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HomeMy WebLinkAboutT-5482 - Agreement/Covenant - 4/22/2010 (5) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 0412212010,20100051586 NO FEE —Government Code 6103 LC CITY OF FRESNO Q Public Works Department LL z P.W. File No. 11122 V W GI! a w J STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY ON-SITE STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 5482 Statement of Covenants Temporary On-site Storm Drainage Facilities Tract No. 5482 Page 2 RECITALS WHEREAS, K. HOVNANIAN AT FRESNO, LLC, A CALIFORNIA 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: Lots 7, 8, and 9 of Tract No. 5482 according to the map thereof recorded on April 2& 201 in Volume of Plats at Page(s) Shy., q5 t &16, Fresno County Records; and WHEREAS, the Covenantor hereby warrants that any and all parties having record 'ti'tle interest in the Subject Propertywhich 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 Vesting Tentative Map No.5482, 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 Statement of Covenants Temporary On-site Storm Drainage Facilities Tract No. 5482 Page 3 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 said temporary storm drainage facilities on 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 "Planning and Development Department of the City of Fresno" (Planning and Development Department). The design of the temporary ponding basin, including fencing, shall conform to the "Public Works Department of the City of Fresno" (Public Works Department) standard specifications. The work shall be constructed pursuant to a grading permit issued by the Planning and Development Department. 3. The Public Works Department Director shall determine when such temporary storm drainage facilities are no longer required. Within sixty (60) calendar days after the Public Works Department 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 Planning and Development Department, to obtain a grading permit from the Planning and 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, Statement of Covenants Temporary On-site Storm Drainage Facilities Tract No. 5482 Page 4 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 is 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, except to the extent arising out of the gross negligence or willful misconduct of the City of Fresno. The Covenantor hereby releases and agrees to indemnify,defend and save the City of Fresno, 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 and liability, howsoever same may be caused, resulting directly or indirectly from 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, 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 of Fresno. 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. 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 Statement of Covenants Temporary On-site Storm Drainage Facilities Tract No. 5482 Page 5 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 representative or 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 Planning and 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. In the event that litigation is instituted to enforce or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees,costs and litigation expenses. 9. 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 On-site Storm Drainage Facilities Tract No. 5482 Page 6 DATED: �r2G'J / 16 CITY OF FRESNO, COVENANTOR: a Municipal Corporation K. HOVNANIAN AT FRESNO, LLC, Public Works Department a California Limited Liability Company Patrick Wiemiller, Director By: K. Hovnanian Development of California, Inc. A California Corporation, Its Sole Member ByAftg --- - Scott Mozier, P.E., Assidant Director By' Richard ares.,.,.', Vice President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: Shyin uty Ci A rney (Attach Notary Acknowledgments) Z Date: 2�, ,/ State of California County of Sacramento On January 4, 2010 before me, Terrie Lackner, Notary Public personally appeared Richard J Balestreri 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/she/they executed the same in his/hey heir authorized capacity(+es), 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. WITNESS my hand and official seal. TEARiE LACKfiEA Cort►mf=tion#� tf�22fi37 Notary Public•California surnffonto County Comm-EOM X18 12 Signature I-A (Seal) e CLERK'S CERTIFICATION State of California ) County of Fresno ) On March 19, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier P.E., Assistant Director, Public Works Department, 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. WITNESS my hand and official seal REBECCA E. KLISCH, CMC City Clerk, City of Fresno By Deputy ti41 *��Ea a C1 ♦S SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on October 27, 2008, in the office of the Fresno County Recorder as Document No. 2008-0149388 of which the Deed of Trust is by and between: K. Hovnanian at Fresno, LLC, successor-in-interest to K. Hovnanian Communities, Inc., as Trustor, Chicago Title Insurance Company, as Trustee, and Wilmington Trust Company, successor-in-interest to Deutsche Bank National Trust Company, pursuant to that certain Assignment recorded on October 9, 2009, as Instrument No. 2009-0140684, in the Office of the Fresno County Recorder, 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 On-Site Storm Drainage Facilities for the Final Map of Tract No. 5482. DATED:_ " 20 BENEFICIARY WILMINGTON TRUST COMPANY By: Name: Title: I. c--=� 1 /4 << 4 4eay (Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment) Drainage.2d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: 'r ebyuor I CERTIFY that on the day of J , O10, before me, the undersigned, personally appeared PATRICK HEALY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. LE M.WALKER '�,�A60"" ssoc�,A Notary Public-State of Delaware _ y EXPIRES - My Cortim. Expires March 31,2010 = .MARCH 31,2010 _ Y, rgRypue\-'�'Q�`. SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 9, 2009, in the office of the Fresno County Recorder as Document No. 2009-0017031 of which the Deed of Trust Is by and between: K. Hovnanian at Fresno, LLC, successor-in-interest to K. Hovnanian Communities, Inc, as Trustor, Chicago Title Insurance Company, as Trustee,and Wilmington Trust Company,$" NatH)ea+Tfus paRy�pwsaap,t-te4l}at-eettai+i-Ass'@ffmefA-reeer-ted-oln-Oeteber-972969;-as -+nstrcurneetNe-2009-E1-140684,in te-O#iee-e# e-Fresae-Goo4y-R-ew4w,, as Beneficia ,: y�, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to tz�e ' foregoing Statement of Covenants Affecting Land Development forTemporary On-Site Storm Drainage Facilities for the Final Map of Tract No. 5482 DATED: , 20 BENEFICIARY WILMINGTON TRUST COMPANY By: //Z4 ' Name: Patrick J. Healy Title: Vice Presiduff 14K A A-i/-«k �..cy (Beneficiary to print/type document information, Name,Title and attach Notary Acknowledgment) Drainage.3d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: I CERTIFY that on the Z day of January, 2010, before me, the undersigned, personally appeared PATRICK HEALY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. W ALKFl?,' LEAH M:WALKER Notary Public-State of Delaware . � ^y COMM- Fxni;es��larrh '3� 2010 TE Of- '' flf111 ``