HomeMy WebLinkAboutT-5412 - Agreement/Covenant - 4/7/2008 When Recorded Mail To: II
IIII III III I III II IIII I VIII I it II III)I IIII I III II III
FRESNO County Recorder
Robert C. Werner
City Clerk DDC— 2008-0047995
City of Fresno Cheek Number 11120
2600 Fresno Street Wednesday, APR 02, 2008 14:30:02
Fresno, California 93721-3603 Ttl Pd $65.06 Nbr-0002736847
EMF/R5/1-19
CITY OF FRESNO
Planning and Development Department
RELEASE OF 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
i
Release of Covenant
Tract No. 5412
Maintenance of Off-site Open Space Facility
Page 2
WHEREAS,LAFFERTY GDCI FRESNO L.P.,a Delaware Limited Partnership,entered into
a covenant providing for landscaping and maintaining an off-site open space facility recorded on
July 13, 2006 as Document No. 20060145988 of Official Records of Fresno County, hereinafter
referred to as the "Covenant;" and
WHEREAS, said Covenant is attached as Exhibit A; and
WHEREAS, the property affected is more specifically described in said Exhibit; and
WHEREAS,the Director of the Planning and Development Department has determined that
pursuant to the annexation of Tract Nos. 4598, 5412, 5188 and 5413 to the City's Community
Facilities District No. 2 and the acceptance of the associated work by the Public Works
Department, the terms of the said Covenant have been satisfied and that the continued existence
and enforcement of said Covenant are no longer necessary.
NOW,THEREFORE,in accordance with the provisions of said Covenant,the City of Fresno
does hereby release the Subject Property from said Covenant and that it shall be of no further force
or effect.
DATED: D'S
CITY OF FRESNO
a Municipal Corporation
NICK P. YOVINO, Director
Planning and Develo ment Department
By:
Keith Bergthold, Assistant Director
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: `2J
Joh Fox, Deputy City Att rney
Date: '-/Z/ Zz v 0
CLERK'S CERTIFICATE
STATE OF CALIFORNIA )
COUNTY OF FRESNO ) ss.
CITY OF FRESNO )
On Axil 2. 2-00,F before me, 5kyrl� L• &dej+SC'h r, personally
appeared, Keith Bergthold, Planning and Development Department Assistant Director, personally
known to me(or proved 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 which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official city seal.
REBECCA E. KLISCH, CMC
City Clerk
DEPUTE!
K:\Maps\Final MapslRecorded\T-5412-Rec\Docs\T-5412 Release of Covenant maintenance of off-site open space facility.wpd
Recording Requested by:
FRESNO County Recorder
City Clerk Robert C, Werner
City of Fresno DOC— 2006-0145988
2600 Fresno Street
Fresno, Ca 93721-3603 Acct 5-First American Title Insuranea Company
Thursday, JUL 13, 2005 08:00:00
tt 1 Pd $0.60 Nbr-0002235153
RGR/R4/2-16
No Fee-Govt.Code 6103
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
6-x e 7-
, I
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 Map 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)
forthe Open Space Facility in accordance with improvement/landscaping plans prepared in aform
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.
S. The Open Space Facility shall be completed, inspected and accepted by the
Planning and Development Department prior to occupancy of the 44`" dwelling in Tract No.5412,
Phase 2 of Vesting Tentative Map No. 4598.
6. Notwithstanding any provision of this Statementto 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 Fifty-Eight Thousand dollars
u
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 attorney's fees and costs.
10. The Covenantor agrees to providethe 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 or to reduce the Subject Property's gross acreage for the purpose of determining
the Subject Property's open space area obligation.
/Cel
cj)
t
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 6
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 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.
J
i,
Statement of Covenants
Landscaping and Maintaining of an Open Space Area
Tract No. 5412
Page 8
DATED: Ob20
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:
Ack vino, Director By:Ri
Planni and Development Department rty, Managing Member
APPROVED AS TO FORM:
JAMES C. SANCHEZ
JaWim City Attorney
(Attach Notary Acknowledgment)
By )
Deputy
Covenant-Open Space Area 4-20-04
Revised:05-3f-2006
'i
I�
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
1
County of C.o n�.-a �os\2 ss.
On "v,r L9. QOC4 -before me,
Date Name and nue 01 OKI=le.g.,`Jane Doe,Notary QuD�)
personally appeared \)
Names) 1 ner(s)
O')sersonally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose nameW is/aie
subscribed to the within instrument and
=BROWN acknowledged to me that he/sheAbey executed
CorrunWlon 11574491 the same in his/her,4beir authorized
-� Notary Public-Cal ftmia capacity(ies), and that by his/hwAheir
• Contra Costa County r signature(s)on the instrument the person(s),or
My Comm.Expires Apr 27,2W9 the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my handandofficial seal.
Signature of Notary PuWrc
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: S�Pyv%j=n� Lift I,Q„-A hA M
Document Date: Number of Pages:
Signer(s)Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name:
❑ Individual Top of thtunb here
❑ Corporate Officer—Title(s):
❑ Partner—❑Limited ❑General
❑ Attorney-in-Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
O 1999 National Notary Association-9350 Do Soto Ave..P.O.Bar 2402•DhatsmM.CA 813134402•—.Natlona WOary.org Prod.No.5907 Reorder:Cas Toll-Free 1 AOP876-6827
i
�1
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: 5 -I I - , 20 06_
OHIO SAVINGS BANK, a federal savings bank
TRUSTEE/ BENEFICIARY
By: ,— `
By:
04(Attdch Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
ISS.
County of San Bernardino
On May 11, 2006, before me, Thanhliem Brenda Le, Notary Public,
personally appeared Victor P. Bessette,
® personally known to me
❑ proved to me on the basis of satisfactory
evidence
III hNA111111odd,101111k.11111 1111-1111 to be the person whose name is subscribed to
ittANHLIENI BRENDA LE the within instrument and acknowledged to me
Commission# 39B BB that he executed the same in his authorized
Notary Public— capacity, and that b his signature on the
Liar
Son Bernordino County Y 9
s�4,2p07 instrument the person, or the entity upon behalf
MY�n' of which the person acted, executed the
f instrument.
WITNES my hand d official seal
Place Notary Seal Above
Signature of ry Public
OPT L
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: 5/11/06 Number of Pages: 12
Signer Other Than Named Above:
Capacity Claimed by Signer
Signer's Name: Victor P.Bessette
❑ Individual
® Corporate Officer—Title: Vice President Top of thumb here
❑ Partner—❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ 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
(3Guardian or Conservator
❑ Other:
Signer Is Representing:
y
v ,
-� ail
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:
K. Iv6 N ry Public -
01 AR), %
N'ti PUBI-IG
co%M"SS ONS�-X9\gz
6
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
a
Deputy
1•
W
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 at a point on the North line of said North Half,a distance of 749.17 feet from the East
Quarter comer of said Section 10; thence S 89050'01" W, along said North line, a distance of
771.00 feet; thence S 0006'48" 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 89049'24" 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 00011'03" East,a distance of 66.22 feet,thence North 89048'57" East,
a distance of 724.04 feet , thence North 00011'03" West, a distance on 66.14 feet, thence South
89048'18" 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°
EA S T AWA MILTON AEVENUE
Z N 89'4918 E 39351S 88'49'18" W 724.04'
T OF COMMENCEMENT N 89-48'57" E 72404' N
NORTHWEST CORNER OF THE SOUTHWEST ,o
QUARTER OF THE SOUTHEAST QUARTER OF NORTHEAST CORNER OF THE SOUTHWEST
SECTION ID-14/21 QUARTER OF THE SOUTHEAST QUARTER OF
(t� SECTION 10-14/21
La
Lo
�W
�O .
In $ 3
QQ
v Q
0
Z � Z
Op S 89'48'57' W 1321.06• RR pp EE $�
SOUTHWEST CORNER OF THE SOUTHWEST soUTI�_ASLCQ,EN%8,FHEAST QIIAR�S OF N
V7 g
QUARTER OF THE SOUTHEAST QUARTER OF I�tK UOtF �InH
SECTION 10-14/21 SECTION 10-14/21 m
S 89'48'36' W 1321.38' i
EA S T CA L IF 0 RN/A A VENUE (ALCAMEND
® INDICATES AREA TO 8E DEEDED
FOR LANDSCAPE PURPOSES.
AREA TO E6 DMDIM: 47.916 S.F., 1.10 ACRES
DA515 OF 5EARINc55:
THE WEST UNE OF THE SOUTHEAST QUARTER OF SEC710N 10,
T.14 S.. R.21 E., N.DAL & til WAS TAKEN TO BE S 00'06'00' E. O
PER NAP OF SUNNYSDE GARDENS NO. J. TRACT NO. 1784, 0
RECORDED IN VOLUME 20 OF PLATS AT PAGE 36. FRESNO COUNTY r
RECORDS �
REGORD OWNER : UNE TABLE /I
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LAFFERTY HOMES
BEARING LENGTH
3180 CROW CANYON PLACE U 50011'03'E 4
SUITE 255 L2 SOMI'03'E 66.22'
SANRAMON. CA 94583 l3 DU'1TD3-W 66,14! LA
ArA�D
313-040-51 �F '� '`o R EE V I S I O N S
PREPARm BY.
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ASSOCI& S d. 12-331-21-2
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REF WEV an OPRal
F FRESNO FW In.
°t w° DEPARTMENT OF PUBLIC WORKS a
A.ar M
i-e v GRANT DEED DR.EIY: w>tn SHEET 9M
PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST a•e" of 3mr9
QUARTER OF SECTION 10-14/21, N.D.B. de k TO BE DAl6 :
DEEDED TO THE CITY OF FRESNO SCN.& 5"am 15—A—
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