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HomeMy WebLinkAboutT-5511 - Agreement/Covenant - 12/5/2007 (9) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 11 I Z01 2007,Z0070Z�9033 CITY OF FRESNO Public Works Department LL Z O U LU a W J O. STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY ON-SITE STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 5511 - - - - - - - - - - - - - - Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5511 Page 2 RECITALS WHEREAS, BEAZER HOMES HOLDINGS CORP., a Delaware Corporation, hereinafter designated and 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: Lot 8, 9, 10 and Outlot "B", of Tract No. 5511 according to the map thereof recorded on &V,&n ?!j 20Q7 in Volume 230 of Plats at Pages 13 thM f 7 Fresno County Records; 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 forthe Final Map of Tract No.5511, 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, hereinafter referred to as "master plan facilities," are available to serve the Map; and WHEREAS, said Outlot B is required to be dedicated to the City of Fresno for open space purposes subject to City acceptance of developer installed open space improvements; and WHEREAS, Covenantor proposes to situate and construct such temporary storm drainage facilities on said Lot 8 and Outlot B; and WHEREAS, Covenantor stipulates that the master plan facilities to serve the Map will be completed within 18-months of the approval of the Map by the City; and WHEREAS, upon completion of such master planned facilities the temporary storm drainage facilities will no longer be required; 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 No. 5511 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. The Covenantor agrees to construct and maintain said temporary storm drainage facilities on said Lot 8 and Outlot B for a period of 18-months from the date of approval of the Map by the City or prior to the issuance of the 190`h building permit for lots of the Map, whichever first occurs, 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 Planning and Development Department. Subject to the terms of this Statement, the Covenantor shall construct and maintain a replacement temporary storm drainage facility on said Lots 9 and 10 prior to abandoning the temporary storm drainage facilities on said Lot 8 and Oultot B. In addition to abandoning the temporary storm drainage facilities in manner set forth herein, Covenantor shall develop and maintain said Outlot B for open space purposes until such time Outlot B is duly improved and accepted in fee title by the City. Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5511 Page 4 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 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, corripaction 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 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5511 Page 5 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 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. 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. 5511 Page 6 DATED: /Ob.;to T CITY OF FRESNO, COVENANTOR a Municipal Corporation BEAZER HOMES HOLDINGS CORP., a Delaware Corporation Public Works Department Mez,f z By: �. By: -6e Patrick Wiemiller, Director Walter Diamond, Executive Vice President & General Manager APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: , John W. Fox Deputy City Attorney Date: ���/ /�s06L (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fne:.sn o On OC4oher 7 before me, 450-E- L--or /Vo�ar ' "Mc-- Date f,, Name and a of Officer(e.g.,"Jane/Doe,Notary Public") personally appeared VJOeY-o/a-rl-L r Name(s)of Signer(s) alae sr onally 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 ROMA E. LONG within instrument and acknowledged to me that Commission# 1631297 -� Notary Public-California he/she/they executed the same in.his/her/their authorized Fresno County - capacity(ies), and that by fits/her/their signature(s) on the MVComm.Expires Dec 18,2009 instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature'of NPublic OPTIONAL C Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: — ❑ Individual ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑Attorney in Fact • Ll Trustee ❑Trustee Top of thumb here Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2006 National Notary Association•9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827 CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO) On October 25, 2007, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno, personally appeared, Scott L. Mozier, 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 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. REBECCA E. KLISCH CITY CLERK, CMC 0 By Deputy