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Home My WebLink AboutT-5445 - Agreement/Covenant - 8/31/2006 (5) 4 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street 08/38/2886,20060182594 Fresno, Ca 93721-3603 NO FEE-Government Code 6103 CITY OF FRESNO Public Works Department u- Q P.W. File No. 10903 v W U) W J O. STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY STORM DRAINAGE FACILITIES FOR THE FINAL MAPS OF TRACT NO. 5445, PHASE 2 OF VESTING TENTATIVE MAP NO. 5295 AND TRACT NO. 5446, PHASE 3 OF VESTING TENTATIVE MAP NO. 5258 4 Statement of Covenants Temporary Storm Drainage Facilities Tract Nos. 5445 and 5446 Page 2 RECITALS WHEREAS, McMILLIN SUNNYSIDE RANCH, LLC, a Delaware Limited Liability Company, 111 South Johnson, Visalia, California 93291-6115, hereinafter referred to as the "Owner," of the real property situated in the City of Fresno, County of Fresno, State of California, and McMILLIN SUNNYSIDE RANCH, LLC, a Delaware Limited Liability Company, 111 South Johnson,Visalia,California 93291-6115, hereinafter designated and called the"Developer,"shall hereinafter collectively and individually, where applicable, shall be jointly designated and referred to as the "Covenantor," hereinafter referred to as the "Subject Property" and more particularly described in the attached Exhibit "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 Maps of Tract Nos. 5445 and 5446, hereinafter referred to as "map," requires the provision and maintenance of temporary off-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, a covenant entitled a "Statement of Covenants Affecting Land Development for Temporary Storm Drainage Facilities for the Final Maps of Tract No. 5258, Phase 1 of Vesting Tentative Map No.5258 and Tract No.5295, Phase 1 of Vesting Tentative Map No. 5295, recorded July 12, 2005, as Document No. 2005-0154622, Fresno County Records; and WHEREAS, the City of Fresno has also approved the use of the Subject Property for the drainage requirements of the map; and WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary storm drainage facilities. Statement of Covenants Temporary Storm Drainage Facilities Tract Nos. 5445 and 5446 Page 3 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. 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 Statement of Covenants Temporary Storm Drainage Facilities Tract Nos. 5445 and 5446 Page 4 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 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. Statement of Covenants Temporary Storm Drainage Facilities Tract Nos. 5445 and 5446 Page 5 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 Nos. 5445 and 5446 Page 6 DATED: o&ZSzo(e CITY OF FRESNO, COVENANTOR (Owner and Developer): a Municipal Corporation McMILLIN SUNNYSIDE RANCH, LLC, a Delaware Limited Liability Company ^' 6Y, Director M By: McMillin Management Services, LP, Public Works Department a California Limited Partnership, as Manager By: Corky McMillin Construction Services, Inc., as General Partner By Michael T. Kim, Assistant Director By: Bill Walls, Vice President APPROVED AS TO FORM: JAMES C. SANCHEZ By: E2012-It uAA City Attorney Bert Almaguer, Viee President By: �1/ Deputy (Attach Notary Acknowledgments) State of California ) County of Tulare ) On July 27, 2006b efore me J. STURGEON R DATE NAME,TITLE OF OFFICER Personally appeared BILL WALLS AND BERT ALMAGUER NAME(S)OF SIGNER(S) Personally known to me (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 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. WITNESS my hand and official seal. a 7TU J. SRG '!CO1454944NOTARc-CAL OPMaR TULME COUlay Ny Gonm!3�0 Dea 26,2W 0NATLg&OF THE NOTARY Tract Nos. 5445 and 5446 P.W. File No. 10903 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on January 10, 2006 , in the office of the Fresno County Recorder Document No. 2006-0005140 of which the Deed of Trust in by and between: MCMILLIN SUNNYSIDE RANCH, LLC, a Delaware limited liability co. as Trustor, PRLAR, INC , as Trustee, and BANK OF AMERICA, national association , 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 Storm Drainage Facilities for the Final Maps of Tract No. 5445, Phase 2 of Vesting Tentative Map No. 5295 and Tract No. 5446, Phase 3 of Vesting Tentative Map No. 5258. DATED: –7'2- $—oa BENEFICIARY BANK OF AMERICA, national association By: G. V. xpwtz� VP By: /%4t, cue-�hya vQ (Beneficiary to print/type document info, Name, Title and attach Notary Acknowledgment) State of California ) County of San Diego ) On July 28, 2006 , before me, Peggy J. French, Notary Public DATE NAME,TITLE OF OFFICER Personally appeared Ronald V. Montoro and Cinthya Y. Martinez , NAME(S)OF SIGNER(S) Personally known to me (or-prem-to- e on the basis-o-satis€aetrn}* cncc) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that hc/shc/they executed the same in hi-,*=/their authorized capacity(ies), and that by tisftmThheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. PECGY J. Ff2ENCH Cony isdon# 1389W Notary pubik - Californio n ScExr County 110My Comm.Expires Jan 8,2007 SIGNATURE OF THE NOTARY CLERK'S CERTIFICATION State of California) County of Fresno) On August 18, 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared, Michael T. (M.T.)Kirn,Assistant Public Works Director, personally known to me (or 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), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK, CMC a By Deputy Legal Description EXHIBIT "A" That portion of the Southwest Quarter of Section 17,Township 14 South, Range 21 East, Mount Diablo Base and Meridian, according to the Official United States Township Plat Map thereof, is described as follows: Commencing from the East Quarter Corner of said Section 17; thence North 89'47'1 3"West along the center line of said Section 17, a distance of 2120.05 feet; thence South 00°12'47"West, a distance of 104.12 feet to the True Point of Beginning; thence North 89°47'08"West, a distance of 442.22 feet; thence South 45°12'49"West,a distance of 20.57 feet; thence South 00012'47"West, a distance of 38.45 feet to the beginning of a tangent curve concaved to the west,having a radius of 435.00 feet, a radial line from said point bears North 89°47'13"West;thence southerly along said curve through a central angle of 25021'47", an arc distance of 192.56 feet; thence South 89026'20"East, a distance of 510.96 feet; thence North 00057'59"West, a distance of 75.03 feet; thence North 00°33'40"East,a distance of 155.69 feet;thence North 44°35'57"West, a distance of 16.53 feet to the True Point of Beginning. Area Contains 115,188 Square Feet(2.64 acres), more or less. EXHIBIT "B" CURVE TABLE CURVE RADIUS LENGTH CHORD DELTA NORTHEAST CORNER OF SECTION 17, g T. 14 S R. 21 E, M.D.B. M. �,z C1 435.00' 192.56' 190.99' 25'21 Q wm CENTER QUARTER CORNER OF SECTION PCir'NT G1COQaIENT EAST QUARTER CORNER OF SECTIc. °O� 17, T. 14 S., R. 21 E, MABA M. 17, T. 14 S., R. 21 E., M.D.B.& M. I Q o y, 0 N 89'47'13" W _ _ 2733.64' N EAST GHURGH AVENUE (ALIGNMENT) N 89'47'13" W _ 2120.05' J TRUE pmr A-,raw o 2 N 89'47'08` W 442.22' r I � 1 O I S1 � Uj N 1 w : o Igv SOUTHEAST CORNER L S 89'26'200 E 510.96' _ OF SECTION 17,T. 14 S., 0 R. 21 E. MABA M. 15ASIS 01' BEARIN681 — — — THE EAST LINE OF THE NORTHEAST QUARTER OF SECTION 17 EAST .ENSEN AVENUE L14 S, R.21 E, M.D.B. & M. WAS TAKEN TO BE N ODW58l W. LINE TABLE PER TRACT NO. 5135, RECORDED IN VOLUME 69 OF PLATS AT LINE BEARING LENGTH PAGES 21 THROUGH 25, FRESNO COUNTY RECORDS. L1 S00'12'47"W 104.12' RP(AIRD OAR L2 N44'35'57"W 16.53' WALLIN SUNNYSIDE RANCH, LLC., L3 N00"57'59"W 75.03' 111 SOUTH JOHNSON L4 S00'12'47'W 1 38.45' VISALA. CA 93291-6115 L5 S4512'49"W 1 20.57' A.10.N. - 481-040-23 RADIAL LINE TABLE IRADIALI BEARING ® INDICATES AREA TO BE DEEDED LANA R1 N64'25'26"W FOR TEMPORARY BASIN PURPOSES. AREA: 115,188 SF., 264 ACRES �`�E'� C / <"o REVISIONS PREPARED BY: N0. 6619 ■=e INGEL S- BRAUN . 12-31-2007 � ■® & ASSOCIATES CIVIL ENGINEERING AND LAND SURVEYING OF CN•� ®® 875 WEST ASHCAN AVENUE, SUITE 102 CLOVIS, CALIFORNIA 93612 5Y:KELLt:R -05!16/05 (559) 291 - 0427 15A GA;r1LE; 05045BIB C:\My Documents 03043E15.dw 7/24/2006 11:48:24 AM PST REF & REV CITY OF FRESNO PROD. ID. FUND NO. PW FILE 10746DEPARTMENT OF PIUBUCCWORKS OORG.NO. PLAT NO.. 308565 T-5258 TEMPORARY BASIN EASEMENT DR. BY: JAK SHEET NO. 1 2005-XX of 1 SHEETS A PORTION OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE 21 EAST, cm.BY: M.D.B. & M., TO BE DEEDED TO THE CITY OF FRESNO FOR DATE 03/16/05 TEMPORARY STORM BASIN PURPOSES. I SCALE; AS SHOWN 15—A-7797