HomeMy WebLinkAboutT-5956 - Agreement/Covenant - 8/26/2010 (4) Recording Requested By:
Public Works Department
City of Fresno @812612@10,2@10011@155
No Fee-Gov't. Code Sections
6103 and 27383
When Recorded, Mail To:
Public Works Department
City of Fresno
2600 Fresno Street
Fresno, CA. 93721-3623
ATTN: Alan James
SPACE ABOVE THIS LINE FOR RECORDER'S USE
2010-01
0 COVENANT AND PERMIT
O
U- For Encroachment in a Public Right-of-Way
Z
O
U The undersigned FFDA Properties, LLC a California limited liability company,
LUindividually and collectively hereinafter referred to as "Covenantor", is the record owner
Q of -the real property situated in the City of Fresno, County of Fresno, State of California,
1141 J APN 466-192-01 and APN 466-192-16, situated on the south corner of Fulton Street
O. and Amador Streets and more fully described as Lots 1 through 13, inclusive, of Block
344, according to the map of the subdivision of said Block thereof recorded in Volume 1
of Plats at Page 27, Fresno County Records, hereinafter called the "Real Property".
WHEREAS, certain property immediately outside and abutting the Real Property
is a public easement and right-of-way, hereinafter referred to as the "Public Right of
Way"; and
WHEREAS, pursuant to Chapter 13 Article 2 of the Fresno Municipal Code,
Covenantor has requested an Encroachment Permit ("Permit") from the City of Fresno
("City") for permission to construct a concrete building footing along the southeast side
of Amador Street southwest of Fulton Street and along the southwest side of Fulton
Street southeast of Amador Street, and to construct a 24.5 foot by 4 foot balcony on the
southwest side of Fulton Street southeast of Amador Street hereinafter referred to as
the "Facility", within a portion of the Public Right of Way as shown in Exhibit "A"
attached hereto and incorporated herein, hereinafter referred to as the "Encroachment
Area"; and
WHEREAS, the City's Department of Public Works Director ("Director") has
reviewed Covenantors' Encroachment Permit Application and finds as follows: (1) that
the issuance of the Permit will meet a legitimate purpose of Covenantor; (2) that this
purpose cannot be feasibly accomplished by other means; and (3) that issuance of the
Permit for Covenantor's purpose will not be detrimental to the public health, safety, and
welfare.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledged, the parties agree as follows:
1. In accordance with this Covenant and Permit and subject to Chapter 13, Article
2, Section 13-219 of the Fresno Municipal Code, a nonexclusive, revocable
Encroachment Permit to use and occupy the Encroachment Area solely as
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provided for hereunder shall issue to Covenantor automatically with the
recording of this Covenant and Permit.
2. The Encroachment Permit shall continue in effect until revoked by City in any
manner provided hereunder. The City, its representatives, permittees and
franchisees shall have the right to enter upon all or any part of the Encroachment
Area at any time for any lawful purpose(s).
3. Covenantor is neither an employee, partner nor agent of the City. Covenantor, at
its sole cost, expense and liability, shall use the Encroachment Area solely for
purposes of installing, operating, maintaining and repairing the Facility. In the
event Covenantor fails to reasonably repair any damage to the Encroachment
Area caused by Covenantor or the Facility, City may do so at the sole cost,
expense and liability of Covenantor.
4. Covenantor shall maintain the Encroachment Area free of any nuisance in fact or
in law. Covenantor shall at all times conduct Covenantor's activities, or cause
Covenantor's activities to be conducted, in full compliance with all applicable
federal, state, and local laws. Covenantor shall be solely responsible for
operation, maintenance and repair of the Facility, including without limitation all
costs associated therewith. Covenantor shall at all times operate, maintain and
repair the Facility so that there is no unreasonable interference with vehicular or
pedestrian traffic. In addition to its governmental, legislative, administrative and
regulatory activities, the City retains the right to verify that the Covenantor is
performing its respective obligations in accordance with controlling law and the
terms and conditions hereof.
5. This Encroachment Permit does not relieve Covenantor from the obligation of
obtaining a street work permit pursuant to Chapter 13, Article 2, Section 13-202
for any work to be done in the Public Right of Way contiguous to or within the
Encroachment Area. Before beginning to install the Facility, Covenantor shall
obtain written approval of all plans, drawings, and specifications for such
installation from -the Director. Upon such approval, Covenantor shall install the
Facility as promptly as practicable in strict accordance with the approved plans,
drawings, and specifications. No change shall be made in the approved plans,
drawings, or specifications without the prior written approval of the Director.
6. City makes no representation or warranty as to the nature or extent of City's
interest in, or the condition or suitability of, the Encroachment Area. Covenantor
shall inform and satisfy itself in such regards. Covenantor shall obtain any and all
title reports, permits, authorizations, consents and approvals necessary to
lawfully enter the Encroachment Area and install the Facility. This Encroachment
Permit is not permission to trespass on any property, publicly or privately owned.
7. Covenantor shall indemnify, hold harmless and defend the City and each of its
officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether imposed under
authority of statute or common law, in contract, tort, or strict liability, including but
not limited to personal injury, death at any time, and, property damage) incurred
by the City, Covenantor or any other person, and 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 out of or in any
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way connected with (a) the issuance and pursuit of this Covenant and Permit, (b)
use of the Encroachment Area by Covenantor, its employees, officers, agents,
contractors or subcontractors, and/or (c) design, installation, operation,
maintenance, repair and/or removal of the Facility. Covenantor's obligations
under the preceding sentence shall apply regardless of whether the City or any
of its officers, officials, employees, agents or volunteers are actively or passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures,
costs or damages caused solely by the active negligence or by the willful
misconduct of City or any of its officers, officials, employees, agents or
volunteers. This section shall survive revocation of this Covenant and Permit.
8. The City, in its sole discretion, may revoke the Encroachment Permit (i) upon
Director's determination that the Covenantor has failed to comply with one or
more of the terms, conditions, or restrictions hereunder, and/or (ii) upon
Director's determination that the use of the Encroachment Area, or any portion
thereof, is required for any municipal or public utility purpose or is detrimental to
or not in furtherance of the public health, safety, welfare and interest. City shall
endeavor to give at least ninety (90) days written notice of such requirement
and/or finding either by mailing such notice through the United States mail, or by
personal delivery, to Covenantor at its address of record or at such other
address as is provided to City in writing by Covenantor. Upon any revocation of
the Encroachment Permit, Covenantor shall at its sole cost, expense and liability
remove the Facility and any and all appurtenant structures and equipment
located in the Encroachment Area, restore the Encroachment Area to
substantially the same condition it was in prior to removal of the Facility, and
surrender to the City all possession, use and occupation of the Encroachment
Area. Further, Covenantor shall defend, indemnify, and hold harmless the City
and each of its officers, officials, employees, agents and volunteers from and
against any and all liabilities, demands, claims, damages, losses, costs, and
expenses of whatsoever kind or nature, including, but not limited to, any and all
direct and indirect costs of defense, made against, or incurred or suffered by,
any such indemnitee resulting directly or indirectly from the requirements of this
Section 9, or otherwise in connection with the reoccupation and repossession of
the Encroachment Area by the City.
9. This Covenant shall run with the land, and shall be jointly and severally binding
upon Covenantor and each of its heirs, representatives, successors, and
assigns.
10. Covenantor represents and warrants that Covenantor has consulted with the City
of Fresno's Development Department to confirm whether any additional permit(s)
are required for the encroachment and Facility and Covenantor agrees to apply
for and acquire such additional permit(s). City may revoke the Encroachment
Permit in the manner provided in Section 8 above, should such additional
permit(s) be required by City and is not timely obtained by Covenantor.
11. The prevailing party in any action to enforce or interpret any term, covenant or
condition of the Covenant and Permit shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
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12. The provisions of the Covenant and Permit are severable. The invalidity or
unenforceability of any one provision, or part thereof, shall not affect the validity
or invalidity of any other provision, provided that City may revoke the
Encroachment Permit in the manner provided in Section 8 above, in the event
such invalidity or unenforceability shall cause the Covenant and Permit to fail of
its essential purposes.
13. The parties acknowledge that this Covenant and Permit in its final form is the
result of combined efforts of the parties and that, should any provision of this
Covenant and Permit be found to be ambiguous in any way, such ambiguity shall
not be resolved by construing this Covenant and Permit in favor or against any
party, but rather by construing the terms in accordance with their generally
accepted meaning.
14. In the event of any conflict between the body of this Covenant and Permit and
any Exhibit or Attachment hereto, the terms and conditions of the body of this
Covenant and Permit shall control and take precedence over the terms and
conditions expressed within the Exhibit or Attachment. Furthermore, any terms or
conditions contained within any Exhibit or Attachment hereto which purport to
modify the allocation of risk between the parties, provided for within the body of
this Covenant and Permit, shall be null and void.
15. Whenever in this Covenant and Permit the context hereof requires, the neuter
shall include the masculine or feminine or both and the singular shall include the
plural.
16. Covenantor agrees to protect and hold harmless the City, the Facility, the
Encroachment Area, and any and all improvements located therein or thereon
and any and all facilities appurtenant thereto and any and all other property(ies)
located therein or thereon and any and all of City's interest(s) in and/or to said
premises, improvements, appurtenant facilities, and/or other property(ies), from
any and all such taxes and assessments, including any and all interest, penalties
and other expenses which may be imposed thereby or result therefrom, and from
any lien therefor or sale or other proceedings to enforce payment thereof.
Nothing within this Section 16 shall be deemed to limit any of Covenantor's rights
to appeal any such levies and/or assessments in accordance with the rules,
regulations, laws, statutes, or ordinances governing the appeal process of the
taxing authority(ies) making such levies and/or assessments.
17. By its signature(s) hereunto affixed, Covenantor expressly acknowledges and
clearly understands that neither this Covenant and Permit, nor the issuance of
this Covenant and Permit by City to Covenantor nor acceptance of this Covenant
and Permit by Covenantor constitutes, in any way whatsoever, any agreement by
or on behalf of City to enter into any further/other agreement, permit, lease, or
other arrangement of any type whatsoever, beyond the term of or in addition to
this Covenant and Permit.
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In WITNESS WHEREOF, the Covenantor has executed this Covenant and Permit.
FFDA Properties, LLC a California limited liability company
By: rrlcv� Dated: , 2010
Darius Assemi, ice--P resident
IMPORTANT NOTE: This covenant must be executed by all record owners of the Real
Property and acknowledged before a notary public.
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APPROVED AS TO COVENANT AND PERMIT ISSUANCE TERMS AND
CONDITIONS AND PROPERTY DESCRIPTION:
` Dated: �6 , 2010
Scott L. Mozier, PE
Assistant Public Works Director
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By:
$ ADL• j , Deputy
D:\DATA\Encroachments\2009-02\2009-03 covenant.doc
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of R�,Snn
On Jam' 1�)(� before me, a ti`gU-0' 1 Y (k ` VL02, 1 I;r!S —n(-U �AU 10
Date Here Insert Name arftl Title of the Officer
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personally appeared a 1-L1 US t?�f'VLI
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 person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
-: R MARTINEZ
- MVAMBER
# 1833812
Notary Public California i I certify under PENALTY OF PERJURY under the laws
Fresno County ' of the State of California that the foregoing paragraph is
My Comm.Expires Feb 12,2013 true and correct.
WITNESShand and officials al.
Signature
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Place Notary Seal Above Signature of Notary 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(les) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Partner—[I Limited ❑ General M. ❑ Partner—❑ Limited ❑ General _
❑ 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:
0 2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.Nationa]Notaryorg Item#5907 Reorder Call Toll-Free 1-600-676-6827
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On June 16, 2010, before me, Cindy Bruer, Deputy City Clerk, personally
appeared Scott L Mozier, Assistant Public Works Director 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.
REBECCA E. KLISCH. CMC
CITY CLERK, City of Fresno
FRcsB
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Depu � a
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EXHIBIT "A"
N
SCALE: 1' 30'
SEE SHED OF 7 FQR SECTIONS A-A & B-B
30 20 10 0 30
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PPO
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APN 466-192-01
L11J1111 PROPOSED CONCRETE BUILDING FOOTING ENCROACHMENT
PREPARED 13Y.-
PROPOSED
Y:PROPOSED BALCONY ENCROACHMENT GARY GIANNETTA
1119 "S' STREET
FRESNO, CA. 93721
(559) 264-3590
5/12/10
F. REV. CITY OF FRESNO PROD. JD.
ACCT N0.. FUND N0.
FILE NO. ORG. NO.
C-09-125 A PORTION OF THE TOWN (NOW CITY) OF FRESNO DR. BY: B. GIANNETTA SHEET NO. 1
C-10-067
TR 5956 CH BY: OF 2 SHEET
DATE:
SCALE: AS NOTED 15-A-
EXHIBIT "A"
R
AMOR & FULTON PROPOSED WALL
VARIES 10'-25' PROPOSED
SIDEWALK FINISH FLOOR
_
EXISTING •>Y:'7•. ' •'A- '•
CURB & GUTTER
SECTION A-A
SCALE: 1' 3'
R
BALCONY
�4'
0
FULTON PROPOSED WALL
25' PROPOSED
SIDEWALK FINISH FLOOR
EXISTING rr i':'`,�:;:�;�::, •. v
CURB & GUTTERY,4
L-2.5'�
PREPARED 8Y.
SECTION B-8 GARY GIANNErrA
SCALE: 1" m 3' 1119 "S" STREET
FRESNO, CA. 93721
(559) 264-3590
5/12/10
ACCT NO. RE". CITY OF FRESNO PROD. M.
FUND NO.
FILE NO. ORG. NO.
C-09-125 A PORTION OF THE TOWN (NOW CITY) OF FRESNO DR. BY: B. GIANNETrA SHEET N0. 2
C-10-067 CH BY:
TR 5956 OF 2 SHEET
DATE:
SCALE: AS NOTED 15-A-