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HomeMy WebLinkAboutT-5462 - Agreement/Covenant - 9/23/2009 � 1 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 09/16/2009,20090127531 CITY OF FRESNO O Planning and Development Department U.Z Q Project ID: Tentative Tract Map No. 5462 0 W w Q W J ICL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS FOR THE FINAL MAP OF TRACT NO. 5462 STATEMENT OF COVENANTS Landscape Maintenance Tentative Tract No. 5462 Page 2 RECITALS WHEREAS, Spradling Construction, Inc., a California Corporation, hereinafter referred to as the "Covenanter," is the owner of 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: Lots 1 through 10 of Tract No. 5462 according to the map thereof recorded on 5,•�� . /(o , 2009 in Volume of Plats at Page(s) 3:9f 3y, Fresno County Records; and WHEREAS, the Covenanter 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, Resolution No. 12735 of the Fresno City Planning Commission conditionally approved the Tentative Map of Tract No. 5462, hereinafter referred to as the "Tentative Map;" and WHEREAS, Condition No. 11 of the Conditions of Approval dated October 3, 2007, for the Tentative Map, requires that a homeowners association be formed for the purpose of providing landscape service throughout the Subject Property; and WHEREAS, Condition No. 11(a) was added to the Conditions of Approval, in Resolution No. 12735, to provide the Covenanter with an alternative to the creation of a homeowners association; and WHEREAS, Condition No. 11(a) requires that an entity be created and be responsible for assuring that the landscape and irrigation systems installed within the front, side and rear yard areas of the subject property be maintained in accordance with the landscape and irrigation plans approved by the Planning and Development Department; and STATEMENT OF COVENANTS Landscape Maintenance Tentative Tract No. 5462 Page 3 WHEREAS, Condition No. 11(a) requires that the solid waste and recycle containers be adequately placed and removed (and properly stored) from the public street as required by applicable city ordinances; and WHEREAS, the Covenanter hereby agrees to establish a long term maintenance agreement jointly with all owners of the Subject Property. Said maintenance as described herein may be performed by a qualified maintenance entity and/or property management and/or lot owners; and COVENANTS, CONDITIONS AND RESTRICTIONS NOW THEREFORE, it is agreed in consideration of the foregoing and the approval of the final map for the Subject Property by the City of Fresno, the Covenanter hereby covenants, promises and agrees with the City of Fresno for the benefit of City that: 1. The front, rear and side yard landscape areas of Lots within the Subject Property will be designed and installed according to improvement plans approved by the Director of the Planning and Development Department. 2. The owner, lessee and/or persons in possession and/or control of any lots within the Subject Property shall maintain the front, rear and side yard landscaping of said lots pursuant to the requirements set forth in the Fresno Municipal Code. 3. The owner, lessee or person in possession and/or control of any lots within the Subject Property shall be responsible for the placement along the public street and removal (and proper storage) of solid waste and recycle containers, assigned to his/her particular lot, as required by applicable city ordinances. 4. Breach; Default; Remedies. 4.1. If the City determines that the owner, lessee or persons in possession or control of any lots within the Subject Property has failed to meet any of his, her, their, its obligations under this Covenant, the City may: STATEMENT OF COVENANTS Landscape Maintenance Tentative Tract No. 5462 Page 4 a. Declare the landscape improvements a public nuisance and take action under the City of Fresno Public Nuisance Abatement Ordinance. b. Take action to construct, maintain, and/or repair the landscaping within the front, rear and side yards of any Lot in violation of this Covenant as determined by the City of Fresno. Any costs the City incurs in constructing, maintaining, and/or repairing the landscape easement will be the responsibility of the owner of the lot in violation of this Covenant. If the owner fails to pay the City's costs within 15 days of written notice, City may either place a lien on the lot in violation of the Covenant or seek cost recovery as a public nuisance under the Cost and Penalty Recovery Ordinance. C. Pursue any available, legal, administrative proceeding available at law or in equity to enforce the terms of this Covenant. 4.2. Remedies Cumulative. The exercise by the City of any remedy is not an election of remedies and is not a waiver of any other remedies. 4.3. Waiver. The City's failure to insist on strict performance of any provision of this Covenant or failure to exercise any remedy available to the City is not a waiver of the performance or remedy. The City's waiver of any provision of this Covenant, or waiver of a default, or waiver of any remedy is not effective unless it is in writing and signed by the Director of Planning and Development. The City's waiver of a particular provision or default does not apply to any other provision or default. 4. The Covenanter shall provide to every prospective purchaser of each lot of the Subject Property, a copy of this Covenant. STATEMENT OF COVENANTS Landscape Maintenance Tentative Tract No. 5462 Page 5 5. It is the intention hereof that this document shall constitute a covenant in favor of the City of Fresno and shall run with the land and be binding upon the undersigned, its grantees, heirs, and successors and assigns. 6. At the time of any conveyance or transfer of ownership, possession or control of any lot in the Subject Property, the party conveying or transferring the ownership, possession or control of the property shall provide the new owner or transferee with a copy of this Covenant. 7. The foregoing conditions shall remain in full force and effect until such time as the Director of the Planning and Development Department issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 8. In the event that litigation is instituted to enforce or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 9. 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 enforceability of any one provision thereof. 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 Landscape Maintenance Tentative Tract No. 5462 Page 6 DATED: L'Cfa CITY OF FRESNO, COVENANTOR a Municipal Corporation Spradling Construction, Inc„ a California Corporation By:--�� By: c_ Keith Bergthold, Interim D ector Sherman Spradling, Presid nt Planning and Development Department APPROVED AS TO FORM: JAMES C. SANCHEZ (Attach Notary Acknowledgments for City Attorney Covenantor) By: John W. o uty City Attorney i, Date: CLERK'S CERTIFICATION State of California ) County of Fresno ) On August 20, 2009, before me, Jennifer Morelos, Deputy City Clerk, City of Fresno, personally appeared, Keith Berqthold, Interim Director, who 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) acted, executed the instrument. l certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. REBECCA E. KLISCH, CMC City Clerk, City of Fresno y OF FRF Sy By Deputy ` o 9 aq �ti. 4 TEa 0Cj. State of California ) County of Fresno ) On 1�*. +g:�-66 9 before me, Kelly G. Swertfa er Notary Public (here insert name and title of the officer), personally appeared a E/2-�� who 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 my,hand and official seal. Signature (Seal) r"AKELLY G. SWERTr7ar ® ER COMM. #1658750 i— NOTARY PUBLIC-CALIFORNIA FRESNO COUNTY My Comm.Expires May 14,2010 (notary)(12-07) SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 15, 2008, in the office of the Fresno County Recorder as Document No. 2008-0023684 of which the Deed of Trust in, by and between: Sherman Spradling, a married man as his sole and separate property, as Trustor, Fidelity National Title Company, as Trustee, and Butte Community 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 the Maintenance of Certain Improvements for the Final Map of Tract No. 5462. DATED: J�P • �U( BENEFICIARY Butte Community Bank J 2 C rotfar SFV 1P &A ieVA&L ng O-�icef' (Beneficiary to print/type Name and Title; and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF—+►'�?66' — ) On ���� �. 1r before me, 11Z�_ �i DATE INSERT NAME,TITLE OF OFFICER—E.G..,"JANE DOE,NOTARY PUBLIC personally appeared, who proved to me on the basis of satisfactory evidence to be the personK whose namepry �s/Ve subscribed to the within instrument and acknowledged to me that e/swfLeyexecuted 11;e same in hisfheoiei'r authorized capacity(i2g), and that by his/h�r!t�signatur�on the instrument the person or the entity upon behalf of which the personacted, 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 my hand and official seal. JERI L. CERRAl U � F JI0 COMM. #1662931 +a NOTARY PUBLIC-CALIFORNIA n+ BUTTE COUNTY 0 Q. . COMM.EXPIRES MAY 4,2010 1 7� (SEAL) NOTARY PUBLICS ATURE OPTIONAL INFORMATION THIS OPTIONAL INFORMATION SECTION IS NOT REQUIRED BY LAW BUT MAY BE BENEFICIAL TO PERSONS RELYING ON THIS NOTARIZED DOCUMENT. - TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT NUMBER OF PAGES SIGNERS(S)OTHER THAN NAMED ABOVE SIGNER'S NAME SIGNER'S NAME RIGHT THUMBPRINT RIGHT THUMBPRINT To order supplies,please contact McGlone Insurance Services,Inc.at(916)484 0804.