HomeMy WebLinkAboutT-5892 - Agreement/Covenant - 1/29/2014 (4) WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, Ca 93721-3603 0112912014,20140009621
NO FEE—Government Code 6103
CITY OF FRESNO
Public Works Department
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Z P.W. File No. 11741
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STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT
FOR TEMPORARY STORM DRAINAGE FACILITIES FOR THE
FINAL MAP OF TRACT NO. 5892
f A
Statement of Covenants
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
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
S '
i
Statement of Covenants
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
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 parry in such proceeding
or action shall be entitled to recover from the other parry 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. 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.
ti •
Statement of Covenants
Temporary Storm Drainage Facilities
Tract No. 5892
Page 7
DATED:
CITY OF FRESNO, COVENANTOR:
a Municipal Corporation
COPPER RIVER 74, INC.,
Public Works Department A California Corporation
Patrick Wiemiller, Director
"'-"
Scott Mozier P.E., Assist t Director Darius Assemi, President
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By: (Attach Notary Acknowledgments)
Tana Kolluri- �rbick
Deputy City Attorney
Date: ' 1
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On December 20, 2013 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
YVONNE SPENCE, CMC
City Clerk, City of Fresno
Of FR,
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
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EMMA L.BAKER
WITNESS my Land and official seal. NOTARY PUBLIC•CALIFORNIA
COMMISSION#1934930 Yom'
FRESNO COUNTY
My Comm.Exp.May 31.2015
!::urC Of Notary Public
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The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded
on December 13, 2013 , in the office of the Fresno County Recorder
as Document No. 2013-0168196-00 of which the Deed of Trust in by and between:
Copper River 74, Inc., a California corporation as
Trustor, First American Title Company
U.S. Bank National Association, d/b/a Housing Capital Company
as Trustee, and g CaP� P Y ,
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. 5892.
DATED: December 13, 2013
BENEFICIARY
By:
Name:
Thomas G. Walker
Title: Senior Vice President
By:
Name:
Title:
(Beneficiary to print/type document
information, Name, Title and attach Notary
Acknowledgment)
STATE OF CALIFORNIA )
>ss.
COUNTY OF FRESNO )
On December 13, 2013, before me, Rhonda Harold, a Notary Public, personally appeared
Thomas G. Walker, 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 upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY that under the laws of the State of California that the
foregoing paragraph is true and correct.
�. , RHONDA HAROLD
WITNESS my hand and official seal. Commission # 1906102
Notary Public -California zotakc
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Z � ' Fresno County
My Comm. Expires Oct 28,2014
Signature
Exhibit A
Legal Description
Tract 5892
Temporary Ponding Basin
That portion of Remainder Lot of the Final Map of Tract No. 5892, recorded in
Volume 3 of Plats at pages "A9,Zand ':73 , Fresno County Records, described as
follows:
BEGINNING at a point on the Northeasterly line of said Remainder Lot a distance of
47.46 feet from the most Easterly corner of said Remainder Lot thence North 19148'50"
West along the Northeasterly line of said Remainder Lot a distance of 170.00 feet;
thence South 69051'12" West, a distance of 61.85 feet to the intersection with a tangent
curve; thence Southwesterly along said tangent curve, concave to the Southeast,
having a radius of 335.00 feet, through a central angle of 19055'40", an arc distance of
116.52 feet; thence South 49°55'31" West, a distance of 204.74 feet to the intersection
with a tangent curve; thence Southwesterly along last said tangent curve, concave to
the Southeast, having a radius of 1285.00 feet, through a central angle of 15°24'11", an
arc distance of 345.45 feet; thence South 34031'21" West, a distance of 114.23 feet;
thence South 55028'50" East, a distance of 170.00 feet; thence North 34031'21" East, a
distance of 114.22 feet to the intersection with a tangent curve; thence Northeasterly
along last said tangent curve, concave to the Southeast, having a radius of 1115.00
feet, 'through a central angle of 15°24'11", an arc distance of 299.75 feet; thence North
49055'31" East, a distance of 204.74 feet to the intersection with a tangent curve;
thence Northeasterly along last said tangent curve, concave to the Southeast, having a
radius of 165.00 feet, through a central angle of 19055'40", an arc distance of 57.39
feet; thence North 69051'12" East, a distance of 61 .86 feet to the Point of Beginning.
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„,vo EXHIBIT "B” 4
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64 3° 40
83 bs
d
o = 19'55'40"
R= 335.00' 7 62
L- 116.52' �� 58
Q2 = 15'24'11" d 8
1
R= 1285.00' 957
L= 345.45' �/
Q = so
15'24'11"
R= 1115.00' W 10 59
IRAGI' 5891 L— 299.75' 6951 16�85
REMAINDEER ® = 19'55'40" S 11
R— 165.00' Q 50
UrlURE PHASE L= 57.39'
15
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POINT OF BEGINNING
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SCALE: 1" 15R/
\ / 150 100 50 0 150
RECORD OWIM PREPARED BY:
HATCHED AREA DEPICTS TEMPORARY A.P.N. 579-074-09 GARY GUWNETTA
PONDING BASIN COPPER RIVER 74, INC. 1119 "S" STREET
1396 W. HERNDON AVE. STE 101 FRESNO, CA. 93721
AREA = 134,279 SQ. FT. FRESNO, CA. 93711 (559) 264-3590
(559) 436-0900
REF. °` REV. CITY OF FRESNO PROD ID.
FUND N0.
ORG. NO.
A PORTION OF OUTLOT G OF THE AMENDING MAP OF TRACT NO. DR. BY: JL SHEET NO.
5205, RECORDED IN VOLUME 76 OF PLATS AT PAGES 46-70, CH BY: OF 1 SHEET
FRESNO COUNTY RECORDS FOR:
DATE: 11/18/13
TBIPORARY PONDING BASIN SCALE: AS NOTED