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HomeMy WebLinkAboutT-5914 - Agreement/Covenant - 9/15/2014 (3) WHEN RECORDED MAIL TO: 09/12/2014120140100917 City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 NO FEE—Government Code 6103 CITY OF FRESNO Public Works Department D P.W. File No. 11707 ILLZ O i3 W a W J CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR AN INTERIM PASEO CONNECTION FOR THE FINAL MAP OF TRACT NO. 5914 Statement of Covenants Interim Connection Tract No. 5914 Page 2 RECITALS WHEREAS, HERNDON/HAYES No. 1, LLC, a California Limited Liability Company, 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 A and Outlot B of Tract No. 5914, according to the final map thereof recorded on SOP'SGe�R I �_ Iq in Volume `" of Plats at Page(s) 2.1 --f1tR006,0 2O , 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,the City Planning Commission, pursuantto Resolution 12829,approved Vesting Tentative Map No. 5914, hereinafter referred to as the "Tentative Map"; and WHEREAS, a condition of approval of the Tentative Map requires Outlot A of the Subject Property(Outlot A) to be developed as a"paseo" (a linear landscaped area that provides primarily casual pedestrian access along or through a proposed property development);and. WHEREAS, said Resolution 12829 requires a permanent pedestrian connection at the time of development of Outlot B of the Subject Property(Outlot B) between Outlot A and the landscape and trail easement along the Herndon Avenue frontage on Outlot B; and WHEREAS, such permanent pedestrian connection is not feasible until development plans for Outlot B have been approved; and WHEREAS, a condition of approval of the Tentative Map requires Covenantor to provide and maintain an interim connection between Outlot A and the landscape and trail easement along the Herndon Avenue frontage on Outlot B ("Interim Paseo Connection"); and WHEREAS, the Covenantor and the City of Fresno("City")desire to enter into an agreement providing for the Interim Paseo Connection. Statement of Covenants Interim Connection Tract No. 5914 Page 3 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 its respective his/her/its heirs,successors,and assigns during ownership thereof. 1. Covenantor agrees that the Interim Paseo Connection is for public pedestrian use 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 the Interim Paseo Connection. 2. Covenantor agrees the Interim Paseo Connection will be situated, designed and constructed in accordance with improvement plans prepared by the Covenantor and approved by the Public Works Department. 3. Covenantor shall maintain the Interim Paseo Connection until such time as Outlot B is developed and provides a permanent connection to replace the Interim Paseo Connection. 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 and each of its officers, officials, employees, agents and volunteers 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, Statement of Covenants Interim Connection Tract No. 5914 Page 4 except as stated herein. To the furthest extent allowed by law the Covenantor shall indemnify, hold harmless and defend City and each of its officers,officials,employees,agents and volunteers from any and all loss, liability,fines, penalties,forfeitures,costs and damages(whether in contract,tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Covenantor or any other person from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses),arising or alleged to have arisen 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. Covenantor's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence or the willful misconduct of the City or any of its officers, officials, employees, agents or volunteers. . The Covenantor further agrees that the use for any purpose and by an person of any and all of the Interim Connection 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 Interim Connection thereon and therein. If Covenantor should subcontract all or any portion of the work to be performed under this Contract,Covenantor shall require each subcontractorto indemnify, hold harmless and defend City and each of its officers,officials,employees,agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination of expiration of the Statement of Covenants. 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 Statement of Covenants Interim Connection Tract No. 5914 Page 5 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 permanent connection is completed and accepted bythe Public Works Director, 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"attomeys'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 1 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 Statement of Covenants Interim Connection Tract No. 5914 Page 6 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 Interim Connection Tract No. 5914 Page 6 DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation HERNDON/HAYES NO. 1, LLC, Public Works Department A California Limited Liability Company Scott Mozier, P.E., Director By: V ! By: Andrew J. elli, P.E., Assistant Director Robert A. Mc affrey, 7 Chief Executive Officer/Manager APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By. May Raterman-Doidge Deputy City Attorney (Attach Notary Acknowledgments) Date: P/ozo///4 L CLERK'S CERTIFICATION State of California ) County of Fresno ) On September 2, 2014 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Andrew J. Benelli, 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 By f� Deputy STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On July 28, 2014, before me, Shelle Hartmann, Notary Public, personally appeared, Robert A. McCaffrey, 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 the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public L.S. My Commission Expires: January 1, 2015 7 z s'+L Commission # z � Notary Public California z � z Fresno County z D My Comm. Expires Jan f, 2015 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 7, 2008, in the office of the Fresno County Recorder as Document No. 2008- 0066446 of which the Deed of Trust in by and between: Herndon/Haves No.1, LLC, a California limited liability company; McCaffrey Development, L.P., a California limited partnership; The McCaffrey Group, Inc., a California Corporation as Trustor, Financial Title Company, as Trustee, and U.S. Bank National Association d/b/a Housing Capital Company, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Interim Paseo Connection for the Final Map of Tract No. 5914. DATED: 712, 0l y BENEFICIARY By: .� Name: Thomas G. Walker Title: Senior Vice President By: Name: Title: (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKHOWLEDG IEMMT State of Califor 'a County Or J _u4before me, L , —TJate � e insert a tle of the Officer � personally appeared T Na, sl ner{s> who proved to me on the basis of satisfactory evidence to be the persono, whose namewis/asubscribed to the within instr ment and acknowle aged to me that he/sl)'thX,executed the same in his/Vr/�Ar authorized capaclty(iy4l), and that by his/tor/tf r signature�/on the LORI NICQLE BECKMAN instrumet5 the person or the entity upon behalf of Commission It 2012327 Z :.� which the person cted, executed the instrument. NotarQ��ftesno Public_California i County D I certify under PENALTY OF PERJURY under the laws Ex 'ree Mar 15,201 7 of the State of California that the foregoing paragraph Is true and correct. WITNESS hand and ficial seal. 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