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HomeMy WebLinkAboutPM 2007-03 - Agreement/Covenant - 6/24/2009 (4) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 06/22/2009,20090084181 NO FEE— Government Code 6103 CITY OF FRESNO Public Works Department P.W. File No. 5494-2007-03 >1 C� LU a W J STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY ON-SITE STORM DRAINAGE FACILITIES FOR PARCEL MAP NO. 2007-03 Statement of Covenants Temporary On-site Storm Drainage Facilities Parcel Map No. 2007-03 Page 2 RECITALS WHEREAS, CENTRAL PLAZA SHOPPING CENTER, LLC, and FRANK CHIMIENTI AND PASQUA CHIMIENTI, AS TRUSTEES UNDER THE FRANK CHIMIENTI AND PASQUA CHIMIENTI REVOCABLE LIVING AGREEMENT DATED MARCH 29, 1993, 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 Exhibit "A;" 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 the Parcel Map No.2007-03, hereinafter referred to as "map," requires the provision and maintenance of temporary on-site 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 map; and, WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary storm drainage facilities on the Subject Property to serve said map. 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, 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 Statement of Covenants Temporary On-site Storm Drainage Facilities Parcel Map No. 2007-03 Page 3 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"B,"shall be used for temporary storm drainage facilities purposes until the City of Fresno releases the Subject Property from such use. The Covenantor agrees to construct and maintain said temporary storm drainage facilities; and grants to the City of Fresno 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 shall be constructed to conform to the grading plans prepared at the Covenantor's expense and approved by the "Planning and Development Department of the City of Fresno" (Planning and Development Department). The design of the temporary ponding basin, including fencing, shall conform to the "Public Works Department of the City of Fresno" (Public Works Department) standard specifications. The work shall be constructed pursuant to a grading permit issued by the Planning and Development Department. 3. The Public Works Department Director shall determine when such temporary storm drainage facilities are no longer required. Within sixty (60) calendar days after the Public Works Department Director notifies the Covenantor that such temporary storm drainage facilities are no longer necessary, Covenantor agrees, in accordance with grading plans prepared at the Covenantor's expense and approved by the Planning and Development Department, to obtain a grading permit from the Planning and Development Department to abandon such temporary storm drainage facilities. The abandonment of said temporary storm drainage facilities may include, but is not limited to, demolition and disposal of certain structures, fencing, backfilling, compaction and Statement of Covenants Temporary On-site Storm Drainage Facilities Parcel Map No. 2007-03 Page 4 grading the Subject Property in accordance with said approved grading plan. Compaction reports, provided at the Covenantor's expense, shall be required for backfilled areas. 4. This Statement shall in no way be construed as a grant by the City of Fresno of any rights to the Covenantor to trespass upon land rightfully in the possession of, or owned by another, whether such land is privately or publicly owned. 5. The City of Fresno 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, or any part thereof, except to the extent arising out of the gross negligence or willful misconduct of the City of Fresno. The Covenantor hereby releases and agrees to indemnify,defend and save the City of Fresno, 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 indirectly from 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, 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 of Fresno. 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. 6. The conditions of this Statement are intended to benefit both the Subject Property, Statement of Covenants Temporary On-site Storni Drainage Facilities Parcel Map No. 2007-03 Page 5 the public and public properties. Accordingly, it is agreed the City of Fresno shall have the right to enforce this Statement 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. 7. The foregoing conditions and obligations of this Statement 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 Planning and Development 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. 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 enforce ability of any other provision hereof. 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 Temporary On-site Storm Drainage Facilities Parcel Map No. 2007-03 Page 6 DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation CENTRAL PLAZA SHOPPING CENTER, LLC Public Works Department Patrick Wiemiller, Director By: By: : -�— f�� Scott Mozier, P.E., Assis nt Director Harvinder Virk, Its Managing Member APPROVED AS TO FORM: FRANK CHIMIENTI AND PASQUA CHIMIENTI, AS TRUSTEES UNDER THE JAMES C. SANCHEZ FRANK CHIMIENTI AND PASQUA CHIMIENTI City Attorney REVOCABLE LIVING AGREEMENT DATED MARCH 29, 1993 By: By: Fra k Chirnienti Deputy City Attorney Date: ��3�0 ( By: � G�2z�- W*A'11_,iAjt Pasqua Chimienti (Attach Notary Acknowledgments) CLERK'S CERTIFICATION State of California ) County of Fresno ) On May 20, 2009, before me, Jennifer Morelos, Deputy City Clerk, City of Fresno, personally appeared, Scott Mozier, P.E., Assistant 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. / 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 By / of FREsyo U Deputy, * - e �q�reo oct ti CERTIFICATE OF ACKNOWLEDGEMENT State of California ) County of Fresno ) On September 12, 2008 before me, Shirlen D. Vish Notary Public, personally appeared HarvinderVirk , who proved to me on the basis of satisfactory evidence to be the persons)-whose name(s) is4we subscribed to the within instrument and acknowledged to me that he/she4hey executed the same in his/her/their authorized capacity4es)-, and that by hisAw4their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(.)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. SHIRLEN D.MSH nCOMMISSION*1798254 0@,MY Not"Public-Cslilbmis FRESNO COUNTY Comm.Expires Mey.18.2012 Signature �� (Seal) CERTIFICATE OF ACKNOWLEDGEMENT State of California ) County of Fresno ) On September 15, 2008 before me, Shirlen D. Vish Notary Public, personally appeared Frank Chimienti, who proved to me on the basis of satisfactory evidence to be the person(s)-whose name(s)isle subscribed to the within instrument and acknowledged to me that he/she4hey executed the same in his/lienkhei-r- authorized capacity(ies) and that by his/heB4heir- signature(s)on the instrument the person(o, or the entity upon behalf of which the person(o 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. SHIRLEN o.vlsn COMMISSION#1798254 p Notary PubliC-ColdbrMs FRESNO COUNTY My Comm.Expires May.ill.2012 Signature G��t� Seal g (Seal) CERTIFICATE OF ACKNOWLEDGEMENT State of California ) County of Fresno ) On September 15, 2008 before me, Shirlen D. Vish, Notary Public, personally appeared Pasqua Chimienti, who proved to me on the basis of satisfactory evidence to be the person(s)-whose name(o is4fe subscribed to the within instrument and acknowledged to me that he/she4hey executed the same in his/hers authorized capacity0es)-, and that by his/her heir-signature(s)on the instrument the person(s), or the entity upon behalf of which the persons)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. _ _ „i- SHOMEN O.v1sH COMMISSION O 1798254 f�4NotwY Pubk•Ca bmis 9 FRESNO COUNTY 911AY COMM Ex0es May.16,2012 Signature (Seal) SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 15, 2008 , in the office of the Fresno County Recorder as Document No. 2008-0071048 of which the Deed of Trust in by and between: Central Plaza Shopping Center, LLC as Trustor, Financial Title Company as Trustee, and Liberty Bank as Benericiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Temporary On-site Storm Drainage Facilities for Parcel Map No. 2007-03. DATED: BENEFICIARY By � . By: LOWELL O. , ALL , r. Executive Vice Fs',,:�vidant and Chief Lending Officer (Beneficiary to print/type document info, Name and Title; and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San m4t--ea � � On�fILULI/Lvl- .200 11 before me, �ar l a,E. 6u2r»aVAtoraY,- pu,bec� If Itte Here Insert Name and Title nofftth Officer personally appeared & rG�-W V oo d L I�c-Cx, ' Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s whose ams) ig/aM subscribed to the within instrument and acknowledged to me that Wsta6/tbZ executed the same in l)K/Jer/their authorized capacity(ies), and that by l I>&/tom signature(s) on the instrument theperson(s), or the entity upon behalf of MARTA E.GuzMAN which the persons acted, executed the instrument. ml Commission#1567190 Notary Public-California I certify under PENALTY OF PERJURY under the laws San Mateo county of the State of California that the foregoing paragraph is OMy Comm.Expires Apr 8,2009 true and correct. WITNESS my hand and official seal. Signature t / Place Notary Seal Above Signa re of Not r ublic 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: Abo .ka.;b 1n Document Date:I /740 1 Number of Pages: l 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 _ _ _ ❑ Partner—❑ Limited ❑ General ❑ Attorney in Fact ❑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.NafionalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827 EXHIBIT "A" LEGAL DESCRIPTION REMAINDER PORTION PARCEL MAP NO. 2007-03 That portion of the West Half of Lot 111 of Roeding's Villa Colony, in the City of Fresno, County of Fresno, State of California, according to the map thereof recorded in Book 2 of Record of Surveys, at Page 43, Fresno County Records, bounded and described as follows; Beginning at the Southwest Corner of Lot 111 of Roeding's Villa Colony Map recorded in Book 2 of Record of Surveys, at Page 43, Fresno County Records, thence South 89057'34" East along the South Line of Said Lot 111, a distance of 22.00 feet to the True Point of Beginning; thence continuing South 89°57'34" East along Said South Line of Said Lot 111, a distance of 582.19 feet, thence leaving Said South Line North 00°05'11' East, a distance of 90.00 feet; thence North 89°57'34" West, a distance of 10.00 feet; thence North 00°05'11" East, a distance of 241.15 feet; thence North 89059'47" West, a distance of 575.24 feet; thence South 00048'45" East, a distance of 179.85 feet; thence South 00000'00" East, a distance of 150.94 feet, to the True Point of Beginning. K:\Maps\Parcel Maps\Active\PM 2007-03\Map Docs\Legal Description Remainder Portion 091 D08.doc EXHIBIT B LEGAL DESCRIPTION TEMPORARY PONDING BASIN FOR PARCEL MAP 2007-03 Beginning at the Southeast Corner of Parcel E of Parcel Map No. 2007.03, recorded in Book--6-9 of Parcel Maps at Pages_g? and 1-�'S —, Fresno County Records; thence South 00°05'11" West, along the Easterly Line of the remainder parcel of Said Parcel Map No. 2007-03, a distance of 81.00 feet; thence North 89°59'47"West, parallel with and 81.00 feet South of the South Line of Said Parcel E of Said Parcel Map No. 2007-03, a distance of 178.41 feet; thence North 00°05'11" East, a distance of 81.00 feet to a point on the South Line of Said Parcel E of Said Parcel Map No. 2007-03; thence South 89°59'47" East, along the South Line of Said Parcel E, a distance of 178.52 feet to the Point of Beginning. 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