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HomeMy WebLinkAboutT-5963 - Agreement/Covenant - 6/27/2013 WHEN RECORDED MAIL TO: City Clerk 0612512013,20130088866 City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 NO FEE - Government Code 6103 cc CITY OF FRESNO 0 Fire Department LLZ ❑ P.W. File No. 11694 0 W CILd W J STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR EMERGENCY VEHICLE ACCESS FACILITIES FOR THE FINAL MAP OF TRACT NO. 5963 Statement of Covenants for Temporary Off-Site Emergency Street Facilities Tract No. 5963 Page 2 RECITALS WHEREAS, COPPER RIVER SOUTHWEST INC., a California Corporation, hereinafter referred to as the "Covenantor," of the real property situated in the City of Fresno, County of Fresno, State of California, and more particularly described as follows: Lots 51 and 52 of the Final Map of Tract No. 5963 according to the map thereof recorded on JL;b!iF, 2� 2401 71 in Volume of Plats at Page(s) ltorr, I-11 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. 5963, hereinafter together referred to as the "Map," requires the provision and maintenance of a second point of emergency vehicle access by the Fire Department to serve the Map; and WHEREAS, the Covenantor and the City of Fresno (City) desire to enter into an agreement providing facilities for such second point of emergency vehicle access. 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 Covenants for Temporary Off-Site Emergency Street Facilities Tract No. 5963 Page 3 Statement of Covenants 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 in the attached Exhibit A and graphically delineated in the attached Exhibit B, shall be used for emergency vehicle access facilities purposes to provide a second point of access for emergency services to and for the benefit of the Map. The Covenantor agrees to construct and maintain the emergency vehicle access facilities (including but not limited to all-weather surface, `crash gates', by-pass locks, etc.) on the Subject Property and grants to the City of Fresno the right to enter upon the Subject Property for purposes of inspection and to regulate the use of and access to the Subject Property. The Covenantor shall restrict public access across the Subject Property during the term of this instrument. 2. The emergency vehicle access facilities shall be constructed to conform to the improvement plans prepared at the Covenantor's expense and approved by the Fire Chief and the City Engineer. The design of the emergency vehicle access facilities, including any related improvements and work, shall conform to Public Works standard specifications and specifications for its intended use and for Fire Department apparatus. The work shall be constructed pursuant to a Street Work Permit issued by the Public Works Department. 3. This Statement of Covenants shall in no way be construed as a grant by the City of Fresno of any rights to the Covenantor to trespass upon land rightfully in the possession of, or owned by another, whether such land be privately or publicly owned. 4. The City of Fresno 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, or any part thereof. The Covenantor hereby releases and agrees to indemnify, defend and save the City of Fresno, it's employees and agents harmless from and against any and all injuries to and deaths of persons, and all claims, demands, costs, loss damage and Statement of Covenants for Temporary Off-Site Emergency Street Facilities Tract No. 5963 Page 4 liability, howsoever same may be caused, resulting directly or indirectly from the performance of any or all work to be done in and upon the street rights-of-way and said Subject Property and upon the premises adjacent thereto pursuant to this Statement, 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. The Covenantor further agrees that the use for any purpose and by any person of any and all of the emergency vehicle access 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 emergency vehicle access facilities and other improvements thereon and therein. 5. The conditions of this Statement of Covenants are intended to benefit the Map, the Subject Property, public and public properties. Accordingly, it is agreed the City shall have the right to enforce this Statement of Covenants 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 agent violate the terms hereof. 6. The foregoing conditions and obligations of this Statement of Covenants shall remain in full force and effect until such time as the Public Works Director and the Fire Chief issue a written release of such conditions and obligations and records such release with the Fresno County Recorder. The Covenantor agrees to reimburse the City for reasonable costs associated with the preparation and recordation of said release. 7. 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 Statement of Covenants for Temporary Off-Site Emergency Street Facilities Tract No. 5963 Page 5 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. 8. 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 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. 9. The provisions of this Statement of Covenants 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 Covenants so requires, in interpreting this Statement of Covenants, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. Statement of Covenants for Temporary Off-Site Emergency Street Facilities Tract No. 5838 Page 6 DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation COPPER RIVER SOUTHWEST, INC., Fire Department a California Corporation 1 - S Wen G Rau, Secretary Deputy Chief/Fire M rsfia� APPROVED AS TO FORM: DOUGLAS T. SLOAN (Attach Notary Acknowledgment) City Attorney By: - Talia Kolluri-Ba ick Deputy City Attorney Date: �•-- s.a. .�:-vr� .fiC.�aaractr��r,�+��:e�-- �.,ex.�aco-.�� — �oo-�ca�.M;��r.�e�x¢o�o-�-�+�-.e�rco.•car�c.��.o,�tq�r State of Cali`tornia County of Fresno On qfA4 /�.A0/3 before me, Barbara J . Christensen,-Notary Public Dale Here Insert Name and Title of the Officer personally appeared tqa"-� Name(s)of Signer(s) who proved to me on the basis of satisia:ciory evidence to be the person(s) whose name(s) is/are subscribed to the within instrurnenf and acknowledged 'to me 'that he/she/they executed the same in his/her/their authorized capaciiy(ies), and that by his/herhheir signature(s) on the BARBARA J. CHRISTENSEN instrument the person(s), or the entity upon behalf of Commission #t 2008995 -: Notary Public-California i which the person(s) acted, executed the insirurnen'i. z Fresno County M Comm.Expires Feb 26,2017 1 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. Signaiure_Kj"� Place Notary Seal Above OPTIONAL p�g Sig ure of Notary Public OPTION E L 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 Docr.iment 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 D Individual ❑ Corporate Officer—Tiile(s): _ ❑ Corporate OYricer—Title(s): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—❑ Limited ❑ General ❑ Attorney in Fact - ❑Attorney in Fact ■ El Trustee ❑Trustee Top of thumb here Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing:____ ©2007 National Notary Association-9350DoSolo Ave.,P.O.Box.2402-Chalsworth,CA91313-2402-aavw.NalfonalNolary.org Ilem45907 Reorder.cs'Iroll-Free1-800-876-6827 CLERK'S CERTIFICATION State of California ) County of Fresno ) On June 7, 2013 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Kerri Donis, Deputy Chief/Fire Marshal, 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 -�L' A -- Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 4, 2011 , in the office of the Fresno County Recorder as Document No. 2011-0060807-00 of which the Deed of Trust in by and between: Copper River Southwest, Inc., a California Corporation as Trustor, First American Title Company as Trustee, and Housing Capital Company, a Minnesota Partnership as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Emergency Vehicle Access Facilities for the Final Map of Tract No. 5963. DATED: March 9, 2011 BENEFICIARY U.S. Bank National Association Successor in interest to Housing Capital Company, By: `! A Minnesota Partnership Name: Thomas G. Walker Title: Senior Vice President By: _ Name: Title: (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT cim cow$ iin State of California County of FRESNO On April 1 5, 201 3 before me, Apri 1 SP1 este Garci�,Notary Pub1 i n Date Here Insert Name and l tle of the Officer personally appeared Thomas G. Walker - Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons) whose name4) is/are subscribed to the within instrument and acknowledged to me that he/sWVlt ey executed the same in his/hexA-h& authorized capacity(ies), and that by his/het*Mr signatureEs} on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. APRIL CELESTE GAFiCIA NOTARY PUBLIC-CALIFORNIA I certify under PENALTY OF PERJURY under the COMMISSION#1986538 FRESNO COUNTY My Comm,Exp,July 29,2016 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: uu Place Notary Seal Above S'gnature 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(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 — L Limited I j General Top of thumb r,ere ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator Y ❑ Other: ❑Other: Signer Is Representing: — Signer Is Representing. - ©2010 Natrona Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on September 6, 2011 , in the office of the Fresno County Recorder as Document No. 2011-0117557-00 of which the Deed of Trust in by and between: Copper River Southwest, Inc., a California Corporation as Trustor, Financial Title Company as Trustee, and Housing Capital Company, a Minnesota Partnership as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development for Emergency Vehicle Access Facilities for the Final Map of Tract No. 5963. DATED: August 11, 2011 BENEFICIARY U.S. Bank National Association K1 � Successor in interest to Housing Capital Company, By: J'1_11 ` A Minnesota Partnership Name: Thomas G. Walker Title: Senior Vice President By: _..._ Name: Title: (attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT WIL CODE 31188 State of California County of FRESNO On April 15, 201 3 before me, Apr; 1 rel Pste Garcia,Notary Publi ct Date Here Insert Name and Title of the Officer personally appeared Thomas G. Walker Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(g) whose nam*) is/afe subscribed to the within instrument and acknowledged to me that he/sb@/Ahey executed the same in his/heh#h& authorized capacityoe6�, and that by his/her/ttreir signature .%) on the instrument the APRIL CELESTE GARCIA NOTARY PUBLIC-CALIFORNIA persor�s), or the entity upon behalf of which the �^ COMMISSION#1986538 FRESNO COUNTY persons) acted, executed the instrument. : My Comm.Exp.July 29,2016 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. I . Signature: Place Notary Seal Above Signatwn 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(ies) Claimed by Signer(s) Signer's Name: _ _ Signer's Name: Corporate Officer — Title(s): ❑Corporate Officer — Title(s): Ll Individual M. ❑individual ❑ Partner — _ I Limited J General Top of thumb here ❑Partner — C Limited ❑General Top of thumb here l Cl Attorney in Fact 0 Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: "2 - C 2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 Exhibit A Legal Description; Tract 5963 Emergency Vehicle Access That portion of Lots, 51 and 52 of the Final Map of Tract No_ 5963 according to t€ o map thereof recorded on war " 14 in Volume pages Ili, l70 IS_ of Plats Fresno County Records; described as follows: BEGINNING at a point on the East lime of said Lot 51 a distance of 1 .33 fleet North of the Northeast corner of said Lot. 52; thence North 00035'12" East, along the East: line of said Lot 51, a distance of 11.92 feet to an angle point on the East side of said Lot 51; thence North 01 142'54" Vilest, along the East line of said Lot 51, a distance of 8.09 feet; thence Southwesterly along a non-tangent curve, concave to the Southeast, whose radius point bears South 0112'03" West, having a radius of 60.00 feet, through a central angle of 13011'16", a distance of 13.81 feet, thence South 77000'47" West, a distance of 8.87 feet to the intersection with a non-tangent curve on the boundary of � id Lot 51 ; thence Southeasterly along said non-tangent curve, said non-tangent curve also being the boundary line to said Lots 51 and 52, concave to the West, whose radius point bears South 64120'13" West, having a radius of 45.50 feet, through a cental angle of 25°23'32", a distance of 20.16 feet; thence North 77000'47" East, a distance of 8.88 feet; thence Northeasterly al ng a tangent curve, concave to the Southeast, Navin a radius of 40.00 feet, through a central angle of 13027'37", a distance of 9.40 feet to the Point of Beginning.