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HomeMy WebLinkAboutT-6037 - Agreement/Covenant - 10/25/2013 (5) WHEN RECORDED MAIL TO: 10/23/2013,20130148097 City Clerk City of Fresno 2600 Fresno Street Fresno, Ca 93721-3603 NO FEE—Government Code 6103 wt CL CITY OF FRESNO U. Public Works Department 0 P.W. File No. 11716 W V] d W J a STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 6037, PHASE 2 OF VESTING TENTATIVE MAP NO. 5597 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6037 Page 2 RECITALS WHEREAS, GRANVILLE AT BARSTOW, 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. 5597, 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. 6037 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 Cityof 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 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6037 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. 6037 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 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 parry's attorneys in the course of the representation of the prevailing parry 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. 6037 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. Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6037 Page 7 DATED: 1�"��� zo CITY OF FRESNO, COVENANTOR: a Municipal Corporation GRANVILLE AT BARSTOW, INC., Public Works Department A California Corporation Patrick Wierniiller, Director By: _ By: Scott Mozier, P.E., Assi ant Director Darius Assemi, Senior Vice President APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Taloa Kollu '-Barbick (Attach Notary Acknowledgments) Deputy City Attorney Date: ��] Z13 CLERK'S CERTIFICATION State of California ) County of Fresno ) On October 11, 2013 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, 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 Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal YVONNE SPENCE, CMC City Clerk, City of Fresno OF FBF t ❑ B y � Fa os■•' Deputy CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT cion CODE§ 1189> State of California �1 County0f . O 2q2013 before me, ,� 4 C .A)o .1�c_ { Gale Here Inse..Name and Title of the Officer personally appeared 5 who proved to me on the basis of satisfactory i� evidence to be the person(5j whose names} is/are subscribed to the within instrument and acknowledged to me that he/she/My executed the same in hisAzI\, their 'authorized capacity(ies�, and that by his/4erttMir signaturefs) on the instrument the �� APRIL CELESTE GARCIA erso or the entity upon behalf of which the NOTARY PUBLIC-CALIFORNIA P � Y P ® COMMISSION#1988638 person(sj acted, executed the instrument. FRESNO COUNTY My Comm.Exp.July 29,2018 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. r� WITNESS my hand and official seal. 4 Signature: .O ., Place Notary Seal Above MgFkuie of Notary Pu„lic 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: Y Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Ci Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Individual ❑ Individual ❑ Partner —©Limited ❑General Top of thumb here ❑Partner — Cl Limited ❑General Top of thumb here CI Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator D Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2010 National Notary Association•NationalNotary.org-1-800-US NOTARY(1-800-876-6827) Item#5907 Exhibit A Legal Description Tract 6037 Temporary Ponding Basin That portion of the Northeast Quarter of Section 8, Township 13 South, Range 19 East, Mount Diablo Base and Meridian, described as follows.- Commencing at the Northeast corner of Outlot A of Tract No. 5597, recorded in Volume 8 2, page 66 and 67 of Plats, Fresno County Records; thence South 72022'46" East, along the boundary of said Tract No. 5597, a distance of 60.00 feet; thence Northeasterly along a non-tangent curve, concave to the Southeast, whose radius point bears South 72022'46" East, having a radius of 470.00 feet, through a central angle of 7013'47", a distance of 59.31 feet; thence Northeasterly along a reverse curve, concave to the Northwest, having a radius of 530.00 feet, through a central angle of 24051'23", a distance of 229.93 feet; thence North 0°00'22" West, a distance of 93.80 feet to the TRUE POINT OF BEGINNING; thence North 89059'38" East, a distance of 250.00 feet; thence North 0000'22" West, a distance of 355.00 feet; thence South 89059'38" West, a distance of 250.00 feet; thence South 0100'22" East, a distance of 355.00 feet to the TRUE POINT OF BEGINNING. ��QROFEssiQ,� i 4_117 u~ `C . 26996 t IVI OF S 89'59'38" W S 89'59'38" W 310.00' I %C. ,� .`S 89'E9'38" W 250,':" cq � o o I ao a ro I I f'As4C� 3 z I i a o o 1 Co w 3 O a N N .N Z N N I p O 0 o S 89'59'38" W 250.00' I O p I Z M TRUE POfNT OF BEGINNING � I PARCm— 4 I I v LQ' rTl `1 C 26996 �. ParlT cL +MElualvr, — s _ s (R�� civilL ' OF CA>1F�C SCALE: 1' 150' I 150 100 50 0 1 F] OUTI.OT e 1, G 07-13'47' Q2 = 251'23" R- 470.00' - 530.00' L- 59.31' L 229.93' �- ------A Q = 2451'23" ® � = 07-13'47" BuA:�r THE CENTER 1/4 CORNER R= 470.00' R= 530.00' OF SEC. 8 T 13 S. R 19 E. L- c03.90' pL-X66.88' M.D.B. & M. RtfV1p11 nuatM PIMPAM BY: DEPICTS TRACT 666 ADDITION RG1Mw Vt�GR: A P,N.. 505-040-13 GARY GIANNEITA TO TEMPOF�.R'�' PON�tiI�+v BASIN AREA = 88,750 S4. Fi. RANYUE AT BAJMO'W, W. 1119 ^3" STREET 1396 W. HERN("I AVE. STE 101 FRESNO, CA. 93721 DEPICTS TRACT 5597 FRESNO, CA. 93711 (559) 264-3590 �---' TEMPORARY PONDING BASIN (559) 436-0900 REF. . RB- - CITY OF FRESNO FUND NO�.;�Nfl NO. _ ORG. NO. A PORTION OF THE NORTHEAST OIJARTFR OF SEC--17:--' 3, T 13 S. DR. BY; HrL SHEET NO. 1 R 19 E, W FOR: CH BY: q OF I SHEET �p�p DATE: 10/22/12 TEMPORARY PONDING BASIN SCALE: AS NOTED