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Home My WebLink AboutT-5531 - Agreement/Covenant - 2/5/2015 (7) WHEN RECORDED MAIL TO: City Clerk City of Fresno @Z/@5/Z@15,2015@@119@9 2600 Fresno Street Fresno, CA 93721-3603 NO FEE -Government Code 6103 CITY OF FRESNO Public Works Department P.W. File No. 11072 O U- Z O 0 W Cn STATEMENT OF COVENANTS AFFECTING LAND w CL DEVELOPMENT FOR TEMPORARY STREET FACILITIES FOR THE FINAL MAP OF TRACT NO. 5531 , PHASE 1 OF VESTING TENTATIVE MAP NO. 5531 Statement of Covenants for Temporary Street Facilities Tract No. 5531 Page 2 RECITALS WHEREAS, CENTEX HOMES, A Nevada General 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 as: Outlot D of the Final Map of Tract No. 5531 according to the map thereof recorded on { '.?_F � _ in Volume `- of Plats at Page(s) G? 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 for the Final Map of Tract No. 5531, hereinafter referred to as the "Map," requires the provision and maintenance of temporary on-site street facilities to provide a public turn-a-round on the Subject Property at the east end of East Erin Avenue until such time that permanent street facilities are made available; and WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary on-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 this Statement shall run with the Subject Property and shall be binding upon and inure to the benefit Statement of Covenants for Temporary Street Facilities Tract No. 5531 Page 3 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 more particularly described on Exhibit "A" and shown on Exhibit "B" shall be used for temporary street purposes until the City releases the Subject Property from such use. 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 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. 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, it's employees and agents 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, Statement of Covenants for Temporary Street Facilities Tract No. 5531 Page 4 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 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 of 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. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Statement of Covenant, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. For the purposes of this Statement of Covenant, "attorneys' fees" and "legal expenses" include, without limitation, paralegals' fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses, and all other expenses incurred by the prevailing party's attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation, whether or not otherwise recoverable as "attorneys' fees" or as "costs" under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys' fees. 7. The waiver by either party of a breach by the other of any provision of this Statement of Covenant shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Statement of Covenant. No provisions of this Statement of Covenant may be waived unless in writing and signed by all parties to this Statement of Covenants for Temporary Street Facilities Tract No. 5531 Page 5 Covenant. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 8. 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. 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 for Temporary Street Facilities Tract No. 5531 Page 6 DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation CENTEX HOMES, Public Works Department A Nevada General Partnership Scott Mozier, P.E., Director f By: By: Andrew J. velli, P.E., Assistant Director r !`a.-�fr_n[.�1�J1.��.f'7i.iricn_ Gregory S. Van Dam, Vice President of Land Northern California Division APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: (Attach Notary Acknowledgment) ryRaterman-Doidge Deputy City Attorney Date: L�z 17z2 ACKNOWLEDGEMENT STATE OF CALIFORNIA ) )SS. COUNTY OF PLACER ) On November 12 _, 2014;before me, Chris A. Downum Notary Public, personally appeared GREGORY S.VAN DAM who proved to me on the basis of satisfactory evidence to be the person)whose name isfars-subscribed to the within instrument and acknowledged to me that (he*may executed the same in ,Sl er�t�€eir authorized capacity(ies, and that b hir a#their signature.4 y on the instrument the person(C or 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. CHRIS A. DOWNUM Commission #2081468 a ++ Notary Public-California z Placer County D M Comm.Ex fres Oct 10,2018 Notary Seal OPTIONAL SECTION Title of Document Date of Document No.of Pages Other signature(s)not acknowledged CLERK'S CERTIFICATION State of California) County of Fresno ) On December 31, 2014, before me, Cindy Bruer, Deputy City Clerk, personally appeared Andrew J. Benelli, Assistant Public Works Director of the City of Fresno who 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), acted, executed the instrument. I certify under PENALTY OR PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. YVONNE SPENCE. CMC CITY CLERK, City of Fresno �y Q F FR Deputy y y.v EXHIBIT "A" LEGAL DESCRIPTION That portion of the Northeast quarter of Section 15, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, in the City of Fresno, County of Fresno, State of California, described as follows: COMMENCING at the Northeast corner of said Section 15; thence South 89°56'48"West, along the North line of said Section 15, a distance of 1326.68 feet; thence South 00'03'12"East, a distance of 93.00 feet to the TRUE POINT OF BEGINNING; Thence, continuing, South 00'03'12" East, a distance of 36.00 feet to the beginning of a 50.00 foot radius non-tangent curve, concave Southwesterly, a radial to said beginning bears North 00'03'12"West; thence Southeasterly, along said curve, through a central angle of 40'55'34", an arc distance of 35.71 feet to the beginning of a 40.00 foot radius reverse curve, concave Westerly, a radial to said beginning bears South 40°52'22"West; thence Easterly, Northerly, and Westerly, along said curve, through a central angle of 261°51'08", an are distance of 182.81 feet to the beginning of a 50.00 foot radius reverse curve, concave Northwesterly, a radial to said beginning bears South 40°58'46"East; thence Southwesterly, along said curve, through a central angle of 40°55'34", an arc distance of 35.71 feet to the TRUE POINT OF BEGINNING. Containing 5,880 square feet, more or less. APN: 316-160-65 Page 1 of 1 Off-HBIT _ " B " S 89'56'48" W 1326.68' NORTH LINE OF THE NORTHEAST QUARTER OF SECTION 15, TOWNSHIP 14 SOUTH, RANGE 21 POINT OF COMMENCEMENT. NORTHEAST EAST, MOUNT DIABLO BASE AND MERIDIAN. CORNER OF SECTION 5, TO'NINS'HiP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN. NORTHERLY PROLONGATION OF THE WEST LINE OF OUTLOT D OF PROPOSED TRACT No. 5531. ® INDICATES AREA TO BE DEEDED TO THE CITY OF FRESNO FOR TEMPORARY TURN-AROUND EASEMENT PURPOSES. XX INDICATES LOT OF PROPOSED TRACT No. 5531. AREA: 5,880 SQUARE FEET +/- Co OWNER: CENTEX HOMES APNs: 316-160-65 0 0 N w OUTLOT D N 0 s o tea• SCALE: 1" = 60' TRUE POINT OUTLOT A 'OF RFGINNING- k L�.5yy�0 i. R - 50 a4 c n D EAST o o E- 00 .Q � ERIN O r AVENUE ti a m R = so 0o QNp,L L.ANO I "° � PRS J. p 5q Q rr 0 o< Y 0- P.L.S. 5277 ;U 0 0 0' 20' 40' 60' COUTLOT D a 'F�� _ F O pA- _ 05-036 / 5531 Ref. & Rev. CITY OF FRESNO Fund No.: - PW File No: DEPARTMENT OF PUBLIC WORKS Org. No.: - Plot No: —_-- PORTION OF THE NORTHEAST QUARTER OF SECTION 15, Dr.B y GMR SHEET NO. 1 T _ TOWNSHIP 14 SOUTH, RANGE 21 EAST, MOUNT DIABLO BASE Ck.By: OF 1 SHEETS AND MERIDIAN TO BE DEEDED TO THE CITY OF FRESNO FOR A Date: 11-6-2014 2007 TEMPORARY TURN—AROUND EASEMENT. Scale: 1" = 20' 15—A