HomeMy WebLinkAboutT-5838 - Agreement/Covenant - 6/24/2011 (6) WHEN RECORDED MAIL TO:
2
cc
0 City Clerk
Z City of Fresno
Q 2600 Fresno Street
V Fresno, Ca 93721-3603
W
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NO FEE—Government Code 6103 0612412011,20110083857
CITY OF FRESNO
Public Works Department
P.W. File No. 11054
STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
FOR TEMPORARY STORM DRAINAGE FACILITIES FOR THE
FINAL MAP OF TRACT NO. 5838, PHASE-1 OF VESTING
TENTATIVE MAP NO. 5838
Statement of Covenants
Temporary On-site Storm Drainage Facilities
Tract No. 5838
Page 2
RECITALS
WHEREAS, COPPER RIVER SOUTHWEST 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 Property' and more
particularly described as follows:
Outlot D of the Final Map of Tract No. 5838 according to the map
thereof recorded on . vsiE StA, "Lot I in Volume. L of Plats
at Page(s) q1 Mr+D 99, 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. 5838,hereinafter referred
to as "map," requires the provision and maintenance of two (2) 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 ("City") 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
Statement of Covenants
Temporary On-site Storm Drainage Facilities
Tract No. 5838
Page 3
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 portions of the Subject Property, more particularly
described and made a part of this Statement of Covenants in the attached Exhibit A and graphically
delineated in the attached 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 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 Development and Resource Management Department,
to obtain a grading permit from the Development and Resource Management Department to
abandon such temporary storm drainage facilities. The abandonment of said temporary storm
Statement of Covenants
Temporary On-site Storm Drainage Facilities
Tract No. 5838
Page 4
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 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 indirectlyfrom 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
and exclusive risk of the Covenantor at all times prior to the release by the City of the temporary
Statement of Covenants
Temporary On-site Storm Drainage Facilities
Tract No. 5838
Page 5
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.
8. 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.
9. The waiver by either party of a breach bythe other of any provislon 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 On-site Storm Drainage Facilities
Tract No. 5838
Page 6
Covenant maybe 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.
10. 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 On-site Storm Drainage Facilities
Tract No. 5838
Page 7 J f
DATED: L yj e 14 . 2ol
CITY OF FRESNO, COVENANTOR:
a Municipal Corporation
COPPER RIVER SOUTHWEST, INC.,
Public Works Department a California Corporation
Patrick Wiemiller, Director
By: By:
09
Scott Mozier, P.E., Assi nt Director Christine Lingenfelte As ' ta- ntArecretary
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By:
Thnoin (Attach Notary Acknowledgments)
Deporney
Date:
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
State of California
County of �fSn7
On M&M ?T ZDV before me, yad-ct�j n ,S (�Mif
DateHere Insert Name and Title of the Officer
personally appeared Yi ,r1L LSn!ieAn�-�l-I--ems
Name(s)of S' r(s)
e
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
MADELYN J. CUI -IR his/her/their authorized capacity(ies), and that by
Commlssilon * 1764882 his/her/their signature(s) on the instrument the
Notary PubtiC -COMWO person(s), or the entity upon behalf of which the
Fresno County person(s) acted, executed the instrument.
MyConm8ONAU9s1.11IN1
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.
Signature: Q"`G '` 1 a. ou&(eu
Place Notary Seal Above Sighatoe of Nota ublic
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:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
-1 Corporate Officer—Title(s): Fl Corporate Officer—Title(s):
Individual ❑ Individual
❑ Partner—' Limited i_l General Top of thumb here ❑ Partner—0 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:
0 2010 National Notary Association-NationalNotary.org-1-800-US NOTARY(1-800-876-6827) Item#5907
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On June 17, 2011 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
.4 0 F FyEr
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Deputy
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded onin the office of the Fresno County Recorder, as Document
No. 7— of which the Deed of Trust in, by and between
I�l ire-i"o�1lL . //�G. . ct 1 e j��'j2%2a �n -h0L, as Trustor,
l� f i ryn 5 t as Trustee
and /f r neficiary,
hereby expres subordinates said Deed of rust and its beneficial interest thereto to the
foregoing Statement of Covenants for Temporary Storm Drainage Facilities for the Final Map of
Tract No. 5838, Phase 1 of Vesting Tentative Map No. 5838.
DATED:
,DFP r-manc,l'al /tic,,
BENEFICIARY a N/i fvrnict G,rpora-
f 3
By: 1 "'14
Name: 'Thomo,s , 41j-J 2
By:
Name:
Title:
(attach Notary Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of �Yr5Y1 O
On 1`� \ 25. �(� before me, I v l�'�•��r1 �• ljU"�� Q 1�, ✓lt�1.� �t l�p�I
Date Here(Insert Name and Title of the Officer
personally appeared (ygbwas G. Wat
Name(s)of Signer(s)
i
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
MADELYN J. CUELLAR capacity(ies), and that by his/her/their signature(s) on the
Commission # 1764881 instrument the person(s), or the entity upon behalf of
Z -•s Notary Public -Calllornia which the person(s) acted, executed the instrument.
Fresno County
trtycomm Aups1.2o11
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. nutU
Signature`s QO�K��-- 9 . a
lA__)
Place Notary Seal Above Ognature of Utary 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:
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 - EJ Partner—El Limited ❑ General _
El Attorney in Fact • ❑ Attorney in Fact •
❑ Trustee Top of thumb here ❑Trustee Top of thumb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
02007 National Notary Association-9350DeSoto Ave.,P.O.Box2402•Chatsworth,CA91313-2402-www.NationalNotaryorg Item#5907 Reorder:Call Toll-Free 1-800-876-6827
EXHIBIT A
Legal Description
Tract 5838
Temporary Storm Drainage Basin A
That portion of Outlot D of the Final Map of Tract No. 5838 according to the map thereof recorded
on �UK6 2-j ZVII in Volume pages 91 ,qY bm , qA of Plats, Fresno
County Records, described as follows:
BEGINNING at a point on the East line of said Outlot D, 15.30 feet South of the Northwest corner
of Lot 44 of said Tract No. 5838; thence North 1'42'54" West, along the East line of said Outlot
D, a distance of 40.32 feet to an angle point in the East line of said Outlot D, said angle point also
being the Southwest corner of Lot 43 of said Tract No. 5838; thence North 18159'33" West, a
distance of 31.17 feet; thence South 72143'38" West, a distance of 281.75 feet; thence South
17016'22" East, a distance of 70.00 feet; thence North 72143'38" East, a distance of 271.87 feet
to the Point of Beginning.
Legal Description
Tract 5838
Temporary Storm Drainage Basin B
That portion of Outlot D of the Final Map of Tract No. 5838 according to the map thereof recorded
on SvNE Sk. Ull in Volume pages 611;ggprNt,q of Plats, Fresno
County Records, described as follows:
BEGINNING at a point on the East line of said Outlot D, a distance of 10.70 feet South of the
Southwest corner of Lot 47 of said Tract No. 5838; thence North 1042'54" West, along the East
line of said Outlot D, a distance of 152.92 feet; thence South 721,43'38" West, a distance of
263.65 feet; thence South 18016'16" East, a distance of 163.80 feet; thence North 67151'46"
East, a distance of 163.80 feet; thence North 67051'46" East, a distance of 214.37 feet; thence
North 88017'06 East, a distance of 6.42 feet to the Point of Beginning.
1
EXHIBIT B
TRACT NO. 5838 Temporary Storm Drainage Facilities
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