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Home My WebLink AboutT-6139 - Agreement/Covenant - Temporary Street Facilities - 8/22/2017 RECORDING REQUESTED BY IIII III I IIII II II II IIII I II IIIII IIII I IIII III��III AND WHEN RECORDED MAIL TO: FRESNO County Recorder City Clerk Paul Dictos, C.P.A. City of Fresno DDC— 2017-0105006 2600 Fresno Street 1 Acct 8003-North American Title Concord Fresno, CA 93721-3603 Tuesday, AUG 22, 2017 08:00:00 Tt 1 Pd $0.00 Rcpt # 0004829465 RGR/R4I1-9 NO FEE-Government Code 6103 CITY OF FRESNO Public Works Department P.W. File No. 12059 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR TEMPORARY STREET FACILITIES FOR THE FINAL MAP OF TRACT NO. 6139, PHASE 1 OF VESTING TENTATIVE MAP NO. 6139 Statement of Covenants for Temporary Street Facilities Tract No. 6139 Page 2 RECITALS WHEREAS, LENNAR HOMES OF CALIFORNIA, 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 as: Outlot A of the Final Map of Tract No. 6139 according to the map thereof recorded on At .9.2 r -20 Ir? in Volume fir' of Plats at Page(s) l -t'hru 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. 6139, hereinafter referred to as the "Map," requires the provision and maintenance of temporary off-site street facilities to provide a public turn-a-round on the Subject Property on the east end of West Hammond Avenue until such time that permanent street facilities are made available; and WHEREAS, the Covenantor and the City of Fresno desire to enter into an agreement providing for such temporary off-site street 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 shall run with the Subject Property and shall be binding upon and inure to the benefit Statement of Covenants for Temporary Street Facilities Tract No. 6139 Page 3 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 shown on Exhibit "A" shall be used for temporary street purposes until the City releases the Subject Property from such use. The Covenantor agrees to construct and maintain such temporary street facilities 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 not restrict public access across the Subject Property during the term of this covenant. 2. The temporary street facilities shall be constructed to conform to the improvement plans prepared at the Covenantor's expense and approved by the City Engineer. The design of the temporary street facilities, including any related improvements and work, shall conform to Public Works standard specifications and shall meet minimum standards for a local street, including turning radiuses, or in conformance with an approved engineered design for the intended use. The work shall be constructed pursuant to a Street Work Permit issued by the Public Works Department. 3. This Statement 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 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, 3 Statement of Covenants for Temporary Street Facilities Tract No. 6139 Page 4 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 temporary street 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 street facilities and other improvements thereon and therein. 5. The conditions of this Statement are intended to benefit both the Subject Property, the public and public properties. Accordingly, it is agreed the City of Fresno shall have the right to enforce this Statement 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. 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 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. 7. 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 y Statement of Covenants for Temporary Street Facilities Tract No. 6139 Page 5 Covenant. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 8. The foregoing conditions and obligations of this Statement shall remain in full force and effect until such time as the Public Works Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. Such release will be conditioned on the removal of the temporary street facilities in the manner acceptable to the City Engineer. The Covenantor agrees to reimburse the City for reasonable costs associated with the preparation and recordation of said release. 9. The provisions of this Statement 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 so requires, in interpreting this Statement, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. 1 Statement of Covenants for Temporary Street Facilities Tract No. 6139 Page 6 DATED: CITY OF FRESNO, COVENANTOR: a Municipal Corporation LENNAR HOMES OF CALIFORNIA, INC., Public Works Department A California Corporation Scott Mozier, P.E., Director By: By: Andrew J. Benelli, E., Assistant Director Kfike Miller, Vice President APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney (Attach Notary Acknowledgment) By: ry Raterman-Doidge Deputy City Attorney Date: ��[ ACKNOWLEDGMENT 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 document. State of California County of Fresno ) On June 1. 2017 before me, Christine Collins, Notary Public (insert name and title of the officer) personally appeared Mike Miller , 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. CHRISTINE COLLINS Commission#2131344 a -m Notary Public-California D !' z Fresno County My Comm. Expires Nov 7,2019 J Signature � (Seal) 1 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 document CLERK'S CERTIFICATION State of California ) County of Fresno ) On August 7, 2017 before me, Cherisea Barnes, Deputy City Clerk, personally appeared, Andrew J. Benelli, P.E., Assistant Director of Public Works 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 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 OF.F • 4��y RFs z n w M1• B 4lED 00. Deputy. T77-1100 o� ,pa PPS C1 N , 1 WEST HAMMOND T.P.O. R=259*4 AVENUE --=L=�2 2�;oo" �.. c2 tK. P.O.C. NORTHEAST COR LOT 13 CURVE TABLE RADIAL TABLE CURVE RADIUS DELTA LENGTH RADIAL BEARING R1 N0720'48"W C1 48.00' 39'52'30" 33.41' R2 N40-13'1 9"W 1 1'� _40. C2 48.00' 39'52'30" 33.41' R3 NO'20'48"W 639 , F GR R4 N39'31'43"E gRP�S.. y LINE TABLE LINE BEARING DISTANCE L1 NO'20'48"W 36.00' L2 NO'20'48"W 7.00' SCALE. 1" = 40' WEST OLIVE AVENUE o' 20' 40' SOUTH LINE OF THE NORTHWEST LEGEND.. 1/4 OF THE SOUTHWEST 1/4 OF TEmPaRgRY "TURN AAOUNc SEC71ON 9, T.13S., R.19E. PREVIOUSLY DEDICATED FOR PUBLIC ROAD . PURPOSES PER TRACT NO. 6139 NOTE: F.C.R. FRESNO COUNTY RECOHUS ALL BEARINGS, DISTANCES AND AREAS PER OR O.R.F.C. OFFICIAL RECORDS FRESNO COUNTY CALCULATED FROM RECORD DATA PER THE MAP P.O.C. POINT OF COMMENCEMENT OF TRACT NO. 6139. T.P.O.B. TRUE POINT OF BEGINNING PRal Of CITY OF FRESNO FUND,0 DEPARTMENT OF PUBLIC WORKS aRo EXHIBIT A °"e" — SHUT NO. TEMPORARY TURN-AROUND °i er. _. of 1 s,errs acre: scolE F:\2015\15-410 dvrg\Exhibits\Easement Olagrams\15=410_TTA—EAS.dwg