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Home My WebLink AboutT-5029 - Agreement/Covenant - 2/15/2005 (5) 7 'When Recorded Mail To City Clerk City of Fresno 2600 Fresno Street 20030219019 Fresno, Ca 93721-3603 1�J�g12003, NO FEE - Govt. Code 6103 CITY of FRESNO Public Works Department Cl P.W. File No. 10524 .j JAF: 1495 East Sarasota Way L1 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY OFF-SITE STREET FACILITIES FOR TRACT NO. 5029, Phase 1 of Vesting Tentative Map No. 5029 STATEMENT OF COVENANTS Temporary Off-Site Street Facilities Tract No. 5029 Page 2 RECITALS WHEREAS, DC 5029 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 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, a condition of approval for the Final Map of Tract No. 5029 (Phase I of Vesting Tentative Map No. 5029), hereinafter referred to as the "Map," requires the provision and maintenance of temporary off-site street facilities to provide public access between truncated street segments created by the phasing of final maps pursuant to said tentative map until such time that permanent street facilities are available to serve the Map; and. WHEREAS, The Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary off-site street facilities. 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 STATEMENT OF COVENANTS Temporary Off-Site Street Facilities Tract No. 5029 Page 3 this Statement 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 his heirs, successors, and assigns during his ownership thereof. 1. The Covenantor agrees that said Subject Property shall be used as temporary street purposes for the Map. The Covenantor agrees to construct and maintain such temporary street facilities on the Subject Property 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 the Subject Property. The Covenantor shall not restrict public access across the Subject Property during the term of this covenant. 2. The temporary street facilities shall be constructed to conform to the improvement plans prepared at the Covenantor's expense and approved by the City Engineer. The design of the temporary street facilities, including any related improvements and work, shall conform to Public Works standard specifications and shall meet minimum standards for a local street, including turning radiuses, or in conformance with an approved engineered design for the intended use. The work shall be constructed pursuant to a Street Work Permit issued by the Public Works Department. 3. This Statement 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 be privately or publicly owned. 4. 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. The Covenantor hereby releases and agrees to indemnify, defend and save the City of Fresno, its employees and agents harmless from STATEMENT OF COVENANTS Temporary Off-Site Street Facilities Tract No. 5029 Page 4 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 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 Covenantors agents, employees and subcontractors, while engaged in the performance of said work. The Covenantor further agrees that the use for any purpose and by any person of any and all of the temporary street 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 the temporary street facilities and other improvements thereon and therein. 5. The conditions of this Statement are intended to benefit both the Subject Property, 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 agent violate the terms hereof. 6. The foregoing conditions and obligations of this Statement shall remain in full force and effect until such time as the Public Works Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. Such -release will be conditioned on the removal of the temporary street facilities in the manner acceptable to the City Engineer. The Covenantor agrees to reimburse the City for reasonable costs associated with the preparation and recordation of said release. 7. The provisions of this Statement shall be deemed independent and severable STATEMENT OF COVENANTS Temporary Off-Site Street Facilities Tract No. 5029 Page 5 and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability 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 Off-Site Street Facilities Tract No. 5029 Page 6 DATED: 0c ''0dEJZ 28, 2003 CITY OF FRESNO, COVENANTOR a Municipal Corporation JON R. RUIZ, Director DC 5029 L.P. Public Works Department a California Limited Partnership By: Team 5 Properties, Inc. a California Corporation By ZZ as General Partner D Michael T. Kirn, P.E., Assistant Director By: Jerry A. DeYou g, President APPROVED AS TO FORM: HILDA CANTO-MONTOY Acting City Attorn y 71ZBy .. Deputy (Attach Notary Acknowledgment) Dated:08/15/2003 STATE OF CALIFORNIA, COUNTY OF Fresno } S.S. On October 24, 2003 before me, Anna M. Renna a Notary Public in and for said County and State, personally appeared Jerry A. DeYoung — personally known to me ( FOR NOTARY SEAL OR STAMP to be the person() whose name) is/awe-subscribed to the within instrument and acknowledged to me that he/s.l%Aheyexecuted the same in his/herfthei.� authorized capacity(iea), and that by his/her/their– .r"" ANNA M.RENNA signature(b) on the instrument the person(!), or to NOTOMM.LI#1433198 ca ( the entity upon behalf of which the personH FRESNOCOUNTY N acted, executed the instrument. ` MY Comm.Exp.Aug.30,2007 WITN SAmyh anoffi *al eal Signat �.. STATE OF CALIFORNIA, COUNTY OF Fresno } S.S. On October 24, 2003 , before me, Anna M. Renna a Notary Public in and for said County and State, personally appeared Richard J. Audino personally known to me (OF preyed 49 Fige on FOR NOTARY SEAL OR STAMP to be the person(p) whose name(p) is/arc subscribed to the within instrument and acknowledged to me that he/she" executed the same in his/herkheir authorized ca acit ,�" �►. ANNA M.RENNA p y(;es), and that by his/herktreir � COMM.#1433198 N signature(3) on the instrument the person(), or NOTARYPUBLIC-CALIFORNIA ca the entity upon behalf of which the person(A) FRESNO COUNTY N acted, executed the instrument. My Comm.Exp.Aug.30,200? WITNE h d d ficia seal Signatur TE 160 Legal(2-94) This form is furnished by Chicago Title Company CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) On October 30 , 2003 before me, Elvia Sommerville personally appeared Michael T. Kirn, Ass't. Public Works Director personally known to me (or provided to me on the basis of satisfactory evidence) to be the persons(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(s) the person(s), or the entity upon behalf of the CITY OF FRESNO of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK d O By (TL�� DEPUTY LR:Ir(08/15/2003) FT5029TSTREETF.wpd Tract No. 5029 P.W. File No. 10524 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on August 30, 2002 , in the office of the Fresno County Recorder, Document No. 2002-0149095 Official Records of which the Deed of Trust in by and between Deyoung Communities, Inc. , a California Corporation as Trustor Fidelity National Title Company , as Trustee and California Bank & Trust, a California banking corporation , 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 Off-Site Street Facilities for Tract No. 5029. DATED: Oj BENEFICIARY By: CA%VA By: (Attach Notary Acknowledgement)