HomeMy WebLinkAboutPM 2005-30 - Agreement/Covenant - 8/14/2007 Recording Requested By:
Public Works Department IIII III III I III II II(III II I III III'III I IIII I III III II
City of Fresno
No Fee-Gov't. Code Sections
6103 and 27383 FRESNO County Recorder
Robert C, Werner
When Recorded, Mail To: DOC— 2007-0106712
Public Works Department
City of Fresno Wednesday, MAY 30, 2007 15:03:30
2600 Fresno Street Ttl Pd $0,00 Nbr-0002518757
Fresno, CA. 93721-3623 J Z G I R 3 I 1-12
SPACE ABOVE THIS LINE FOR RECORDER'S USE
2007-03
COVENANT AND PERMIT
For Encroachment in a Public Right-of-Way
The undersigned Jordan M. Freeman, a married man as his sole and separate
property, Jared T. Freeman, a married man as his sole and separate property, Spencer
J. Freeman, a married man as his sole and separate property, and Sara Freeman, a
single woman, all as Tenants in Common, individually and collectively hereinafter
referred to as "Covenantor", are the record owners of the real property situated in the
City of Fresno, County of Fresno, State of California, APN 506-320-42S, commonly
known as the Remainder parcel as shown on Parcel Map No. 2004-20, according to
the map thereof recorded in Book 65 of Parcel Maps at Pages 46 and 47, Fresno
County Records, hereinafter called the "Real Property".
WHEREAS, certain property immediately outside and abutting the Real
Property is a public easement and right-of-way, hereinafter referred to as the "Public
Right of Way"; and
WHEREAS, pursuant to Chapter 11 Article 2 of the Fresno Municipal Code,
Covenantor has requested an Encroachment Permit ("Permit") from the City of Fresno
("City") for permission to install a 10-inch diameter storm drain line, hereinafter referred
to as the "Facility", to connect to Fresno Metropolitan Flood Control District's system
within a portion of the Public Right of Way as shown in Exhibit "A" attached hereto and
incorporated herein, hereinafter referred to as the "Encroachment Area"; and
WHEREAS, the City's Department of Public Works Director ("Director") has
reviewed Covenantors' Encroachment Permit Application and finds as follows: (1) that
the issuance of the Permit will meet a legitimate purpose of Covenantor; (2) that this
purpose cannot be feasibly accomplished by other means; and (3) that issuance of the
Permit for Covenantor's purpose will not be detrimental to the public health, safety, and
welfare.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledged, the parties agree as follows:
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1. In accordance with this Covenant and Permit and subject to Chapter 11,
Article 2, Section 11-216.5 of the Fresno Municipal Code, a nonexclusive,
revocable Encroachment Permit to use and occupy the Encroachment Area
solely as provided for hereunder shall issue to Covenantor automatically with
the recording of this Covenant and Permit.
2. The Encroachment Permit shall continue in effect until revoked by City in any
manner provided hereunder. The City, its representatives, permittees and
franchisees shall have the right to enter upon all or any part of the
Encroachment Area at any time for any lawful purpose(s).
3. Covenantor is neither an employee, partner nor agent of the City. Covenantor,
at its sole cost, expense and liability, shall use the Encroachment Area solely
for purposes of installing, operating, maintaining and repairing the Facility. In
the event Covenantor fails to reasonably repair any damage to the
Encroachment Area caused by Covenantor or the Facility, City may do so at
the sole cost, expense and liability of Covenantor.
4. Covenantor shall maintain the Encroachment Area free of any nuisance in fact
or in law. Covenantor shall at all times conduct Covenantor's activities, or
cause Covenantor's activities to be conducted, in full compliance with all
applicable federal, state, and local laws. Covenantor shall be solely
responsible for operation, maintenance and repair of the Facility, including
without limitation all costs associated therewith. Covenantor shall at all times
operate, maintain and repair the Facility so that there is no unreasonable
interference with vehicular or pedestrian traffic. In addition to its governmental,
legislative, administrative and regulatory activities, the City retains the right to
verify that the Covenantor is performing its respective obligations in
accordance with controlling law and the terms and conditions hereof
5. This Encroachment Permit does not relieve Covenantor from the obligation of
obtaining a street work permit pursuant to Chapter 11, Article 2, Section 11-
202 for any work to be done in the Public Right of Way contiguous to or within
the Encroachment Area. Before beginning to install the Facility, Covenantor
shall obtain written approval of all plans, drawings, and specifications for such
installation from the Director. Upon such approval, Covenantor shall install the
Facility as promptly as practicable in strict accordance with the approved
plans, drawings, and specifications. No change shall be made in the approved
plans, drawings, or specifications without the prior written approval of the
Director.
6. Covenantor shall join and maintain at all times membership with Underground
Service Alert.
7. City makes no representation or warranty as to the nature or extent of City's
interest in, or the condition or suitability of, the Encroachment Area.
Covenantor shall inform and satisfy itself in such regards. Convenantor shall
obtain any and all title reports, permits, authorizations, consents and approvals
necessary to lawfully enter the Encroachment Area and install the Facility. This
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Encroachment Permit is not permission to trespass on any property, publicly or
privately owned.
8. At all times hereunder, Covenantor shall pay for and maintain in full force and
effect a policy of COMMERCIAL GENERAL LIABILITY insurance which shall
include contractual, products and completed operations coverages, bodily
injury and property damage liability insurance with combined single limits of
not less then $1,000,000 per occurrence. Said policy shall be with an
insurance company either (i) admitted by the California Insurance
Commissioner to do business in the State of California and rated not less than
"A-VII" in Best's Insurance Rating Guide, or (ii) authorized by the City's Risk
Manager.
The above described policy of insurance shall be endorsed to provide an
unrestricted thirty (30) day written notice in favor of City, of policy
cancellation, change or reduction of coverage. In the event any policy is
due to expire during the life of this Permit, Covenantor shall provide
a new certificate evidencing renewal of such policy not less than
fifteen (15) days prior to the expiration date of the expiring policy.
Upon issuance by the insurer, broker, or agent of a notice of cancellation,
change or reduction in coverage, Covenantor shall file with City a certified
copy of the new or renewal policy and certificate for such policy. The
General Liability insurance policy shall be written on an occurrence form
and shall name City, its officers, officials, agents, employees and
volunteers as an additional insured. Such policy of insurance shall be
endorsed so Covenantor's insurance shall be primary and no contribution
shall be required of City. Covenantor shall furnish City with the
certificate(s) and applicable endorsements for the required
insurance prior to any occupancy or use of the Encroachment Area.
Covenantor shall furnish City with a copy of the actual policy upon the
request of the City's Risk Manager at any time during the life of the permit.
If at any time during the life of the permit, Covenantor fails to maintain the
required insurance in full force and effect, any work being performed
related to and/or the use of the Encroachment Area shall be discontinued
immediately until notice is received by City that the required insurance has
been restored to full force and effect and that the premiums therefore
have been paid for a period satisfactory to the City.
9. Covenantor shall indemnify, hold harmless and defend the City and each of its
officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether imposed
under authority of statute or common law, in contract, tort, or strict liability,
including but not limited to personal injury, death at any time, and, property
damage) incurred by the City, Covenantor or any other person, and from any
and all claims, demands and actions in law or equity (including attorney's fees
and litigation expenses) arising or alleged to have arisen directly or indirectly
out of or in any way connected with (a) the issuance and pursuit of this
Covenant and Permit, (b) use of the Encroachment Area by Covenantor, its
employees, officers, agents, contractors or subcontractors, and/or (c) design,
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installation, operation, maintenance, repair and/or removal of the Facility.
Covenantor's obligations under the preceding sentence shall apply regardless
of whether the City or any of its officers, officials, employees, agents or
volunteers are actively or passively negligent, but shall not apply to any loss,
liability, fines, penalties, forfeitures, costs or damages caused solely by the
active negligence or by the willful misconduct of City or any of its officers,
officials, employees, agents or volunteers. This section shall survive
revocation of this Covenant and Permit.
10. The City, in its sole discretion, may revoke the Encroachment Permit (i) upon
Director's determination that the Covenantor has failed to comply with one or
more of the terms, conditions, or restrictions hereunder, and/or (ii) upon
Director's determination that the use of the Encroachment Area, or any portion
thereof, is required for any municipal or public utility purpose or is detrimental
to or not in furtherance of the public health, safety, welfare and interest. City
shall endeavor to give at least ninety (90) days written notice of such
requirement and/or finding either by mailing such notice through the United
States mail, or by personal delivery, to Covenantor at its address of record or
at such other address as is provided to City in writing by Covenantor. Upon
any revocation of the Encroachment Permit, Covenantor shall at its sole cost,
expense and liability remove the Facility and any and all appurtenant
structures and equipment located in the Encroachment Area, restore the
Encroachment Area to substantially the same condition it was in prior to
removal of the Facility, and surrender to the City all possession, use and
occupation of the Encroachment Area. Further, Covenantor shall defend,
indemnify, and hold harmless the City and each of its officers, officials,
employees, agents and volunteers from and against any and all liabilities,
demands, claims, damages, losses, costs, and expenses of whatsoever kind
or nature, including, but not limited to, any and all direct and indirect costs of
defense, made against, or incurred or suffered by, any such indemnitee
resulting directly or indirectly from the requirements of this Section, or
otherwise in connection with the reoccupation and repossession of the
Encroachment Area by the City.
11. This Covenant shall run with the land, and shall be jointly and severally binding
upon Covenantor and each of its heirs, representatives, successors, and
assigns.
12. Covenantor represents and warrants that Covenantor has consulted with the
City of Fresno's Development Department to confirm whether any additional
permit(s) are required for the encroachment and Facility and Covenantor
agrees to apply for and acquire such additional permit(s). City may revoke the
Encroachment Permit in the manner provided in Section 10 above, should
such additional permit(s) be required by City and is not timely obtained by
Covenantor.
13. The prevailing party in any action to enforce or interpret any term, covenant or
condition of the Covenant and Permit shall be entitled to recover from the
other party its reasonable attorney's fees and legal expenses.
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14. The provisions of the Covenant and Permit are severable. The invalidity or
unenforceability of any one provision, or part thereof, shall not affect the
validity or invalidity of any other provision, provided that City may revoke the
Encroachment Permit in the manner provided in Section 10 above, in the
event such invalidity or unenforceability shall cause the Covenant and Permit
to fail of its essential purposes.
15. The parties acknowledge that this Covenant and Permit in its final form is the
result of combined efforts of the parties and that, should any provision of this
Covenant and Permit be found to be ambiguous in any way, such ambiguity
shall not be resolved by construing this Covenant and Permit in favor or
against any party, but rather by construing the terms in accordance with their
generally accepted meaning.
16. In the event of any conflict between the body of this Covenant and Permit and
any Exhibit or Attachment hereto, the terms and conditions of the body of this
Covenant and Permit shall control and take precedence over the terms and
conditions expressed within the Exhibit or Attachment. Furthermore, any terms
or conditions contained within any Exhibit or Attachment hereto which purport
to modify the allocation of risk between the parties, provided for within the
body of this Covenant and Permit, shall be null and void.
17. Whenever in this Covenant and Permit the context hereof requires, the neuter
shall include the masculine or feminine or both and the singular shall include
the plural.
18. Covenantor agrees to protect and hold harmless the City, the Facility, the
Encroachment Area, and any and all improvements located therein or thereon
and any and all facilities appurtenant thereto and any and all other
property(ies) located therein or thereon and any and all of City's interest(s) in
and/or to said premises, improvements, appurtenant facilities, and/or other
property(ies), from any and all such taxes and assessments, including any and
all interest, penalties and other expenses which may be imposed thereby or
result therefrom, and from any lien therefor or sale or other proceedings to
enforce payment thereof. Nothing within this Section 18 shall be deemed to
limit any of Covenantor's rights to appeal any such levies and/or assessments
in accordance with the rules, regulations, laws, statutes, or ordinances
governing the appeal process of the taxing authority(ies) making such levies
and/or assessments.
19. By its signature(s) hereunto affixed, Covenantor expressly acknowledges and
clearly understands that neither this Covenant and Permit, nor the issuance of
this Covenant and Permit by City to Covenantor nor acceptance of this
Covenant and Permit by Covenantor constitutes, in any way whatsoever, any
agreement by or on behalf of City to enter into any further/other agreement,
permit, lease, or other arrangement of any type whatsoever, beyond the term
of or in addition to this Covenant and Permit.
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In WITNESS WHEREOF, the Covenantor has executed this Covenant and Permit.
- "—?n - Date: /)41&1— , 2007
Jordan M eeman X
cirz �1) Date: Y V , 2007
Jared T. Freeman
Date: G , 2007
Spen r J. Freeman
AKA: Sp ce r Freeman
Date: A,. 41 12007
Sar Freeman
IMPORTANT NOTE: This covenant must be executed by all record owners of the Real
Property and acknowledged before a notary public.
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APPROVED AS TO COVENANT AND PERMIT ISSUANCE TERMS AND
CONDITIONS AND PROPERTY DESCRIPTION:
I`l A , 2007
Michael T. Kim, PE
City Engineer
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: d��--
Laurie A. Avedisian , Deputy
D:\DATA\Encroachments\Encroachment 2007-03.wpd
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CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO)
On May 30, 2007, before me, Elvia Sommerville, Deputy City Clerk City of Fresno,
personally appeared, Michael T. Kirn, PE City Engineer , 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 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.
WITNESS my hand and official seal.
REBECCA E. KLISCH
CITY CLERK, CMC
By P�
Deputy
ACKNOWLEDGMENT
State of California
County of �-✓ (�
On 5 before me, I l m #Vtny5a Pail)(,
_I 1An (h6re insert name and title o the officel')
personally appeared �C1�C��{/l ry 1. I-YQ,(,li✓l
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the perso*fwhose names/esubscribed to the within instrument and
acknowledged to me that hehs- aZthe executed the same in his/4e/their authorized
capacity(.ies-)and that by his/ham!±hair signature(o on the instrument the person.e
or the entity upon behalf of which the persone'acted, executed the instrument.
WITNESS my hand and official seal. RM
N HINDMARSH
1656640C-CALIFORNIA
COUNTY
s April 7,2010
Signature
(Seal)
ACKNOWLEDGMENT
State of California
County of li5VL0 / /�
On g d 7Z before me, /{'✓� CJ�Y! �112o a �dfd✓ Il�
(h re insert name and title df the offs r)
personally appeared J I ►���Vj'1�{/�
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(Wwhose name(Wis/aF-e-subscribed to the within instrument and
acknowledged to me that he/sheAbey-execute d the same in his/hetftheir authorized
capacity4est, and that by his/ ?r signatureW on the instrument the person(,;
or the entity upon behalf of which the person(s)-acted, executed the instrument.
WITNESS my hand and official seal.
KIMBERLY ANN HINDMARSH
COMM. #1656640 -+
NOTARY PUBLIC•CALIFORNIA
Signature FRESNO COUNTY
@MY
Comm.Expires April 7,2010
(Seal)
ACKNOWLEDGMENT
State of California
County of FNraYxz-
On 5161cn before me, TUJ:2w,
(here insert n e and title of the officer)
personally appeared s pc��� e2yva�
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(, whose names/ate-subscribed to the within instrument and
acknowledged to me that he/shQA4ey executed the same in his/T heir authorized
capacity(iq< and that by his/herr'/tht1'r signaturej*�-bn the instrument the persoRW,
or the entity upon behalf of which the personJ%�acted, executed the instrument.
C.REED
Commission#1459519
WITNESS my hand and official seal. .-. Notary Public-California
Fresno County
C �� My Comm.Expires Dec 30,2007
Signature
(Seal)
American LegalNet,Inc.
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ACKNOWLEDGMENT
State of California
County of Fizsvl-o
On �1 before me, No- ,�,� � t L
(here insert n e and title of the officer)
personally appeared � �
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/she/may executed the same in hos/her/tl(ir authorized
capacity(, and that by lK/her/JA6it signature(s' on the instrument the person
or the entity upon behalf of which the person,Kacted, executed the instrument.
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WITNESS my hand and official seal. 59519
.�as Notary Publk-California
' Fresno County
Signature My Comm.Expires Dec 30,2007
(Seal)
American legaiNet,Inc.
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APPROX. 873 FT.
N/'0 CENTER OF EXHIBIT "A"
INTERSECTION,
BULLARD AND N. MANHOLE 13
CONSTRUCT TYPE A,
FIGARDEN DR. CASE 1, MANHOLE
— -- _ _— STA. 13+05 NIS
—" STA. 10+00 E/W
RIM ELEV=305.94
CONSTRUCT 15" STORM DRAIN FL 15" S. =297.97
TO BE MAINTAINED BY FMFCD FL 10" E. =297.97
(TO BE MAINTAINED BY
FMFCD)
—EX. 24" IR
\ —
NEW MEDIAN ISLAND
TO BE CONSTRUCTED
EXISTING 8" SEWER
ENCROACHMENT INSTALL 78 LF OF 10" DRIVE
V) AREA STORM DRAIN PIPE
N. FIGARDEN (SDR35)(PRIVATE LINE)
w CONSTRUCT N
VALLEY GUTTE7�\ .... ......
W/PROP. LINE
APN: 506-320-42
lEX. 24" IRR r
3' 9
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EXISTING R/W Z7
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PRIVATE R/W
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APN: 506-320-42
PRIVATE ENTRY INTO
PM 2005-30 O'
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NORTH N
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10 " STORM DRAIN
PARCEL MAP 2005 - 30
ENCROACHMENT PERMIT REQUEST
APN: 506-320-42
2007-03