,at Page .2Y,Aiy
of the Official Records of Fresno County.
The above real property will consist of the following:
Item Sq. Ft. or UnitCost Replacement Remaining Y e a r I y
Number Cost Life Reserve
PAVED SURFACES
Asphalt 161,610 0.10 16,161.00
NTRIES
Motorized Gates 2 450.00 900.00
Entry Phone Kiosk 1 5,000.00 5,000.00 15 333.00
Metal Gates/Fence (repair) 78 2.00 156.00
Metal Gates/Fence (paint) 860 .30 258.00
Entry Signs 1 750.00 750.00 15 50.00
Entry Lighting 10 9.00 90.00
IGNAGE 250.00
WALLS AND FENCES
Low Entry Wall (Repair) 20 .20 4.00
Low Entry Wall (Surface Mtnc) 120 .16 19.20
Total Reserve 18,221.20
Funds