HomeMy WebLinkAboutT-5597 - Agreement/Covenant - 12/24/2012 (5) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street 2��20�84304
Fresno, Ca 93721-3603
NO FEE—Government Code 6103
DC
CITY OF FRESNO
p Public Works Department
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a P.W. File No. 11485
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STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
FOR TEMPORARY STORM DRAINAGE FACILITIES FOR THE
FINAL MAP OF TRACT NO. 5597, PHASE 1 OF VESTING
TENTATIVE MAP NO. 5597
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5597
Page 2
RECITALS
WHEREAS, GRANVILLE AT BARSTOW, INC., A California Corporation , 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 Propert,/' and more
particularly described 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,
WHEREAS, a condition of approval for Vesting Tentative Map No. 5597, 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("Cit,/')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 of
Covenant 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, more particularly described in the
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5597
Page 3
attached Exhibit"A"and shown on Exhibit"B"shall be used for temporary storm drainage facilities
purposes until the City releases the Subject Property from such use. The Covenantor agrees to
construct and maintain said temporary storm drainage facilities; and grants to the City 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 Development and
Resource Management Department of the City of Fresno(Development and Resource Management
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
and Drawings. The work shall be constructed pursuant to a grading permit issued by the
Development and Resource Management Department.
3. The Covenantor is responsible to confirm the availability of permanent storm
drainage service with the Fresno Metropolitan Flood Control District (FMFCD) for the Subject
Property. Upon confirming permanent storm drainage service for the map is available, the
Covenantor shall request the Public Works Director to determine when the temporary storm
drainage facilities are no longer necessary. Upon receiving such request,the Public Works Director
will determine if the temporary storm drainage facilities are no longer required. The Public Works
Director, upon determining the temporary storm drainage facilities are no longer required,shall issue
a written notice for abandonment to the Covenantor. Such notice will state the commencement date
for the abandonment of the temporary storm drainage facilities. The abandonment of the temporary
storm drainage facilities may include, but is not limited to, demolition and disposal of certain
structures, pipes, fencing, backfilling, compaction and grading in accordance with said approved
grading plan; compaction reports, provided at the Covenantor's expense, shall be required for
backfilled areas. Covenantor, in accordance with grading plans (and other improvement plans as
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5597
Page 4
may be necessary), prepared at the Covenantor's expense and approved by the City(Public Works
Department and/or the Development and Resource Management Department as applicable), shall
obtain permits (grading permit and/or street work permit as applicable) from the City to commence
and complete the abandonment of the temporary storm drainage facilities.The date of completion of
the abandonment work shall be the date the grading permit is finalized by the Development and
Resource Management Department.
4. This Statement of Covenant shall in no way be construed as a grant by the City 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 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 of Covenant, or any part thereof, except to the extent arising out of the gross negligence
or willful misconduct of the City. The Covenantor hereby releases and agrees to indemnify, defend
and save the City, 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 of Covenant, 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. 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
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5597
Page 5
and exclusive risk of the Covenantor at all times prior to the release by the City of the temporary
storm drainage facilities and other improvements thereon and therein.
6. The conditions of this Statement of Covenant are intended to benefit both the Subject
Property, the public and public properties. Accordingly, it is agreed the City shall have the right to
enforce this Statement of Covenant 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 of Covenant 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 and Resource Management
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.
S. 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 parry 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.
9. 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
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5597
Page 6
Covenant may be waived unless in writing and signed by all parties to this Covenant. Waiver of any
one provision herein shall not be deemed to be a waiver of any other provision herein..
lo. The provisions of this Statement of Covenant 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 of Covenant so requires, in interpreting this Statement of Covenant, 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. 5597
Page 7 n
DATED: ,j%eCm7, 13 2o1,,->--
CITY OF FRESNO, COVENANTOR:
a Municipal Corporation
GRANVILLE AT BARSTOW, INC.,
Public Works Department A California Corporation
Patrick Wiemiller, Director
By:
Scott Mozier, P.E., AssistAt Director Darius Assemi, Senior Vice President
APPROVED AS TO FORM:
FRANCINE KANNE
Interim City Attorney
By:
Talia Kolluri- arbick (Attach Notary Acknowledgments)
Deputy City Attorney
Date: Z 3 Z
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On Decernber 14, 2012, before me, Stacey Woo, 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 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
�� FAES
By
Dep u o_ 1M1r
u�<rtn a=°
-CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CML Gane 9 1189
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State of California
County of
On1 l r� before me,
r to TTT ��. II `rle. Irt
rrs �1Va,�n�e_antl rrdle 01 the 015ce
personally appeared !/I � , (
Name(s)of Signeiis)
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r
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 ca acit les and that b
_ APRILCELIC ESTE-CALIFORNIAhis/her/their signature(s) on he instrument the
NO7ARV PUBLIC-CALIFR �
CO ON#1986538
FRESNO
r
FRESNO COUNTY peson(s), or the entity upon behalf of which the
My Comm,Exp,July 29,2016 J 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.
r
WITNESS my hand and official seal.
Signature: J
Place Notary Seal Above Sigriatufe of Notary Public
OPTIONAL
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: �-
I Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
Corporate Officer — Title(s). Corporate Officer — Title(s):
❑ Individual 1=! Individual
vlalcml
❑ Partner — ❑Limited ❑General Top of thL.mb here El Partner — ❑Limited 0 General7po 'o'nere
L1 Attorney in Fact C Attorney in Fact
C1 Trustee L Trustee
❑ Guardian or Conservator -Guardian or Conservator
17 Other: 7 Other:
Signer Is Representing: Signer Is Representing:
9D 2010 National Notary Association•National Notary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on September, 21, 2012, in the office of the Fresno County Recorder as Document No.
2012-0135530 of which the Deed of Trust in by and between: Granville at Barstow, Inc., a
California Corporation as Trustor, First American Title Company, as Trustee, and Housing
Capital Company, a Minnesota Partnership, 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 Map of Tract
No. 5597, Phase 1 of Vesting Tentative Map No. 5597.
DATED: 1 Z 1 y �� Z
BENEFICIARY
U.S. Bank National Association
Successor in interest to Housing Capital Company,
A Minnesota Partnership
By: t� C�
Thomas G. Walker, Senior Vice President
(Beneficiary to prinVtype document
information, Name, Title and attach Notary
Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CnML CODE I IISO
State of California
County of rf cruo C)
On n'' ' before me, �tr , ��i; 1�V�i� 1 ��� )!C
Date Y •Here insert Name and Title of the Officer
personally appearedQ :�t;'
� I Na (s)of Signer(s
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.
APRIL CELESTE GARCIA
W •tl" F�� NOTARY PUBLIC•CALIFORNIA �
COMMISSION#1988538 F.' 1 certify under PENALTY OF PERJURY under the
FRESNO COUNTY laws of the State of California that the foregoing
My Comm,Exp.July 29,2018
4 paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _ •� -
Place Notary Seal Above Signature of Notary Public
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:
a
Capacity(ies) Claimed by Signer(s) i}
Signer's Name: Signer's Name:
❑ Corporate Officer — Title(s): CI Corporate Officer — Title(s):
Y
❑ Individual ❑ Individual
❑ Partner —❑Limited ❑General Top of thumb here ❑ Partner — ❑ Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
' L L AA4-.LYJ< Yy4
0 2010 National Notary Association•NalionalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
Exhibit A
Legal Description
Tract 5597
Temporary Ponding Basin
That portion of Outlot B of the Final Map of Tract No. 5597, recorded in Volume S'. of
Plats at pages jck_ and (A, Fresno County Records, and that portion of the
Northeast Quarter of Section 8, Township 13 South, Range 19 East, Mount Diablo Base
and Meridian, described as follows:
BEGINNING at a the Northeast corner of Outlot A of said Tract No. 5597; thence South
72022'46" East, along the boundary of said Tract No. 5597, a distance of 60.00 feet;
thence Northeasterly along a non-tangent curve, concave to the Southeast, whose
radius point bears South 72022'46" East, having a radius of 470.00 feet, through a
central angle of 7013'47", a distance of 59.31 feet; thence Northeasterly along a
reverse curve, concave to the Northwest, having a radius of 530.00 feet, through a
central angle of 24051'23", a distance of 229.93 feet; thence North 0000'22" West, a
distance of 448.80 feet; thence South 89059'38" West, a distance of 60.00 feet; thence
South 0000'22" East, a distance of 448.80 feet; thence Southwesterly along a tangent
curve, concave to the Northv est, having a radius of 470.00 feet, through a central angle
of 24051'23", a distance of 203.90 feet; thence Southwesterly along a reverse curve,
concave to the Southeast, having a radius of 530.00 feet, through a central angle of
7013'47", a distance of 66.88 feet to the Point of Beginning.
co
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w . 26996 m
Exp;res
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EXHIBIT "B"
S 89'59'38" W
60.00'
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60` 1� a 07 13'47* �2 A = 24'51'23'
S
POINT OF BEGINNING 6p.U�;{�
k, R® 470.00' R= 530.00'
2�2 46 L= 59.31' L= 229.93'
OUTLOT A
24'51'23" 07*13'47"
R= 470.00' R= 530.00'
z OUR.DT 8 L— 203.90' L— 66.88'
MEST w9t9 11' Alfie eA
THE CENTER 1/4 CORNER
�-OF SEC. 8 T 13 S, R 19 E.
M.D.B. & M. C.R.#7058 RECORD OWNER: PREPARED BY;
--1 HATCHED AREA DEPICTS TEMPORARY A.P.N. 505-040-13 GARY GIANNETfA
- PONDING BASIN GRANVILLE AT BARS-MW, INC. 1119 "S" STREET
1396 W. HERNDON AVE STE 101 FRESNO, CA. 93721
AREA = 43,728 SQ. FT. FRESNO, CA. 93711 (559) 264-3590
(559) 436-0900
REF. & REV. CITY OF FRESNO FUND D.
FUND NO. ____
ORG. N0. ----
A PORTION OF THE NORTHEAST QUARTER OF SECTION 8, T 13 S, DR. BY: HYD SHEET NO. 1
R 19 E. M.D.B. & M. FOR: CH BY:
OF 1 SHEET
DATE: 10/22/12
TEMPORARY PONDING BASIN SCALE: AS NOTED