HomeMy WebLinkAboutT-5412 - Agreement/Covenant - 7/13/2006 Recording Requested by:
City Clerk
City of Fresno
W 2600 Fresno Street
Fresno,Ca 93721-3603
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CL_ 07/13/2006,20068145988
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O No Fee-Govt.Code 6103
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CITY OF FRESNO
Planning and Development Department
STATEMENT OF COVENANTS AFFECTING LAND
DEVELOPMENT FOR LANDSCAPING AND MAINTAINING AN
OFF-SITE OPEN SPACE FACILITY FOR TRACT NO.5412,
PHASE 2 OF VESTING TENTATIVE MAP NO.4598
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
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.5412,
Phase 2 of 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 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 2.30 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 M ap of Tract No.5412,
Phase 2 of Vesting Tentative Map No.4598 pursuant to said Tentative Map,hereinafter referred
to as the"Final Map,"which provides 0.53 acres of open space area and previously recorded Final
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 3
Map Tract No.4598,Phase 1 of Vesting Tentative Map No.4598,hereinafter referred to as"Phase
1,"provided 0.66 acres;and
WHEREAS,the Final Map is required to provide 1.11 acres of the remaining Total Open
Space Area;and
WHEREAS,the Covenantor has elected to satisfy the balance(1.11 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 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 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.
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 4
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 improvementIlandscaping 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 W dwelling in Tract No.5412,
Phase 2 of Vesting Tentative Map No.4598.
6. Notwithstanding any provision ofthis Staterneritto the contrary,the Coveriantor 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 Fifty-Eight Thousand dollars
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 5
($58,000.00),to insure continued maintenance of the Open Space Facility.Phase 1 has previously
provided as a condition of approval the sum of Twenty-Five Thousand dollars($25,000)of the
maintenance security required for the Open Space Facility and the remaining Thirty-Three
Thousand dollars($33,000.00)shall deposited with the City,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 used 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$58,000.00 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 attomey's fees and costs.
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 orto reduce the Subject Property's gross acreage for the purpose of determining
the Subject Property's open space area obligation.
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 6
11. This Statement shall in noway be construed as a grant by the City of Fresno of any
rightsto the Covenantor to trespass upon land rightfully in the possession of,or owned byanother,
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 adjacentthereto
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
violate the terms hereof.
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 7
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. 5412
Page 8
DATED: D o 0
CITY OF FRESNO, COVENANTOR
a Municipal Corporation LAFFERTY GDCI FRESNO L.P.
A Delaware Limited Partnership
By: LAFFERTY/LANDCASTLE,LLC
a California Limited Liability Company
its General Partner.
By:
Nic P ovino, Director
Plann U
and Development Department fi_ S. arty,Managing Member
APPROVED AS TO FORM:
JAMES C.SANCHEZ
WMPOWCity Aft m y
(Attach Notary Acknowledgment)
11 A Al 2b:�
Deputy
Covenant-Open Space Area 4-20-04
Revised.,05-31-2000
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
�rcrcrcrcc'.cr.r,�r�c ..>^c<'<�. .:r��,c_•_. � .. < ., .. c ,, <`.�.... ... t
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State of California
11 ss.
County of ``((��.ov,'!ra l//�'ns`-A
On81'aOnla beforeme, r
Hale Nane all",a of Officer a(..'Jane Doe.Nol P blic'l
h personally appeared S.
Namars)I S ner(s)
C-1-pers Wally known to me
fi L proved to me on the basis of satisfactory
evidence
to be the person(.&) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/sbelthey executed
CAROL BROWN the same in his/herAhegr authorized
1' Commission N 157a491 capacity(ies), and that by his/haatheir
Notary Public-Clifornia signature(s)on the instrument the person(.&),or '
Contra CostaCounry - the entity upon behalf of which the person(s)
Q (3
My Comm.Expkes Apr 27,21)09 acted,executed the instrument.
S
fiWITNESS my hand aandd official seal.
fi 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 C
Title or Type of Document: ��aTt oC o
Document Date: Number of Pages:
Signer(s)Other Than Named Above:
Capacity(les)Claimed by Signer
Signer's Name:
❑ Individual Top of frl,mb here
S ❑Corporate Officer—Title(s):
❑ Partner—❑Limited C General
❑Attorney-in-Fact
❑Trustee
❑Guardian or Conservator
❑Other:
h
Signer Is Representing:
r r =tip < _ -
®1999 N,1 Notary Assoc'lalion•9350 N Solo Ave..PO.9oz 2402•ch—aft..CA 91313 2402•wrm.1,111-111411,ae P,p No5907 ReoNer:Call Toll F.1 11Oo-8766827
Tract No.5412/UGM
P.W.File No. 10778
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.5412,Phase 2 of Vesting Tentative Map
No.4598.
DATED: ,. i i 20_,_
OHIO SAVINGS BANK,a federal savings bank
TRUSTEE/BENEFICIARY
By: Yii1
rd�N,iH)-
By: 4A
II�I�CfI•¢L1 �
(Attach Notary Acknowl dgment)
c7V V. P,
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
County of San Bernardino SS.
On May 11,2006,before me,Thanhliem Brenda Le,Notary Public,
personally appeared Victor P.Bessette,
N personally known tome
❑ proved to me on the basis of satisfactory
evidence
to be the person whose name is subscribed to
THANHLIEM BRENDA LE the within instrument and acknowledged to me
Commission 0 1396189 that he executed the same in his authorized
ub
NotorY Plic—Colltornto capacity,and that by his signature on the
'e Son Bernor�din�o4ninstrument the person,or the entity upon behalf
rvn
WCgr . of which the person acted,executed the
instrument.
WITNE my hand an-d offici I seal.
Place Notary Seal Above
Signature of Notary ublic
OP
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.5412,Phase 2 of Vesting Tentative Map No.4598
Date: 5111106 Number of Pages: 12
Signer Other Than Named Above:
Capacity Claimed by Signer
Signer's Name: Victor P.Bessette
❑ Individual
E Corporate Officer--Title: Vice President Top of thumb here
El Partner--❑ Limited El General
El Attorney in Fact
❑ Trustee
F1 Guardian or Conservator
❑ Other:
Signer is Representing: Ohio Savings Bank
Signer's Name:
❑ Individual
❑ Corporate Officer--Title: Top of thumb here
❑ Partner--[] Limited ❑ General
❑Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other
Signer Is Representing:
ACKNOWLEDGMENTS
STATE OF COLORADO )
)ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 12th day of May,
2006,by Michael S.Attias,Senior Vice President of Ohio Savings Bank,a federal savings bank.
Witness my hand and official seal.
My commission expires: 2"e/I-1/z1-9-
�uUUHgp�
O �OTggy Gly� �
_ Notary Public
U80 Q
y,SS�OIV EXPIPES�O
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On June 21,2006,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
Byyt cI222r�
Deputy
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 ata 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
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 0°06'48"W,a distance of 1,336.17 feet to the Point of Beginning.
EXHIBIT B
LEGAL DESCRIPTION FOR PARCEL 2
Sheet 1 of 2
That portion of the North Half of the Southwest Quarter of the Southeast Quarter of Section 10,
Township 14 South, Range 21 East, Mount Diablo Base and Meridian,according to the Official
United States Township Plat Map thereof,is bounded and described as follows:
The POINT OF COMMENCEMENT at the Northwest corner of the Southwest Quarter of the
Southeast Quarter of said Section 10,thence North 89°49'18" East,along the North line of the
Northwest Quarter of the Southwest Quarter of the Southeast Quarter of said Section 10,a distance
of 393.51 feet, thence South 00°11'03" East, a distance of 42.00 feet to the TRUE POINT OF
BEGINNING,thence South 00°11'03"East,a distance of 66.22 feet,thence North 89°48'57"East,
a distance of 724.04 feet,thence North 00°11'03"West,a distance on 66.14 feet,thence South
89°48'18"West,a distance of 724.04 feet to the TRUE POINT OF BEGINNING.
Area contains 47,916 Square Feet(1.11 Acres),more or less.
EXHIBIT '►B'►
HEEOF 2
EAST 14A MIL TQN A VTENUE I
7'
KB9-49*18'E 39331' S 89'49'18" W 724.04'ON OF COMMENCEMENT N 89'48'57'E 724.04' - aV
NORTHWEST CORNER OF THE SOUTHWEST
QUARTER OF THE SOUTHEAST QUARTER OF NORTHEAST CORNER OF THE SOUTHWEST IA
SECTION 10-14/21 QUARTER OF THE SOUTHEAST QUARTER OF
C9 fN _ SECTION 10-14/21
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0 � � S 89'48'57'N 1321.06'
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SECTION 10-14/21 SECTION IO-14 21 �
1' - - S 8. . '
36'W . . — _ _ 1321.38— _ _ — . . /_
EAST CAL/FORNIA A VENUE (AUtgAACWD
® INDICATES AREA TO BE DEEDED
FOR LANDSCAPE PURPOSES-
AREA To BE 17BEDE17:47.916 S.F., 1.10 ACRES
BA515 OF 5EARIN65:
THE WEST LINE OF THE SOUTHEAST QUARTER OF SECTION 10,
T.14 S.K21 E.M.O.EL h M.WAS TAKEN TO BE S 0006'00'E.
PER NAP OF SUNNYSDE GARDENS N0. 3, TRACT NO.1784, Q
RECORDED N VOLUME 70 OF PLATS AT PACE 38,FRESNO COUNTY
RECORDS ,
RL'G0p47 OWNER! LINE TABLE:
LAFFERTY HOMES LINE BEARING LENGTH
3180 CROW CANYON PLACE L1 5001103'E 4
SUITE 255 L2 I S00-11'03"E 86.22'
SAN RAMON, CA 94583 L3 I N 11'03'W I14' I LANA
A.P.N.: Q
313-040-31 Q``��Y C --7co REVISION S
FIONO 9V
INGi;➢..,S-]BRAUN E No.6619
&ASSOCIATES i+ Exp.12-37'-2006
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PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST w-Rri --IMM
QUARTER OF SECTION 10-14/21,N.D.B.do k TO BE DAW
RE = 1�J-A-
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