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Home My WebLink AboutT-5549 - Agreement/Covenant - 12/4/2008 (3) WHEN RECORDED MAIL TO: City Clerk 1210412008120080166442 City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 CITY OF FRESNO ® Planning Department LL z 0 0 LJ co W •J STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE MAINTENANCE OF CERTAIN IMPROVEMENTS FOR THE FINAL MAP OF TRACT NO. 5549 RECITALS WHEREAS, Housing Authority of the City of Fresno, A Body Corporate and Politic, hereinafter referred to as the "Covenantor," 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 11 of Tract No. 5549 according to the map thereof recorded on 2003 in Volume 80 of Plats at Page(s) 99 t Q9 Fresno County Records; and WHEREAS, the 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 STATEMENT OF COVENANTS Front Yard Maintenance Tract No. 5549 Page 2 and that all such instruments of Subordination, if any, are attached hereto and made a part of this instrument; and WHEREAS, Resolution No. 12513 of the Fresno City Planning Commission conditionally approved the Tentative Map of Tract No. 5549, hereinafter referred to as the "Tentative Map;" and WHEREAS, a condition of approval of the Tentative Map calls for the ongoing maintenance of the front yards for Lots 1-11 of the Tentative Map; and WHEREAS, a condition of approval of the Tentative Map requires that the maintenance of such improvements shall be the responsibility of a homeowners association; and WHEREAS, the Planning Director has determined that creation of a homeowners association at this location is not in the best interest of the City or the Covenantor; and WHEREAS, the Planning Director has determined that the maintenance of such improvements should be the responsibility of the property owners of Lots 1-11 of the Tentative Map; and WHEREAS, maintenance of such improvements by private parties presents special issues for the City related to ensuring that such improvements are properly, safely and perpetually maintained and such maintenance does not present additional liabilities to the City. 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 Covenantor hereby covenants, promises and agrees with the City of Fresno for the benefit of City that: 1. The front yard landscape areas of Lots 1-11 of the Tentative Map will be designed and installed according to improvement plans approved by the Director of the Planning and Development Department. STATEMENT OF COVENANTS Front Yard Maintenance Tract No. 5549 Page 3 2. The owner or, if the property is leased, the lessee of Lots 1-11 of the Tentative Map shall maintain the Front yards of said lots in a manner acceptable to the Director of Planning and Development. 3. Breach; Default; Remedies. 3.1. If the City determines that the owner or lessee of Lots 1-11 of the Tentative Map has failed to meet any of his, her, their, its obligations under this Covenant, the City may, upon failure to remedy with a notice of cure letter within thirty (30) days: a. Declare the landscape easement a public nuisance and take action under the City of Fresno Public Nuisance Abatement Ordinance (FMC Chapter 9, Article 8). The Covenantor hereby waives its rights to object to the use of the Public Nuisance Abatement Ordinance for breach of this Covenant. b. Take action to construct, maintain, and/or repair the landscaping within the 'Front yards of Lots 1-11 of the Tentative Map. Any costs the City incurs in constructing, maintaining, and/or repairing the landscape easement will be the responsibility of the owner or lessee of Lots 1-11 of the Tentative Map 5549. If the owner or lessee of Lots 1-11 of the Tentative Map fails to pay the City's costs within 15 days of notice, City may either place a lien on the Subject Property or seek cost recovery as a public nuisance under the Cost and Penalty Recovery Ordinance (FMC Ch. 1, Art. 6). C. Pursue any available, legal, administrative proceeding available at law or in equity to enforce the terms of this Covenant. 3.2. Remedies Cumulative. The exercise by the City of any remedy is not an STATEMENT OF COVENANTS Front Yard Maintenance Tract No. 5549 Page 4 election of remedies and is not a waiver of any other remedies. 3.3. 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 Covenantor shall provide to every prospective purchaser of each lot of the Subject Property, a copy of this Covenant. 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. The foregoing conditions shall remain in full force and effect until such time as the Director of the Public Works Department issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 7. 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. 8. 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 Front Yard Maintenance Tract No. 5549 Page 5 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation Planning and Development Department By: Housing Authority of the City of Fresno, A Body Corpo litic gy. — By: �r�S7`a� 7f�►�C Keith Bergthold, uteri ire tsexeec- IVP �I recfifl APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney (Attach Notary Acknowledgment) Deputy ,ry A7 ro aN a y TONN �l. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of FY-G S n o On 10-30- 0r before me, JGtzavine 0/se,-7, itJoAary R.r��;C, Date Here In ert Name and Tie of the Officer personally appeared tPre6 4On ,Pent-e_ Name(s)of Signer(s) e who proved to me on the basis of satisfactory evidence to be the person(s) whose name(e) is/are subscribed to the within instrument and acknowledged to me that SUZANNE OLSE� he/sI49419ey executed the same in his/fair authorized Commission#t 1809618 capacity(iss), and that by his/herFtlaeir signature(&) on the Notary Public-California Sep 12,2012 instrument the person(&), or the entity upon behalf -of My Comm.Expires Sep Fresno Cawhich the person(e) 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 Place Notary Seal Above Signature of 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 Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): _ ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General _ ffl. ❑ Partner—❑ Limited ❑ General MCUAI _ ❑ Attorney in Fact PON; ❑Attorney in Fact • ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationaiNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827 CLERK'S CERTIFICATION State of California ) County of Fresno ) On November 20, 2008, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno, personally appeared, Keith Berqthold, Interim Planning and Development 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. 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. REBECCA E. KLISCH, CMC City Clerk, City of Fresno 0 e By Deputy - `n •��so 4. \�r4I-ED or .