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HomeMy WebLinkAboutT-5966 - Agreement/Covenant - 9/27/2010 (5) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 09 122 J 2010,2010012315 NO FEE—Government Code 6103 CITY OF FRESNO Public Works Department 0 P.W. File No. 11525 LL Z O V W U) a W J a STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY OFF-SITE STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 5966, PHASE 1 OF VESTING TENTATIVE MAP NO. 5966 Statement of Covenants Temporary Off-site Storm Drainage Facilities Tract No. 5966 Page 2 RECITALS WHEREAS, BN Hudson Ranch L.P.,a California Limited Partnership, 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: Outlot C of the Final Map of Tract No. 5966, according to the map thereof recorded on �=.dp+e_rnf" D3 , 201_0_ in Volume of Plats at Page(s) W1 + s1 D , 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. 5966, hereinafter referred to as "map," requires the provision and maintenance of temporary off-site 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 on the Subject Property to serve said map. 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 Statement of Covenants Temporary Off-site Storm Drainage Facilities Tract No. 5966 Page 3 Covenant shall run with the Subject Property and shall be binding upon and inure to the benefit of each successive ownerof the Subject Propertyand its respective his heirs,successors,and assigns during ownership thereof. 1. The Covenantor agrees that a portion of the Subject Property, more particularly described in the 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. The design of the temporary ponding basin,including fencing, shall conform to the Public Works Department Standard Speoifications and Drawings. The work shall be constructed pursuant to a grading permit issued by the Development and Resource Management Department. 3. The Public Works Department Director shall determine when such temporary storm drainage facilities are no longer required. Within sixty(60) calendar days after the Public Works Department Director notifies the Covenantor that such temporary storm drainage facilities are no longer necessary, Covenantor agrees, in accordance with grading plans prepared at the Covenantor's expense and approved by the Development and Resource Management Department, to obtain a grading permit from the Development and Resource Management Department to abandon such temporary storm drainage facilities. The abandonment of said temporary storm drainage facilities may include, but is not limited to, demolition and disposal of certain structures, fencing, backfilling, compaction and grading the Subject Property in accordance with said approved Statement of Covenants Temporary Off-site Storm Drainage Facilities Tract No. 5966 Page 4 grading plan. Compaction reports, provided at the Covenantor's expense, shall be required for backfilled areas. 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 indirectlyfrom 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 and exclusive risk of the Covenantor at all times prior to the release by the City of Fresno 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 Statement of Covenants Temporary Off-site Storm Drainage Facilities Tract No. 5966 Page 5 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. In the event that litigation is instituted to enforce or interpret any provision of this Statement of Covenant, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 9. 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 Temporary Off-site Storm Drainage Facilities Tract No. 5966 Page 6 DATED: EP' -fm4 jZ CITY OF FRESNO, COVENANTOR: a Municipal Corporation BN Hudson Ranch L.P., Public Works Department a California Limited Partnership Patrick Wiemiller, Director By: Bonadelle Homes, Inc., a California Corporation as the sole eneral Partner By: .. Scott Mozier, P.E., Assi nt Director By: A. Bonadelle, resident APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney i` r By: nnon eputy At rney Date: (Attach Notary Acknowledgments) STATE OF CALIFORNIA, COUNTY OF Fresno On SeptaTher 3, 2010 , before me, A-m M. Rem , a Notary Public, personally appeared .kms A. Bonadelle who proved to me on the basis of satisfactory evidence to be the person-A whose name( is/ate subscribed to the within instrument and acknowledged to me that he/&heAhey. executed the same in his/"^ i authorized capacity(ieiT, and that by his/kef4W44. 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 under the laws of the State of California that the foregoing paragraph is true and correct. (Notary seal or stamp) WITNESS my hand and official seal. Signatur `✓pFk ANNA M. RENNA COMM. #1759837 NOTARY PUBLIC-CALIFORNIA ~ • FRESNO COUNTY IFORNr My Comm.Expires Aug.30,2C I CLERK'S CERTIFICATION State of California ) County of Fresno ) On September 16, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, PE, 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 REBECCA E. KLISCH, CMC City Clerk, City of Fresno 4,{{ OF + o By n Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 3,2010 , in the office of the Fresno County Recorder as Document No.2010-0056413 of which the Deed of Trust in by and between: BN HUDSON RANCH,L.P.,A CALIFORNIA LIMITED PARTNERSHIP as Trustor, FIRST AMERICAN TITLE INSURANCE 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 Temporary Off-site Storm Drainage Facilities for The Final Map of Tract No. 5966, Phase 1 of Vesting Tentative Map No. 5966_ DATED: I bl& 61 l� BENEFICIARY By:tAly '_cam - Jason Subia Vice President Housing Capital Company By: (Beneficiary to print/type document info, Name and Title;and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Californiar - County of_-M&WV_ On `� OM before me, / lh d 'vU( Date H�erreInVrt Name and Title of the Officer personally appeared �� 1 "`""& ` Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(&) whose name(-&) is/are subscribed to the within instrument and acknowledged to me that he/sheAhey-executed the same in his/her/their authorized RHONDA HAROLD capacity(ies), and that by his/4er/th94 signature(g) on the Commission # 1701479 Notary Public -California instrument the person(s), or the entity upon behalf of Fresno County = which the person(s) acted, executed the instrument. WComm.boesOct 28,2010 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. Signature— 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(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—❑ Limited ❑ General fill_ ❑ 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: 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827 APN 578-010-14 (Portion) Temporary Ponding Basin Area EXHIBIT "A" That portion of the Southeast Quarter of the Northwest Quarter of Section 13, Township 12 South, Range 20 East, Mount Diablo Base and Meridian, described as follows: Beginning at a point on the West line of said Southeast Quarter, said point also being the Southeast corner of Lot 12 of Tract 5110, recorded in Volume 68, Pages 82 and 83 of Plats, Fresno County Records; thence Easterly along a non-tangent curve, concave to the North, whose radius point bears North 00032'15" East, having a radius of 475.00 feet, through a central angle of 04021'26", a distance of 36.12 feet; thence North 86110'49" East, a distance of 112.87 feet, thence Easterly along a tangent curve, concave to the South, having a radius of 525.00 feet, through a central angle of 02016'13", a distance of 20.80 feet; thence North 88027'02" East, a distance of 144.11 feet; thence Northeasterly along a tangent curve, concave to the Northwest, having a radius of 48.00 feet, through a central angle of 22007'57", a distance of 18.54 feet; thence along a reverse curve, concave to the Southwest, whose radius point bears South 23040'55" East, having a radius of 47.00 feet, through a central angle of 134035'10", a distance of 110.40 feet; thence along a reverse curve, concave to the East, whose radius point bears South 69005'45" East, having a radius of 48.00 feet, through a central angle of 6007'38", a distance of 5.13 feet to the TRUE POINT OF BEGINNING; thence continuing Southerly along last said reverse curve, having a radius of 48.00 feet, through a central angle of 16100'19", a distance of 13.41 feet; thence South 01013'42" East, a distance of 2.99 feet; thence South 46023'20" East, a distance of 17.63 feet; thence North 88027'02" East, a distance of 82.50 feet; thence South 01013'42" East, a distance of 50.00 feet; thence South 88027'02" West, a distance of 82.50 feet; thence South 43°36'40" West, a distance of 17.73 feet; thence South 88146'18"West, a distance of 50.00 feet; thence North 01013'42"West, a distance of 91.23 feet; thence North 88046'18" East, a distance of 51.86 feet to the TRUE POINT OF BEGINNING. Contains an area of 9,476 square feet, more or less. EXHIBIT "B" 1Q A = 04'21'26' Q2 = 0716'13" Q3 = 22'07'57' R= 475.00' R= 525.00' R= 48.00' L= 36.12' L= 20.80' L= 18.54' Ll ® A = 134'35'10' L = 6'07'38' © L = 16'00'19' N R= 47.00 R= 48.00 R= 48.00 L= 110.40' L= 5.13' L= 13.41' SCALE: 1' = 100' tr C: 100 75 50 25 0 100 I to `x LSI (5 RACES LL, >-} y Q vx v �-�! W E. - MI fav R1 = S 69'05'45" E o� o R2 = S 75'13'23" E -L) o, \sus Z)Ld POINT OF BEGINNING �c^ Z :,wsO J I H = N 8827'02" E w W {:} w N 8610'49" E O 144.11' O 112.87' N + 2 o PARCEL 1 5 �?-14-'' U EAST F4 o EAST PRESTWICK AVENUE TRUE POINT N PRESTWICK M o OF BEGINNING AVENUE o " `n i S 46'23'20' E N 88'27'02" E Z N 88'46'18" E Y A 2 17.63' rY 51.86' 82.50' ' h.. C-4EAST. -S 01'13'42" E CN PRES7MACK' 50.00' P') AVENUE rt o S 88'27'02" W I z 82.50' S 43'36'40" W S 88'46'18" W 17.73' : , 50.00' = L; .0,0. THE WEST UNE OF THE SE 1/4 OF Z THE NW 1/4 OF SEC. 13 T 12 S, R 20 E, M.D.B. & M. RECORD OWNER: PREPARED BY: A.P.N. 578-010-14 GARY GIANNETTA HATCHED AREA DEPICTS TEMPORARY BN HUDSON RANCH L.P. 1119 'S' STREET iy PONDING BASIN 7030 NORTH FRUIT AVE. STE 101 FRESNO, CA. 93721 !`! AREA = 9,476 SO. FT. FRESNO, CA. 93711 (559) 264-3590 (559) 435-9700 INTERNATIONAL AVENUE EAST _ _ - - - REF. & REV. CITY OF FRESNO PROJ. ID. ---------- FUND N0. _-_______ ORG. N0. __----_--- A PORTION OF THE NORTHWEST QUARTER OF SECTION 13, T 12 DR. BY: HYL SHEET NO. S, R 20 E. M.D.B. & M. FOR: CH BY: OF 1 SHEET DATE: 8/30/10 TEMPORARY PONDING BASIN I SCALE: AS NOTED