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HomeMy WebLinkAboutT-6067 - Agreement/Covenant - 6/30/2016 (6) i fC F S 1 . '� ~�'R6 ,vO IN 11i l IN 1111111111111111111111111111111111111 WHEN RECORDED MAIL TO: FRESNO bounty Recorder Paul Dictos, C.P,A. DOC— 2016-0079836 City Clerk pct 55-First American Fresno ER City of Fresno Wednesday, JUN 22, 2016 08:00:00 2600 Fresno street Tt 1 P 0.00 Rcyt # 0004556430 Fresno, Ca 93721-3693 K EIR311-9 NO FEF-Government Code 6103 ' CITY OF FRESNO Public Works Department P.W. File No. 11948 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY. STORM DRAINAGE FACILITIES FOR THE FINAL MAP OF TRACT NO. 6067 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6067 Page 2 RECITALS WHEREAS, BNCOPP, 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; Lots 4, 5, 19 and 20 of the Final Map of Tract No. 6067 according to the map thereof recorded on 2-0r45 117- ► UiU in Volume 949 of Plats at Page(s) -1 Ar►D B Fresno County Records; and WHEREAS, the Covenantor hereby warrants that any and all parties having record title interest in the Subject Propertywhicli may r€pen 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 far Vesting Tentative Map No.6067,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 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6067 Page 3 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 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 City of Fresno(Development and Resource Management Departmenty. 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 temporarystorm 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 Statement of Covenants Temporary Storm drainage Facilities Tract No. 6067 Page 4 grading plan; compaction reports, provided at the Covenantor's expense, shall be required for backfilled areas. Covenantor, in accordance with grading pians (and other improvement plans as 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 Statement of Covenants Temporary Storm Drainage Facilities Tract No- 6067 Page 5 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 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. B. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Statementof 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 [imitation, 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"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 Statement of Covenants Temporary Storm Drainage Facilities Tract No. 6067 Page 6 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. Waiverof 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. 6067 Page 7 DATED: X204A CITY OF FRESNO, COVENANTOR: a Municipal Corporation BNCOPP, L.P., Public Works Department A California Limited Partnership Scott Mozier, P.E„ Director By. ° By, Andrew J. Benf P.17—, Assistant Director . Bonadelle, President APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney r By: Mary aterman-Doidge Deputy City Attorney Date: 1 (Attach Notary Acknowledgments) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this tertifcate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, o validity of that document. STATE OF California }SS APN No: CDUNTY OF FbEsm } On Affil 22, 2A6 before me, Ara». M. RRerm , Notary Public,personally appeared John A. Borailpffie who proved to me on the basis of satisfactory evidence to be the person(I whose name{} is;—w subs[ribed to the within instrument and acknowledged to me that he/sk4t4ey executed the same in his/helyt#eir authorized capacity(;es), and that by hisliper}th r signature{} on the instrument the personit}, or the entity upon behalf of which the person(} acted, executed the instrument. I certify under PENALTY OF PERJURY under the Saws-of the State of California that the foregoing paragraph is true and correct. WITNESS y had and offi seal. ANNA M RENNA SinatLlr L NCyARy pUSLIC•CALIFQRNIA . g COMMISSION#2122004 Ory FR E S NO C Ott NTY IAy Comm.Exp August 301,201 This area for official notarial seal. OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data bejow, doing so may prove invaluable to persons relying on the documents. ❑ IN[)IVIDUAL [� CORPORATE OFFICER(S) TITLE(S) r7PARTNER(S) F-1LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRLISTEE(5) ❑ GLiARDiANICONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES ELATE OF DOCUMENT SIGNER(5) OTHER THAN NAMED ABOVE Reproduced by First American Tale Company 11/2007 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that CLERIC'S CERTIFICATION State of California ) County of Fresno } On May 25. 2096 before me, Cindy J. Bruer, Deputy City Clerk, personally appeared, Andrew J. Benelli Assistant Director of the Public Works Department 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 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 persons), or the entity upon behalf of which the person(s) acted, executed the instrument_ 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 sea[ YVONNE SPENCE, GMC City Clerk, City of Fresno F• FRFs+ By t DY .- o o r • �0 vti. T�rip arc