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Home My WebLink AboutT-5728 - Agreement/Covenant - 7/8/2008 (4) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 nein^ wnnn wnnnnnw�n�w ■fir NO FEE -Government Code 6103 0 CITY OF FRESNO Z Public Works Department O 0 W a W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY ON-SITE STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 5728, PHASE 2 OF VESTING TENTATIVE MAP NO. 5316/UGM Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5728 Page 2 RECITALS WHEREAS, CENTEX HOMES, a Nevada General Partnership, 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: Lots 32 and 33, of Tract No. 5728, Phase 2 of Vesting Tentative Map No. 5316/UGM according to the map thereof recorded on in Volume 20 of Plats at Pages 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. 5728, 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, Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5728 Page 3 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 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. 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. 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 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, 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, orowned by another, whether such land be privately or publicly owned. Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5728 Page 4 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. 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. Statement of Covenants Temporary Storm Drainage Facilities Tract No. 5728 Page 5 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 Storm Drainage Facilities Tract No.5728 Page 6 DATED: De-12 aff CITY OF FRESNO, COVENANTOR a Municipal Corporation CENTEX HOMES, Public Works Department A Nevada General Partnership Patrick Wiemiller, Director By: CENTEX REAL ESTATE CORPORATION, A Nevada Corporation, Managing General Partner 7 By: By: Sco Mozier, P.E.,Assistant irector Aaron York, V e President izrititlements, Central Valley Division APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney John W. Fox Deputy City Attorney Date: tl-- (Attach Notary Acknowledgment) State of California) County of Tulare ) On May 14, 2008 before me, Mary L. Heflin, Notary Public, personally appeared AARON YORK, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that, by his signature on the instrument, the person or the entity on behalf of which the person 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. WITNES my hand and official seal. ,c J Signature M L. NEFLM! Comminlon # 1739476 Notary Public -California Tulare County QWC0rnmB0wApr17.2011 CLERK'S CERTIFICATION State of California ) County of Fresno ) On June 25, 2008, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno, personally appeared, Scott, P.E., Assistant Public Works Director, 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) acted, executed the instrument. l 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 �t� -oByC1 Deputy