HomeMy WebLinkAboutT-5892 - Agreement/Covenant - 2/11/2014 WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street @21»12014,2014018026
Fresno, Ca 93721-3603
NO FEE—Government Code 6103
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0 CITY OF FRESNO
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Z Public Works Department
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0 P.W. File No. 11741
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STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
FOR A 2ND TEMPORARY STORM DRAINAGE FACILITIES FOR
THE FINAL MAP OF TRACT NO. 5892
Statement of Covenants
2ND Temporary Storm Drainage Facilities
Tract No. 5892
Page 2
RECITALS
WHEREAS, COPPER RIVER 74,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
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.5892, 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("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
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
2ND Temporary Storm Drainage Facilities
Tract No. 5892
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
2ND Temporary Storm Drainage Facilities
Tract No. 5892
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
2ND Temporary Storm Drainage Facilities
Tract No. 5892
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.
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 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
2ND Temporary Storm Drainage Facilities
Tract No. 5892
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..
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
2ND Temporary Storm Drainage Facilities
Tract IVo. 5892
Page 7
DATED: L7;)-- 3 —/4
CITY OF FRESNO, COVENANTOR:
a Municipal Corporation
COPPER RIVER 74, INC.,
Public Works Department A California Corporation
Scott Mozier, P.E., Director
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Y' ott Mozier, P.E., Dire or Darius Assemi, President
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:_ � (Attach Notary Acknowledgments)
T,4a-1<olluri-Barbiok
Deputy City Attorney
Date: � 13 1 f I L4
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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State of California
County of Fresno
On 2-7 )`(before me, Cristina G. Lopez, Notary Public
( gate Here Insert Name and Title of the Officer
personally appeared Darius Assemi
{ Name(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
CRISTINA G.LOPEZ- person(s), or the entity upon behalf of which the
Commission#2004143 person(s) acted, executed the instrument.
Notary Public -California z
If
Z Fresno County- ' I certify under PENALTY OF PERJURY under the
Ry Comm. Expires Feb 12.201 7 laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
Place Notary Seal Above S Iotary Publi J
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:.
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑ Individual
❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑Limited ❑General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
Trustee ❑Trustee
n Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other:
Signer Is Representing: Signer Is Representing:
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0 2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item 05907
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On February 6, 2014, before me, Cindy Bruer, Deputy City Clerk, personally
appeared Scott Mozier, Director of the Public Works Department 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
D puty
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SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded
on 13T�►.P 2z 13 , in the office of the Fresno County Recorder
as Document No. Tat 3- 0169 1 9/a --ao of which the Deed of Trust in by and between:
C-aPPFR PNPB 74, A- CA as Trustor,
-F48S : a►--' 1ca.-V COM .air v as Trustee, and
U.S. B4.4k 41 7-iaNA,- Assoc t =It,y, d/b/a Jk6,sLa& e-r as Beneficiary, hereby
expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing
Statement of Covenants Affecting Land Development for a 2nd Temporary Storm Drainage Facilities
for The Final Map of Tract No. 5892.
DATED: ,^�'
BENEFICIARY
By:
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Name:
Title: Y Vf2
By:
Name:
Title:
(Beneficiary to print/type document
information, Name, Title and attach Notary
Acknowledgment)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
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State of California
County of ��]
On Aan_t.tL1( Z%}h 6-14 before me, T-1 I : )+
Date Here Insert Name and Title of the Officer
personally appeared CA1-L F ] 1
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(�y whose name(K' is/aFe�
subscribed to the within instrument and acknowledged
to me that he/sKe/t.* executed the same in
his/la&A F authorized capacity(Les°j, and that by
his/firer/tL�ir signature($)' on the instrument the
person(s), or the entity upon behalf of which the
WA*V=_ personal acted, executed the instrument.
coo�0 20601 I certify under PENALTY OF PERJURY under the laws
Mtrr PMC-couft of the State of California that the fore going
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� » is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature: �� Q l X- Jon
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended 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:
❑Corporate Officer—Title(s): D Corporate Officer—Title(s):
❑ Partner— 1-. Limited General 0 Partner— ❑Limited ❑General
❑ Individual . Attorney in Fact ❑ Individual +❑Attorney in Fact
❑Trustee L Guardian or Conservator ❑Trustee L Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
C 2013 National Notary Association •www.NationalNotary.org 9 1-800-US NOTARY(1-800-876-6827) Item #5907
Exhibit A
Legal Description
Tract 5892
Temporary Ponding Basin
That portion of Remainder Parcel of the Tract No. 5892, recorded in Volume_:, of
Plats at pages'f, . = and e.� , Fresno County Records, described as follows:
Commencing at the most Northerly corner of said Remainder Parcel, said most
Northerly corner also being on the Southeasterly line of the North Alicante Drive right-of-
way; thence South 35011'05" West, along the Northwesterly line of said Remainder
Parcel, also being along the Southeasterly line of the North Alicante Drive right-of-way,
a distance of 249.73 feet; thence Southwesterly along a non-tangent curve, concave to
the Northwest, also being along the Northwesterly line of said Remainder Parcel and
Southeasterly line of the North Alicante Drive right-of-way, whose radius point bears
North 54049'15" West, having a radius of 1995.00 feet, through a central angle of
8022'44", a distance of 291.75 feet to the TRUE POINT OF BEGINNING; thence South
45008'49" East, a distance of 205.84 feet, thence South 44051'11" West, a distance of
129.00 feet; thence North 45008'49" West, a distance of 207.10 feet to the intersection
with the Northwesterly line of said Remainder Parcel; thence Northeasterly along a
non-tangent curve, concave to the Northwest, also being along the Northwesterly line of
said Remainder Parcel and the Southeasterly line of the North Alicante Drive right-of-
way, whose radius point bears North 42°44'11" West, having a radius of 1995.00 feet,
through a central of 3042'20", a distance of 129.02 feet to the TRUE POINT OF
BEGINNING.
PROF 7S
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