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Home My WebLink AboutLLA 2010-05 - Agreement/Covenant - 12/21/2010 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 NO FEE—Government Code 6103 CITY OF FRESNO Public Works Department STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY STORM DRAINAGE FACILITIES FOR LOT LINE ADJUSTMENT NO. 2010-05 Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 2 RECITALS WHEREAS, Norclo, L.P., a California Limited Partnership, 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 in the attached Exhibits "A" and "B"; 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 and that all such instruments of Subordination, if any, are attached hereto and made a part of this instrument; and, WHEREAS, a condition of approval for Conditional Use Permit No. C-03-082, requires the provision and maintenance of temporary storm water storage (ponding basin) and associated facilities, hereinafter referred to as "temporary storm drainage facilities," until such time that permanent storm drainage facilities are available to serve said Subject Property; and, WHEREAS, an agreement providing for such temporary storm drainage facilities was not recorded to satisfy the current and future needs for this facility; and WHEREAS, the filing of Lot Line Adjustment No. 2010-05 anticipates future changes in ownership of the Subject Property; and WHEREAS, the continued use of the temporary storm drainage facilities and future means for the Subject Property to channel storm drainage to the future permanent storm drainage facilities must be provided for; and WHEREAS,the Covenantor and the City of Fresno("City')desire to enter into an agreement providing for such temporary storm drainage facilities on the Subject Property. 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, Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 3 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 of Covenant 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 its respective his heirs,successors, and assigns during ownership thereof. 1. The Covenantor agrees that a portion of the Subject Property, more particularly described in the attached Exhibit"C,"shall be used for temporary storm drainage facilities purposes until the City releases the Subject Property from such use. The Covenantor agrees to construct and maintain said temporary storm drainage facilities and grants to the City the right to enter upon the Subject Property for purposes of inspection and to regulate the use of and access to said temporary storm drainage facilities on the Subject Property. 2. The temporary storm drainage facilities described in Exhibit "C" are designed and constructed to serve the property identified in Exhibit A. Additional storage capacity may be required within this temporary storm drainage facilityto service the temporary storm drainage storage needs for the future Final Maps filed pursuant to Vesting Tentative Map No. 5971. The storm drainage service needs for said future Final Maps will be determined by the City during the review and approval of grading, street and storm drainage improvement plans (as applicable) for the Final Maps. Any modifications to the temporary storm drainage facilities required to service the Final Maps are subject to the approval by the Public Works Department and Development and Resource Management Department and shall be at the Covenantor's expense. 3. The temporary storm drainage facilities shall be constructed to conform to the grading plans prepared at the Covenantor's expense and approved by the Development and Resource Management Department. The design of the temporary ponding basin, including fencing, Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 4 shall conform to the Public Works Department Standard Specifications and Drawings. The work shall be constructed pursuant to a grading permit issued by the Development and Resource Management Department. 4. The Covenantor is responsible to confirm the availability of permanent storm drainage service with the Fresno Metropolitan Flood Control District (FMFCD) for the Subject Property. Upon confirming permanent storm drainage service forthe Subject Property is available, the Covenantor shall request the Public Works Director to determine when the temporary storm drainage facilities are no longer necessary. Upon receiving such request,the Public Works Director will determine if the temporary storm drainage facilities are no longer required. The Public Works Director, upon determining the temporary storm drainage facilities are no longer required, shall issue a written notice for abandonment to the Covenantor. Such notice will state the commencement date for the abandonment of the temporary storm drainage facilities. The abandonment of the temporary storm drainage facilities may include, but is not limited to, demolition and disposal of certain structures, pipes, fencing, backfilling, compaction and grading in accordance with said approved grading plan; compaction reports, provided at the Covenantor's expense, shall be required for backfilled areas. Covenantor, in accordance with grading plans (and other improvement plans as may be necessary), prepared at the Covenantor's expense and approved by the City(Public Works Department and/or the Development and Resource Management Department as applicable), shall obtain permits(grading permit and/or street work permit as applicable)from the City to commence and complete the abandonment of the temporary storm drainage facilities.The date of completion of the abandonment work shall be the date the grading permit is finalized by the Development and Resource Management Department. 5. This Statement of Covenant shall in no way be construed as a grant by the City of any rights to the Covenantor to trespass upon land rightfully in the possession of, or owned by Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 5 another, whether such land is privately or publicly owned. 6. The City 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 Subject Property of said land covered by this Statement of Covenant, or any part thereof, except to the extent arising out of the gross negligence or willful misconduct of the City. The Covenantor hereby releases and agrees to indemnify, defend and save the City, its officers, directors, employees, agents and volunteers, 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 directlyor indirectlyfrom the performance of any or all work to be done by Covenantor in and upon the street rights-of-way and said Subject Property and upon-the premises adjacent thereto pursuant to this Statement of Covenant, 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, except to the extent arising out of the gross negligence or willful misconduct of the City. The Covenantor further agrees that the use for any purpose and by an person of any and all of the temporary storm drainage facilities and improvements hereinbefore specified, shall be at the sole and exclusive risk of the Covenantor at all times prior to the release by the City of Fresno of the temporary storm drainage facilities and other improvements thereon and therein. 7. The conditions of this Statement of Covenant are intended to benefit both the Subject Property, the public and public properties. Accordingly, it is agreed the City shall have the right to enforce this Statement of Covenant 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 representative or agent violate the terms hereof. Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 6 8. The foregoing conditions and obligations of this Statement of Covenant shall remain in full force and effect until such time as: (a) the work to abandon the temporary storm drainage facilities under the grading permit issued by the Development and Resource Management Department is completed, and (b) the Public Works Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 9. In the event that litigation is instituted to enforce or interpret any provision of this Statement of Covenant, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 10. The provisions of this Statement of Covenant 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 of Covenant so requires, in interpreting this Statement of Covenant, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No. 2010-05 Page 7 f; DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation Norclo L.P., Public Works Department a California Limited Partnership Patrick Wiemiller, Director By: Ridenour Corporation, a California Corporation By. General Partner colt Mozier, P.E., As tant Director r By. \ Stephen Dalich, ice President � APPROVED AS TO FORM: . JAMES C. SANCHEZ City Attorney By: annff' Deputy Ci orney Date: S6� /o (Attach Notary Acknowledgments) CALIFORNIA ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF FRESNO On October 27,2010 before me Margaret De Leon,Notary Public, personally appeared Stephen J.Dalich 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. MARGARET DE LEON Commietlon 0 1902406 Notary Public-CalHornia freano County M Comm.Expires Sop 2 2011 Signatur (Seal) CLERK'S CERTIFICATION State of California ) County of Fresno ) On December 9, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, PE, Assistant Director, Public Works Department, 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 REBECCA E. KLISCH, CMC City Clerk, City of Fresno y O F FRES By � p. Deputy ' ,1 EXHIBIT A Tentative Map No. 5971 Parcel Using Ponding Basin Legal Description Parcel B of Lot Line Adjustment No. 2010-05, as Document No. of Official Records of Fresno County, and more particularly described as follows: Lot 55, Lot 56 and a portion of Lot 46 as shown on the Map of Eggers Colony recorded January 9, 1891 in Volume 4 of Plats at Page 60, Fresno County Records, lying in the Northwest quarter of Section 23, Township 13 South, Range 21 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, lying South of the Gould Canal as described in Quitclaim Deed recorded June 16, 2006 as Document No. 2006-0126440, Official Records of Fresno County; Together with that portion of East Dakota Avenue as shown on said Map of Eggers Colony along the South line of said Lot 55, which would pass by operation of law as abandoned by Fresno County Order of Abandonment, recorded July 3, 1959 as Document No. 47112 in Book 4243 at Page 365, Official Records of Fresno County, altogether described as follows: COMMENCING at the center quarter corner of said Section 23; Thence South 89°58'48" West, along the South line of the Northwest quarter of said Section 23, a distance of 1262.22 feet to the TRUE POINT OF BEGINNING; Thence South 89°58'48" West continuing along the South line of said Northwest quarter, a distance of 1356.93 feet to a point on the East right of way line of North Temperance Avenue as described in the Grant Deed to the County of Fresno recorded March 8, 1982 in Book 7870 at Page 622, Official Records of Fresno County; Thence North 00°06'02" West along the East right of way line of said Temperance Avenue, a distance of 915.72 feet to a point on the Southerly line of said Gould Canal; Thence along the Southerly line of said Gould canal the following courses: South 60°57'03" East, a distance of 9.13 feet to the beginning of a 692.00 foot radius tangent curve, concave to the Northeast; Dixon&Associates,Inc.—WO#02-135 Page 1 of 2 EXHIBIT A Tentative Map No. 5971 Parcel Using Ponding Basin Legal Description Thence Southeasterly along said curve and the Southerly line of said Gould Canal, through a central angle of 16°08'50", an are distance of 195.02 feet; Thence South 77°05'53" East, a distance of 268.52 feet; Thence South 77°44'00" East, a distance of 73.88 feet; Thence South 76°30'53" East, a distance of 199.23 feet; Thence South 77°20'11" East, a distance of 203.96 feet; Thence South 76°18'45" East, a distance of 205.56 feet; Thence South 74°18'25" East, a distance of 75.26 feet; Thence South 76°18'38" East, a distance of 31.14 feet; Thence South 77°30'38" East, a distance of 151.64 feet; Thence South 12°09'23" West, leaving the Southerly line of said Gould Canal, a distance of 40.16 feet; Thence South 00°04'22" East, a distance of 485.15 feet; Thence South 00°21'25" West, a distance of 40.83 feet to the TRUE POINT OF BEGINNING. Containing 22.726 acres, more or less. Dixon&Associates,Inc.—W0402-135 Page 2 of 2 EXHIBIT B Tentative Map No. 5971 Parent Parcel with Ponding Basin Legal Description Parcel A of Lot Line Adjustment No. 2010-05, as Document No. , of Official Records of Fresno County, and more particularly described as follows: A portion of Lot 46 as shown on the Map of Eggers Colony recorded January 9, 1891 in Volume 4 of Plats at Page 60, Fresno County Records, lying in the Northwest quarter of Section 23, Township 13 South, Range 21 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, lying South of the Gould Canal as described in Quitclaim Deed recorded June 16, 2006 as Document No. 2006-0126440, Official Records of Fresno County; Together with that portion of East Dakota Avenue as shown on said Map of Eggers Colony along the South line of said Lot 46, which would pass by operation of law as abandoned by Fresno County Order of Abandonment, recorded July 3, 1959 as Document No. 47112 in Book 4243 at Page 365, Official Records of Fresno County, altogether described as follows: COMMENCING at the center quarter corner of said Section 23; Thence South 89°58'48" West, along the South line of the Northwest quarter of said Section 23, a distance of 25.00 feet to the TRUE POINT OF BEGINNING; Thence South 89°58'48" West continuing along the South line of said Northwest quarter, a distance of 1237.22 feet; Thence North 00°21'25" East, a distance of 40.83 feet; Thence North 00°04'22" West, a distance of 485.15 feet; Thence North 12°09'23" East, a distance of 40.16 feet to a point on the Southerly line of said Gould Canal; Thence along the Southerly line of said Gould Canal the following courses: South 77°30'38" East, a distance of 24.84 feet; South 78°19'58" East, a distance of 113.41 feet; Dixon&Associates,Inc.—W0#02435 Page 1 of 2 EXHIBIT B Tentative Map No. 5971 Parent Parcel with Ponding Basin Legal Description Thence South 77°06'42" East, a distance of 85.86 feet; Thence South 76°31'29" East, a distance of 323.49 feet to the beginning of a 3,392.00 foot radius tangent curve, concave to the North; Thence Easterly along said curve, through a central angle of 05°06'58", an arc distance of 302.88 feet; Thence, tangent to said curve, South 81°38'27" East, a distance of 297.19 feet; Thence South 83°27'05" East, a distance of 104.20 feet to a point on the East line of said Lot 46; Thence South 00°06'57" East, along the East line of said Lot 46, a distance of 329.54 feet to the TRUE POINT OF BEGINNING. Together with underlying fee interest, if any, adjacent to the above described property, in and to, the adjoining public right of way. Containing 12.350 acres, more or less. Dixon&Associates,Inc.—WO#02-135 Page 2 of 2 EXHIBIT C Tentative Map No. 5971 Temporary Ponding Basin Legal Description A portion of Lot 46 as shown on the Map of Eggers Colony recorded January 9, 1891 in Volume 4 of Plats at Page 60, Fresno County Records, lying in the Northwest quarter of Section 23, Township 13 South, Range 21 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, lying South of the Gould Canal as described in Quitclaim Deed recorded June 16, 2006 as Document No. 2006-0126440, Official Records of Fresno County; Together with that portion of East Dakota Avenue as shown on said Map of Eggers Colony along the South line of said Lot 46, which would pass by operation of law as abandoned by Fresno County Order of Abandonment, recorded July 3, 1959 as Document No. 47112 in Book 4243 at Page 365, Official Records of Fresno County, altogether described as follows: COMMENCING at the center quarter corner of said Section 23; Thence South 89°58'48"West, along the South line of the Northwest quarter of said Section 23, a distance of 1125.32 feet to the TRUE POINT OF BEGINNING; Thence South 89°58'48" West continuing along the South line of said Northwest quarter, a distance of 136.88 feet; Thence North 00°21'25"East,a distance of 40.83 feet; Thence North 00°04'22"West,a distance of 485.15 feet; Thence North 12°09'23" East, a distance of 40.16 feet to a point on the Southerly line of said Gould Canal; Thence along the Southerly line of said Gould Canal the following courses: South 77°30'38"East, a distance of 24.84 feet; South 78°19'58"East,a distance of 105.63 feet; Thence leaving the Southerly line of said Gould Canal, South 00°06'57" East, parallel with and 1125.32 feet West of the East line of said Lot 46, a distance of 538.46 feet to the TRUE POINT OF BEGINNING. Containing 75,188 sf., 1.726 acres, more or less. Dixon&Associates,lnc.—WO#02-135 Page 1 of 1 c� -r1 U) X o Z n , 0 _� c> , W Nzo o2�sf CARSON NOo•04'22"w 485.15' /rrlFAENUE 00 S77 30'38" (nTEMPORARY STORM 24.84' f DRAINAGE FACILITY O c � ! 05.83.5g"f SOO'O6'57"E 538.46' o o x - - r {! co o cnclt o cof J L m Z �r ` N N 0 > p I r I — - W w ! 11 O n N 1 y` m F� 0 1�y f f1 ' c') m�ZC V) D A rrl I� ' ZO 8 0 CA:E I m�? oom�T Zzwo I ty NORTH LOCAN AVENUE 10o N �.0 V l N N � o N - x SCALE: D0� x Z- 1"=200' D m t0 M• V i � o A ID N V A �_ N