Loading...
HomeMy WebLinkAboutPM 2014-04 - Agreement/Covenant - 3/10/2016 (2) ` lllllllllllllllrlllllllllllllllllllllllllllll�Ill FRESNOCounty Recorder Paul 01Cta5, C.p,A, DDC— 2016-0028$85 Aec! 55-First American Fresno ER After ReWrdin Return To: Tuesday, MAR 08, 2016 08:00:00 Target Corporation Tt 1 pd $68.00 Rcpt # 0004488539 Property Development RGR I R4/1-20 1000 Nicollet Mail,TPN-12H f Minneapolis, MN 55403 Attn: Real Estate Portfolio Management(T-1417 Fresno,CA) SUPPLEMENTAL AGREEMENT TO ACCESS AND UTILITY EASEMENT AND RESTRICTION AGREEMENT This Supplemental Agreement to Access and Utility Easement and Restriction Agreement ("Supplement") is made effective as of SRV ?A , 2016, by and between TARGET CORPORATION, a Minnesota Corporation ("Target"), BLACKSTONE & BULLARD, L.P. a California Limited Partnership("Adjacent Owner") and the CITY OF FRESNO, a Municipal Corporation ("City") Recitals A. Target is the owner of certain real property in the City which is more particularly described on Exhibit A attached hereto and made a part hereof("Target Tract"). B. Adjacent Owner is acquiring two parcels from Target which are adjacent to the Target Tract, more particularly described.on Exhibit B attached hereto and made a part hereof, and which are designated as "Outparcel I" and "Outparcel 2" on the Site Plan attached hereto as Exhibit C and made a part hereof(collectively the "Adjacent Tracts"). C. Pursuant to an Access and Utility Easement and Restriction Agreement, executed by Target and Adjacent Owner and to be recorded concurrently with the Grant Deed _ 1 of 12 f conveying the Adjacent Tracts by Target to Adjacent Owner("Access Agreement"),and with this Supplement, Target shall grant Adjacent Owner easements for vehicular ingress and egress, utility lines and storm water drainage, as provided by the Access Agreement. D. Target and Adjacent Owner have made agreements regarding the use and operation of the Adjacent Tracts and. requiring Target reserve certain easements for the benefit of the Target Tract. E. The City is not a party to the Access Agreement, but has certain interests which the parties hereto wish to recognize and rights which the parties wish to memorialize. Agreement In consideration of the foregoing Recitals, the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree that the Target Tract and the Adjacent Tracts shall be held,conveyed, encumbered, used, occupied, developed, maintained,and improved subject to the provisions this Agreement. Each of the covenants, conditions, and restrictions contained in this Supplement shall run with the Target Tract and the Adjacent Tracts and shall be binding upon and inure to the benefit of each successive owner of the Target Tract and the Adjacent Tracts and his/her/Its heirs, successors, and assigns. 1. Recitals. The Recitals are incorporated herein as if fully set forth. 2. Benefit of the City. The parties hereto make the following agreements with respect to the Target Tract and the Adjacent Tracts for the benefit of the City 2 of 12 a. In the event of any conflict between this Supplement and the Access Agreement, this Supplement shall prevail. b. The City will continue to have the right of iirunediate access to all portions of the Target Tract and the Adjacent Tracts for emergency services preserving the public health, safety and welfare. C. Target and Adjacent Owner shall have the duty to maintain and repair all onsite sewer, water and storm drainage lines located within the common area on the Target Tract and/or the Adjacent Tracts as provided in the Access Agreement. d. Target and Adjacent Owner shall have the duty to pay for all utility charges which are not separately metered and billed to other occupants of the Target Tract or the Adjacent Tracts, including,but not limited to, charges for sewer, water, gas, electric and solid waste collection service, as provided by the Access Agreement. C. Target and Adjacent Owner shall landscape and maintain the Target Tract and Adjacent Tracts as provided in the Access Agreement. f. Each parcel of the Target Tract and the Adjacent Tracts shall be developed and used in such a manner as to enable reciprocal cross access between and among the Target Tract and Adjacent Tract, 3of12 regardless of whether the parcels of the Target Tract and the Adjacent Tracts are owned or leased by the same or different persons for the following purposes: (i) Pedestrian and vehicular ingress and egress to the common areas; (ii) Drainage for storm water and storm water facilities; (iii) All utilities (including but not limited to gas, electricity, water, fire suppression systems, sanitary sewer, tele-cominunications, etc.); g. Mutual easements appurtenant are as created in the Access Agreement apply to Target Tract and the Adjacent Tracts as a burden and benefit, to satisfy the need for cross access for each of the purposes identified in this Supplement. h. Target and/or Adjacent Owner shall repair and maintain all components of the fire suppression water systems installed on the respective tracts including but not limited to those components relating to the underground water supply for the fire suppression system in full compliance with all applicable federal and state laws and the Fresno Municipal Code. i. As between the City and Target and/or Adjacent Owner, the cost of maintenance and repair of improvements, utility charges which are not 4 of 12 separately metered and billed (including but not limited to charges for sewer, water, solid waste collection, gas, electric and tele-communication service), shall be the responsibility of Target and/or Adjacent Owner. 3. Each of the covenants, conditions, and restrictions contained in this Supplement shall run with the Target Tract and the Adjacent Tracts and shall be binding on each successive owner of the Target Tract and the Adjacent Tracts, his/her/its heirs, representatives, successors, and assigns. 4. if any party is required to commence any proceeding or legal action to enforce or interpret any itein or condition of this Supplement,the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. For the purposes of this Supplement,"attorneys' fees" and"legal expenses" include, without Iimitation, paralegals' fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses,and al l 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. 5. The waiver by either party of a breach by the other of any provision of this Supplement shall not constitute a continuing waiver or a waiver of any subsequent breach of 5of12 either the same or a different provision of this Supplement. No provisions of this Supplement may be waived unless in writing and signed by all parties to this Supplement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. b. The conditions and obligations of this Supplement shall remain in full force and effect until such time as the Development&Resource Management Director of the City issues a written release of such conditions and obligations and records such release with the Fresno County Recorder, This Agreement cannot be amended or modified without the written consent of the parties hereto. 7. The provisions of this Supplement 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 enforceability of any otherprovision hereof. Whenever the context of the Supplement so requires, in interpreting this Supplement, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. S. City does not assume nor is it responsible for performance of any of the obligations of Target or Adjacent owner as provided in the Access Agreement. 9. City shall have the right to enforce the agreements of Target and Adjacent Owner in Section 2 provided herein. 10. Notices. All notices required or permitted pursuant to this Agreement shall be 6of12 in writing and shall be delivered, mailed or transmitted to the parties at the following addresses. Each notice shall be deemed effective and given upon receipt, if personally delivered; upon the date of receipt as specified in the return receipt, if sent by certified mail with a return receipt requested; on the date of receipt if transunitted by telecopier or electronic mail on a business day prior to 2:00 p.m.,and on the next business day following the date of receipt if transmitted by telecopier or electronic mail after 2:00 p.m. on a business day or at any time on a non-business day;or on the third(3'd'day after mailing; if mailed via first class snail, postage prepaid, addressed as follows: To Target: Target Corporation Property Development Attn: Real Estate Portfolio Management (T-1417 Fresno, CA) 1000 Nicollet Mall, TPS-3155 Minneapolis, MN 55403 To Adjacent Owner: Blackstone & Bullard, L.P. c/o Paynter Realty & Investment, Inc. 17671 Irvine Blvd, Ste 204 Tustin, CA 92680 With a copy to: Robert K. Hillison, Esquire Lang, Richert & Patch 5200 North Palm Avenue, Suite 401 Fresno, CA 93704 To City: City of Fresno Development & Resource Management Department Attn: Jennifer K. Clark, Director 2600 Fresno Street, Room 3065 7 of 12 Fresno, CA 93721 With a copy to: Douglas Sloan, City Attorney 2600 Fresno Street, Room 2031 Fresno, CA 93721 11. Binding. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, successors, administrators and assigns of the parties hereto. 12. Integrated Agreement. No representations, warranties, agreements or covenants have been made with respect to any of the matters with which this Agreement is concerned other than those expressly set forth herein. This Agreement is intended as a complete and exclusive statement of the terms of the agreement of the parties, contains the full and complete agreement and understanding of the parties, and supersedes all prior or contemporaneous negotiations, agreements or understandings (oral or written). This Agreement may not be modified,amended or supplemented except in writing signed by the parties hereto. 13. Severability. If one or more of the terms,conditions, covenants or agreements in this Agreement should be prohibited by or inconsistent with a provision of law contrary to which parties may not contract,then such terrn(s),condition(s), covenant(s)or agreement(s) shall be null and void and shall be deemed separable from the remaining terms, conditions, covenants and agreements and shall in no way affect the validity of this Agreement or the effect of any such remaining term, condition, covenant or agreement. 8of12 law contrary to which parties may not contract,then such term(s), condition(s), covenant(s) or agreements) shall be null and void and shall be deemed separable from the remaining terms, conditions, covenants and agreements and shall in no way affect the validity of this Agreement or the effect of any such remaining tern, condition, covenant or agreement. 14. Recitals. The recitals set forth at the beginning of this Agreement of any matters or facts shall be conclusive proof of the truthfulness thereof, and the terms and conditions set forth in the recitals, if any, shall be deemed to be a part of the Agreement. 15. Interpretation. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent. This Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or agreement or any portion thereof to be drafted or prepared or in favor of the parry receiving the particular benefit under this Agreement. No rule of strict construction will be applied against any person. This Agreement shall be governed according to the laws of the State of California. 16. Counterparts. This Agreement may be executed in one or more counterparts, by either original signature or transmitted by facsimile transmission, scanned .pdf file transmitted by e-mail attachment, or other similar process, and each executed counterpart,whether original or copy,shall constitute one and the same instrument and shall have the force and effect of an original. 9of12 IN WITNESS WHEREOF,the parties hereto have executed this Agreement effective the day and year first written above. TARGET CORPORATION, BLACKSTONE &. BULLARD, L.P, a a Minnesota Corporation California Limited Partnership By: L A OA,6 MA 1 a-,,,A%49 By: (Print Name) P ter, rat Partner Mabowald (Title) Vice President Target Corporation (Attach Notary Acknowledgements) 10 of 12 i NOTARY ACKNOWLEDGEMENT STATE OF MINNESOTA } ss. COUNTY OF HENNEPIN } On JAAMaON Ze 20� , before me,N E f0SCFes,'1 Notary Public, personally app red LQ.We- 1W&JVWd , who proved to ane on the basis of satisfactory evidence to be the person(/)whose narne(o isla;e subscribed to the within instrument and acknowledged to me that 4IsheAfty executed the same in h�/her/kir authorized capacity(i ), and that by hiilherltl/eir signature(,a�j on the instrument the person($), or the entity upon beha f of which the person() 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. d , a hAZA1.fE ROSE FREEMAN NOTARY puaUC.MNNE90TA My unr�E+Ua.pert.31,20,8 Si,nature CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness, accuracy, or validity of that document. State of California ) County of y On 1 before me, &Ya5qe . rMacq Publy"_ Date Here Insert Name and Title of t e bfficer personally appeared Cc1f! 1 all Names)of Signer{s} who proved to me on the basis of satisfactory evidence to be the person(s) whose name(e) is/are subscribed to the within instrument and acknowledged to me that he/sheAt# executed the same in hislherfEh it 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 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. CAM[ C-13URiV5TINE WITNESS my hand and official seal. Commission # 1973641 a �+ Notary Public-California i 9 ! Z '�,. A nature Orange County Si My Comm- Expires Apr 26,2016 y Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section:is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: _ Signer(s) Other Than Named Above: Capacity(ias) Claimed by Signe (s) Signer's Name: Signer's Name: ❑Corporate Officer -- Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑Partner — ❑Limited ❑ General ❑ Individual ❑Attorney in Fact f❑Individual 0 Attorney in Fact ❑Trustee L] Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑ Other: ❑ Other. Signer Is Representing: Signer Is Representing: � ,�:'+��•:�;��^�acz��=c^s:�e�c.- -�,�c:�c^�<a��c.^�c��e.�=c:�:'�cx 02014 National Notary Association • www.NationalNotary.org - 1-800-US NOTARY(1-800-876-6827) Item#5907 V71 CITY OF FRESNO, - a Municipal Corporation Development &. Resource Management Department Jennifer K. Clark, Director By: (Je i r K. Clark, Director APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Ma Raterman-Doidge Deputy City Attorney Date: 0 //(/1 (Attach Notary Acknowledgments) 11 of 12 �3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document CLERK'S CERTIFICATION State of California } County of Fresno } On February 11, 2016 before me, Marco Martinez-Velasquez, Deputy City Clerk, personally appeared, Jennifer K. Clark, Director, Development and Resource Management Department (DARM) of the City of Fresno, 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. 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 YVONNE SPENCE, CMC City Clerk, City of Fresno i z N9f By __ Gf�Li'�v J I�7`�<'4 Deputy l� EXHIBIT A LEGAL DESCRIPTION OF TARGET TRACT PARCEL A THAT PORTION OF PARCEL 'S'OF PARCEL MAP 84-20, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 42, PAGES 71 AND 72 OF PARCEL MAPS, FRESNO COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL'B'; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 'S', BEING ALSO THE EASTERLY RIGHT-OF-WAY LINE OF NORTH BLACKSTONE AVENUE,NORTH 00°47'15" EAST 67.90 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 89'58'42" EAST 190.23 FEET; THENCE NORTH 00°01'35"WEST 189.91 FEET; THENCE SOUTH 89'58'43" WEST 187.53 FEET TO SAID WESTERLY LINE; THENCE NORTH 00°47'15"EAST 113.21 FEET TO THE SOUTHWEST CORNER OF THAT CERTAIN PORTION OF LAND CONVEYED TO THE CITY OF FRESNO IN DEED RECORDED OCTOBER 12,2006 A5 INSTRUMENT NO. 2006-0217869,OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE EASTERLY BOUNDARY OF SAID LAND SOUTH 89°12'45" EAST 9.50 FEET; THENCE NORTH 00°47'15" EAST 27.27 FEET; THENCE NORTH 44'12'45"WEST 3.54 FEET; THENCE NORTH 00°47'15" EAST 14.61 FEET; THENCE LEAVING SAID EASTERLY BOUNDARY NORTH 89'58'42" EAST 59.48 FEET; THENCE NORTH 00°01'18"WEST 7.62 FEET; THENCE NORTH 89"58'42"EAST 118.81 FEET; THENCE NORTH 00°01'35"WEST 217.02 FEET; THENCE SOUTH 89'58'42" WEST 172.10 FEET TO THE SAID EASTERLY BOUNDARY; THENCE ALONG SAID EASTERLY BOUNDARY NORTH 00"47'15" EAST 35.00 FEET TO THE NORTHERLY BOUNDARY OF SAID PARCEL'B'; THENCE ALONG SAID NORTHERLY BOUNDARY NORTH 89"58'42"EAST 170.24 FEET; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY NORTH 00°47'15" EAST 125.01 FEET TO THE SOUTHERLY RIGHT-OF-WAY LINE OF EAST BULLARD AVENUE,100 FEET WIDE; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 89°58'42" EAST 35.00 FEET; THENCE LEAVING SAID SOUTHERLY RIGHT-OF-WAY LINE,ALONG SAID NORTHERLY BOUNDARY SOUTH 00°47'15"WEST 125.01 FEET; THENCE NORTH 89"5$'42"EAST 245.02 FEET; THENCE NORTH 00"47'15"EAST 125.01 FEET TO SAID SOUTHERLY RIGHT-OF-WAY LINE; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE AND SAID NORTHERLY BOUNDARY NORTH 89058'42" EAST419.97 FEETTO THE NORTHEAST CORNER THEREOF; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL'B"SOUTH 00°47'16"WEST 800.00 FEETTO THE SOUTHEAST CORNER THEREOF; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL'B' SOUTH 89°58'42" WEST 880.23 FEET TO THE POINT OF BEGINNING. CONTAINING 574,000 SQUARE FEET, MORE OR LESS. EXHIBIT B LEGAL DESCRIPTION OUTPARCEL I PARCEL B THAT PORTION OF PARCEL'B' OF PARCEL MAP 84-20, IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 42, PAGES 71 AND 72 OF PARCEL MAPS, FRESNO COUNTY RECORDS,MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID PARCEL'B'DISTANT THEREON NORTH 00°47'15" EAST 371.03 FEET FROM THE 5OUTHWEST CORNER THEREOF,SAID POINT BEING ALSO THE SOUTHWEST CORNER OF THAT CERTAIN PORTION OF LAND CONVEYED TO THE CITY OF FRESNO IN DEED RECORDED OCTOBER 12,2008 AS INSTRUMENT NO. 2006-0217869,OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE EASTERLY BOUNDARY OF SAID LAND SOUTH 89°12'45" EAST 9.50 FEET; THENCE NORTH 00'47'15" EAST 27.27 FEET; THENCE NORTH 44"12'45"WEST 3.54 FEET; THENCE NORTH 00°47'15" EAST 14.61 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID EASTERLY BOUNDARY FORTH 89°58'42" EAST 59.48 FEET; THENCE NORTH 00°01`18"WEST 7.62 FEET; THENCE NORTH 89°58'42"EAST 118.81 FEET; THENCE NORTH 00°01'35"WEST 217.02 FEET; THENCE SOUTH 89'58'42" WEST 172.10 FEET TO THE SAID EASTERLY BOUNDARY; THENCE ALONG SAID EASTERLY BOUNDARY SOUTH 00°47'15" WEST 1.64 FEET; THENCE SOUTH 50'58'55" WEST 3.91 FEET; THENCE SOUTH 00°47'15" WEST 158.58 FEET; THENCE SOUTH 4412'45" EAST 7.07 FEET; THENCE SOUTH 00°47'15" WEST 34.00 FEET; THENCE SOUTH 45'47'15" WEST 7.07 FEET; l� THENCE SOUTH 0047'15"WEST 17.99 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 38,584 SQUARE FEET, MORE OR LESS. LEGAL DESCRIPTION OUTPARCEL 2 PARCELC THAT PORTION OF PARCEL'B' OF PARCEL MAP 84-20, IN THE CITY OF FRESNO,COUNTY OF FRESNO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF RECORDED IN BOOB 42, PAGES 71 AND 72 OF PARCEL MAPS, FRESNO COUNTY RECORDS,MORE PARTICULARLY DESCRIBED AS FOLLOWS; BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID PARCEL 'B' DISTANT THEREON NORTH 00°47'15" EAST 57.90 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE LEAVING SAID WESTERLY LINE NORTH 89°58'42"EAST 190.23 FEET; THENCE NORTH 00"01'35"WEST 189.91 FEET; THENCE SOUTH 89058'43" WEST 187.53 FEET TO SAID WESTERLY LINE; THENCE ALONG SAID WESTERLY LINE SOUTH 00"47'15"WEST 189.92 FEET TO THE POINT OF BEGINNING. CONTAINING 35,870 SQUARE FEET, MORE OR LESS. EXHIBIT"C" SITE PLAN THE ORIGINAL SITE PLAN REFERNCED IN THIS DOCUMENT CAN BE VIEWED IN THE OFFICE OF BLACKSTONE& BULLARD, L.P.,A CALIFORNIA LIMITED PARTNESHIP AT 17671 IRVINE BLVD., STE, 204, TUSTIN, CA 92780; AND TARGET CORPORATION, A MINNESOTA CORPORATION, PROPERTY DEVELOPMENT AT 1000 NICOLLET MALL,TPN-124, MINNEAPOLIS, MN 55403;ATTN: REAL ESTATE PORTFOLIO MANAGEMENT(T-1417 Fresno,CA) EXHIBIT C SITE PLAN TRACT Fy TARGETcm BUILDING 7 L _7 - 41 — e� rr FA ET T�R�G C Tj - 7 Alk rT- 77 I PARCELS CIS T a t 71 Lu 2 rA 14Pj PADW i K BUIGI*NG rBIJIT�ING FARM B PARCEL A F', t X 04 A P) BILACKSTONE -AVE.---- _N OUTPARCELI OUTPARCEL2 NORTH OVERALL SITE PLAN 1