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Home My WebLink AboutLLA 2010-13 - Agreement/Covenant - 10/6/2011 C� WHEN RECORDED MAIL TO I IIII III I IIII II II II IIII I I IIII III IIII I IIII I II II IIII FRESNO County Recorder Paul Dtctos, C,PA City Clerk City of Fresno DDC— 2011-0133786 2600 Fresno Street Acct 7-North American Title Company Inc Fresno, Ca 93721-3603 Wednesday, OCT 05, 2011 08 00 00 Tt 1 Pd $78.00 Nbr-0003524689 CRR/R2/2-15 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. 2010-13 Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No 2010-13 Page 2 RECITALS WHEREAS, Derrel's Mini Storage 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,the City of Fresno("City')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 timely recorded to satisfy the current and future needs for this facility, and WHEREAS, the filing of Lot Line Adjustment No 2010-13 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 desire to enter into an agreement providing for such temporary storm drainage facilities for 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 2010-13 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 Subject Property Any modifications to the temporary storm drainage facilities 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, 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 Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No 2010-13 Page 4 Property Upon confirming permanent storm drainage service for the 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 facdibes 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 nghtfully in the possession of, or owned by 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 Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No 2010-13 Page 5 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 directly or 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 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 Statement of Covenants Temporary Storm Drainage Facilities Lot Line Adjustment No 2010-13 Page 6 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 2010-13 Page 7 DATED ZD I CITY OF FRESNO, COVENANTOR: a Municipal Corporation Derrel's Mini Storage L P , Public Works Department a California Limited Partnership Patrick Wiemiller, Director By Ridenour Corporation, a California Corporation It's General Partner By 2?n - Scott Mozier, P E , As ant Director By Derrel A Ridenour, President APPROVED AS TO FORM JAMES C SANCHEZ City Attorney 4d I By o Chaffin D ut ity Attorney Date �/� Attach Notary Acknowledgments) CALIFORNIA ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF FRESNO On March 29,2011 before me Margaret De Leon, Notary Public, personally appeared Derrel A Ridenour 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 1 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 MARC RET DE LEON Commission•1902406 Notary Public-California Fresno County My Comm Expires Se 2,2014 Signature C'/ii " aJ (Seal) CLERK'S CERTIFICATION State of California ) County of Fresno ) On Auqust 12, 2011 before me, Sherrie L Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, P E , 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 Byn Deputy A$, ' ® 4�A OCA �M1 SUBORDINATION The undersigned, as holder of the beneficial interest in and under that certain Deed of Trust and Security Agreement dated December 26, 2002 and recorded on December 30, 2002 in the Official Records of Fresno County, California, as Document No 200200236727 of which the Deed of Trust in by and between Derrel's Mini Storage, Ltd., a California limited partnership as Trustor,Fidelity National Title Company, as Trustee, and Sun Life Assurance Company of Canada, a Canadian corporation, successor by amalgamation to Clarica Life Insurance Company, a Canadian corporation, successor by assignment to Clarica Life Insurance Company-U.S , a North Dakota corporation, with a principal place of business in the United States at One Sun Life Executive Park, Wellesley Hills,Norfolk County, Commonwealth of Massachusetts, 02481, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Temporary Storm Drainage Facilities for Lot Line Adjustment No. 2010-13 Dated: / ` 30 BENEFICIARY: Sun Life Assurance Company of Canada, a Canadian corporation, successor by amalgamation to Clarica Life Insurance Company, a Canadian Life Insurance Company, successor by assignment to Clarica Life Insurance Company-U.S., a North Dakota corporat By Name Matthew C.Sar�6nt Director Title By � - Name: John Moynihan Title Director,Asset Management BENEFICIARY'S ACKNOWLEDGMENT COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF NORFOLK ) On this 3o day of �j {z,r,lx� , 2011 before me, the undersigned notary public, personally appeared Ma4ke.,p C_ Sop-mac.• + , the JDro-c- c,- of Sun Life Assurance Company of Canada, a Canadian corporation, proved to me through satisfactory evidence of identification, which evidence was Personal Knowledge to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he or she signed it voluntarily for its stated purpose ' ,o= Notary Publ c _ Commonwealth of Massachusetts s My commission expires April 16, 2015 ''••.,TARY PU0 COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF NORFOLK ) On this '50 day oft-c�nbef , 2011 before me, the undersigned notary public, personally appeared John Morn lain , the �Is- of Sun Life Assurance Company of Canada, a Canadian corporation, proved to me through satisfactory evidence of identification, which evidence was Personal Knowledge to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he or she signed it voluntarily for its stated purpose ��— �IDS'w Notary Pu c Commonwealth of Massachusetts My commission expires April 16, 2015 a � a r a�'/NIIIII NIIIM�� 1\ EXHIBIT A Adjusted Parcel A Parcel A of Lot Line_ Adjustment No 2010-13, as Document No 1010512011,20110133784 , of Official Records of Fresno County, and more-particul arty-aescn Dea-as-t of l ows A portion of Parcel A of Parcel Map No 2354, recorded August 22, 1975 in Book 17 of Parcel Maps at Page 51, Fresno County Records, together with the East 250 00 feet of Parcel D of said Parcel Map No 2354, altogether described as follows COMMENCING at the Southeast corner of said Parcel A, Thence North 89°39'21" West, along the South line of said Parcel A, a distance of 203 15 feet to the TRUE POINT OF BEGINNING, Thence continuing North 89°39'21" West, along the South line of said Parcel A and along the South line of the East 250 00 feet of said Parcel D, a distance of 840 30 feet to the Southwest corner of the East 250 00 feet of said Parcel D, Thence North 00°00'00" East, along the West line of the East 250 00 feet of said Parcel D, a distance of 432 65 feet, to the Northwest corner of the East 250 00 feet of said Parcel D, Thence South 89°37'59" East, along the North line of the East 250 00 feet of said Parcel D and along the North line of said Parcel A, a distance of 665 36 feet to the Northeast corner of said Parcel A, Thence South 41°01'07" East, along the Northeasterly line of said Parcel A, a distance of 267 02 feet to a point, lying North 41°01'07" West, a distance of 309 06 feet from the Southeast corner of said Parcel A, Thence leaving the Northeasterly line of said Parcel A, South 00°04'30'' West, a distance of 23197 feet to the POINT OF BEGINNING Containing 7 942 acres, more or less Dixon K Associates,Inc —W0#02-152 Page I of I EXHIBIT B Adjusted Parcel B Parcel B of _ Lot Line. . Adjustment No 2010-13, as Document No _1@1@512@11,2@11@133784 , of Official Records of Fresno County, and mote particulafly described as follows A portion of Parcel A of Parcel Map No 2354, recorded August 22, 1975 in Book 17 of Parcel Maps at Page 51, Fresno County Records, described as follows BEGINNING at the Southeast corner of said Parcel A, Thence North 89°39'21" West, along the South line of said Parcel A, a distance of 203 15 feet, Thence North 00°04'30" East, a distance of 23197 feet, to a point on the Northeasterly line of said Parcel A, lying North 41°01'07" West, a distance of 309 06 feet from the Southeast corner of said Parcel A, Thence South 41°01'07" East, along the Northeasterly line of said Parcel. A, a distance of 309 06 feet to the POINT OF BEGINNING Containing 0 541 acres, more or less Dixon&Associates,Inc —AV0#02-1 52 Nage I of I EXHIBIT C Lot Line Adjustment No. 2010-13 Temporary Ponding Basin Legal Description Temporary Ponding Basin Parcel B of Lot Line Adjustment No 2010-13, as Document No 1@10512011,20110133784 , of Official Records of Fresno County, and more particularly descnbed as follows A portion of Parcel A of Parcel Map No 2354, recorded August 22, 1975 in Book 17 of Parcel Maps at Page 51, Fresno County Records, described as follows BEGINNING at the Southeast corner of said Parcel A, Thence North 89°39'21." West, along the South line of said Parcel A, a distance of 203 15 feet, Thence North 00°04'30" East, a distance of 23197 feet, to a point on the Northeasterly hne of said Parcel A, lying North 41'01'07" West, a distance of 309 06 feet from the Southeast corner of said Parcel A, Thence South 41°01'07" East, along the Northeasterly line of said Parcel A, a distance of 309 06 feet to the POINT OF BEGINNING Containing 0 541 acres, more or less Dixon&Associates, Inc —WO#02-152 Page I of I _WEST SHAW AVENUE o' 150' 300' 450' S89 37759 E 914 96' NORTHWEST CORNER OF SECTION 14, a TOWNSHIP 13 SOUTH, RANGE 19 EAST MOUNT DIABLO BASE AND MERIDIAN > a d S89 37'59E 665 36' ♦4 s9fi �� O� 1N0 fp o ORALE FACILITY ,��O�\�OG SCALE 1" = 150' o G 5T s>s S EXISTIN 9 s TEMPORARY STORM o DRAINAGE FACILITY 0 z 840 30' 203 15' \ S89 39 21"E 7043 45' SOUTHEAST CORNER \ OF PARCEL A EXHIBIT C TEMPORARY STORM DRAINAGE FACILITY DIXON & ASSOCIATES. INC. LAND SURVEYING 620 DEWITT ((101 CLOVIS CALIFORNIA, 93612 PH (559)297-4200 FAX (559)297-4272