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Home My WebLink AboutT-5123 - Agreement/Covenant - 8/11/2006 (4) - WHEN RECORDED MAIL TO: IIII III III�III II III III I II III III IIII��f�� FRESNO County Recorder Robert C, Werner City Clerk City of Fresno DOC— 2003_0205987 2600 Fresno Street Acct I-Financial Title company Friday,Fresno, Ca 93721-3603 v, AUG 29, 2003 08:00:00 (C) FRE $0.00 Tt 1 Pd $0.00 Nbr-0001231256 NO FEE-Govemment.Code 6103 rgr/R8/2-10 CITY OF FRESNO Public Works Department P.W. File No. 10533 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR INTERIOR TEMPORARY STORM DRAINAGE FACILITIES FOR TRACT NO. 5123 RECITALS WHEREAS, Synergy-Golden Dawn, LLC, a Califomia Limited Liability Company, 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 and by this reference made a part of this Statement of Covenants 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 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5123 Page 2 WHEREAS, a condition of approval for the Final Map of Tract No. 5123, hereinafter referred to as "map," 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 map; and WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary storm drainage 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 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 the Subject Property 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 the Subject Property. Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5123 Page 3 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 Development Department. The design of the temporary ponding basin, including fencing, shall conform to Public Works standard specifications. The work shall be constructed pursuant to a grading permit issued by the Development Department 3. The Public Works Director shall determine when such temporary storm drainage facilities are no longer required. Within sixty (60) calendar days after the Public Works 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 Development Department, to obtain a grading permit from the 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 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 be 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. The Covenantor hereby releases and agrees to indemnify, defend and save the City of Fresno 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 in and upon the street rights-of-way and said Subject Property and upon Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5123 Page 4 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. The Covenantor further agrees that the use for any purpose and by any 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, 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. 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 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. 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 Storm Drainage Facilities Tract No. 5123 Page 5 DATED: CITY OF FRESNO, a Municipal Corporation COVENANTOR Synergy-Golden Dawn,LLC, a California Limited Liability Company JON R. RUIZ , DIRECTOR Public Works Department E�yy: _ �— By: map' : Managing Member ,}.; SHUA E. SABAH MICHAEL T. KIRN, Assistant Director Public Works Department APPROVED AS TO FORM: HILDA CANT -MON City Attom By Deputy (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On JULY 10, 2003 before me,F. TAMASHIRO DATE NAME,TITLE OF OFFICER" personally appeared JOSHUA E. SABAH NAME(S) OF SIGNER(S) 0 Personally known tome 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 acknowledge to me that he/she/they executed the same in his/her/their authorized F.TAWSHIRO capacity(ies), and that by his/her/their signature(s)on the Commission 0 1360230 instrument the person(s), or the entity upon behalf o Notary Public-California which the person(s)acted,executed the instrument. Fresno County MY Comm.Boms Jun 16.2006 WITNESS my hand and official seal SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNED DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) DATE OF DOCUMENT ❑ GUARDIAN/CONSERVATOR 0 OTHER: MANAGING MEMBER- SIGNER(S)OTHER THAN NAMED ABOVE SIGNER IS REPRESENTING: CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On August 19, 2003, before me, Elvia Sommerville, Deputy City Clerk,personally appeared, Michael T. Kirn,Assist. Public Works Director, known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) 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 City Seal. REBECCA E. KL ISCH CITY CLERK v 6 BY Deputy Tract No. 5123 P.W. File No. 10533 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 26, 1999 as Document No. 1999-0030821 in the office of the Fresno County Recorder of which the Deed of Trust in, by and between TRUSTOR: Synergy-Golden Dawn LLC, a California Limited Liability Company, and TRUSTEE: Chicago Title Company, a California Corporation, and BENEFICIARY: Golden Dawn-Fresno, L.P., a California Limited Partnership, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants (Tract No. 5123). DATED: 3.1 JL 10 , 2003 BENEFICIARY: Golden Dawn-Fresno, L.P., a California limited partnership By: HHP/MS #1 GP, L.P., a California limited partnership General Partner By: Hearthstone, Inc. a California corpora ' n General Partner By: T y T.`�C er enior Vice President (Beneficiary to Type Names,Titles&Attach Notary Acknowledgments) Document: Subordination to Statement of Covenants Affecting Land Development for Interior Temporary Storm Drainage Facilities—Tract 5123 Golden Dawn-Fresno, L.P. State of California ) ) ss. County of San Francisco ) On July 10, 2003, before me, Angie Wong, Notary Public, personally appeared TRACY T. CARVER, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. NGIEiWONG COMMcNOTARY PUBLIC•CALIFORNIA C) G CITY 6 COUNTY OF SAN FRANCISCO (� �o COMM.EXP.OCT.13,2004 -A Ivy (Seal) Notary's Signature f LEGAL DESCRIPTION OF TEMPORARY PONDING BASIN EXHIBIT "A" THAT PORTION OF THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHWESTERLY CORNER OF LOT "74" OF TRACT No. 5123, ACCORDING TO THE MAP THEREOF RECORDED IN VOLUMEW,PAGES L,qlr, &i OF PLATS, FRESNO COUNTY RECORDS; THENCE SOUTH 89°52'27" WEST, A DISTANCE OF 156.24 FEET; THENCE SOUTH 00'16'33" EAST, A DISTANCE OF 56.00 FEET; THENCE NORTH 89°52'27" WEST,A DISTANCE OF 168.88 FEET; THENCE NORTH 00016'33" WEST, A DISTANCE OF 56.00 FEET, TO THE POINT OF BEGINNING. y,, . 1 F:\2002\02-240\Word Docs\02-2401d-eas.doc