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Home My WebLink AboutPM 2011-04 - Agreement/Covenant - 12/8/2011 WHEN RECORDED MAIL TO: City Clerk City of Fresno U. 2600 Fresno Street OFresno, Ca 93721-3603 V Cn 12/08/2011,20110163915 Q NO FEE—Government Code 6103 W a CITY OF FRESNO Public Works Department STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY STORM DRAINAGE FACILITIES FOR PARCEL MAP NO. 2011-04 Statement of Covenants Temporary Storm Drainage Facilities Parcel Map No. 2011-04 Page 2 RECITALS WHEREAS, LEROY H. KRUM, 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 follows: Parcel B of Parcel Map No. 2011-04 according to the map thereof recorded in Book—QLof Parcel Maps at Page(s)J6X- , 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 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 Parcel Map No. 2011-04, 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 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, 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 Statement of Covenants Temporary Storm Drainage Facilities Parcel Map No. 2011-04 Page 3 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'A,"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 "A" 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 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 Statement of Covenants Temporary Storm Drainage Facilities Parcel Map No. 2011-04 Page 4 will determine if the temporary storm drainage facilities are no longer required. The Public Works Director, upon determining the temporarystorm 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 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 Statement of Covenants Temporary Storm Drainage Facilities Parcel Map No. 2011-04 Page 5 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. 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. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Statement of Covenant,the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal Statement of Covenants Temporary Storm Drainage Facilities Parcel Map No. 2011-04 Page 6 expenses. For the purposes of this Statement of Covenant, "attorneys'fees"and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses, and all other expenses incurred by the prevailing party's attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation,whether or not otherwise recoverable as"attorneys'fees"or as"costs" under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys' fees. 10. The waiver by either party of a breach by the other of any provision of this Statement of Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Statement of Covenant. No provisions of this Statement of Covenant may be waived unless in writing and signed by all parties to this Covenant. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 11. 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 Parcel Map No. 2011-04 Page 7 DATED: NdVr-1'" IGr 2J// CITY OF FRESNO, COVENANTOR: a Municipal Corporation LEROY H. KRUM Public Works Department Patrick Wiemiller, Director L ROY H. K UM By: Scott Mozier, P.E., AssistAt Director APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: (Attach Notary Acknowledgments) tnanno Chaffin Senior De oty City Attorney f ' Date: /1 /1 / State of California County of Fresno On October 4, 2011 before me, Lauren Michele Aguilar, Notary Public, personally appeared Leroy H. Krum 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. LAUREN MICHELE AGUILAR WITNESS my hand and official seal. COMM. #1787301 NOTARY PUBLIC•CALIFORNIA FRESNO COUNTY r My Comm.Expires Jan.26,2012 Notary Name Lauren Michele Aguilar Notary Phone (559) 431-3535 Commission #: 1787301 County: Fresno Commission Expires: Jan. 26, 2012 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: Statement of Covenants affecting land development for temporary storm drainage facilities for parcel map 2011-04 Number Of Pages: 10 pages including this page CLERK'S CERTIFICATION State of California) County of Fresno ) On November 16, 2011, before me, Stacey Woo, Deputy City Clerk, 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 be 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 OR 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. 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