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Home My WebLink AboutPM 2004-36 - Agreement/Covenant - 10/23/2008 (3) WHEN RECORDED MAIL TO: 0 Z City Clerk U City of Fresno 2600 Fresno Street 1012312008,2008015005 W Fresno, CA 93721-3603 [li d W -j NO FEE - Government Code 6103 CITY OF FRESNO Planning and Development Department P.W. File No. 5494-2004-36 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT ACKNOWLEDGING FRESNO - YOSEMITE INTERNATIONAL AIRPORT OPERATIONS FOR PARCEL MAP NO. 2004-36 • STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No. 2004-36 Page 2 RECITALS WHEREAS, FANCHER CREEK PROPERTIES, LLC., a California Limited Liability Company, hereinafter referred to as the"Covenantor," is the owner of the real property in the City of Fresno, County of Fresno, State of California, hereinafter referred to as the "Subject Property" and more particularly described as: Parcel A through AQ, inclusive, and Outlots 1 and 2 of Parcel Map No. 2004-36 according to the map thereof recorded on t0chobe -- 20L—_ in Books of Pages(s) S' 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, the Covenantor has applied to the City of Fresno for a Parcel Map No. 2004-36 which would subdivide the Subject Property into a 43-parcel light industrial land use project, hereinafter referred to as the "Project"; and WHEREAS, the City of Fresno desires to obtain covenants from the Covenantor to insure that the Subject Property is not developed, used, or maintained in such a way as to adversely affect adjoining properties. COVENANTS, CONDITIONS, AND RESTRICTIONS For favorable action on, and approval of, the Covenantor's application for approval of said Final Map, 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, and desirabilityof 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 STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No.2004-36 Page 3 welfare. Each of the covenants, conditions, and restrictions contained in this Statement will run with the Subject Property and shall be binding on each successive owner of the Subject Property and his heirs, administrators, successors, and assigns. 1. Covenantor hereby covenants as follows: a. To notify any buyer, by the use of real estate disclosure statements, of the proxirnity of the Subject Property to the Fresno - Yosemite International Airport and that the operation of the airport may affect the habitability and quiet enjoyment of the Subject Property. b. To notify any buyer, by the use of real estate disclosure statements,that the Subject Property will be exposed to airport noise which may exceed the City of Fresno, General Plan - Noise Element adopted policy of 60 dBA CNEL for outdoor activity areas. C. To the furthest extent allowed by law, Covenantor shall indemnify, hold harmless and defend City and each of its officers,officials, employees,agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract,tort or strict liability,including but not limited to personal injury,death at any time and property damage) incurred by City, Covenantor or any other person, and from any and all claims, demands and actions in lawor equity(including attorney's fees and litigation expenses),arising or alleged to have arisen directly or indirectly out of performance of this Covenant or the approval of the Project adjacent to the Fresno-Yosemite International Airport and within the 60dBA CNEL or higher noise contour). Covenantor's obligations under the preceding sentence shall apply regardless of whether Covenantor or any of its officers, officials, employees or agents are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. 2. The conditions of this Statement are intended to benefit the public and public properties. Accordingly, 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 Subject Property who directly or who through any agent violate the terms hereof. All obligations of the Covenantor under this Statement shall inure solely to the benefit of the City of Fresno. There are no third party beneficiaries of such obligations nor shall the right of the City of Fresno be transferable in any manner to any person other than to a successor municipal corporation whose geographic boundaries include the Subject Property. 3. In the event that litigation is instituted to enforce or interpret any provision of this STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No. 2004-36 Page 4 Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 4. The foregoing conditions and obligations shall remain in full force and effect until such time as the Planning and Development Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 5. 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 enforceability of any other provision hereof. Whenever the context so requires, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No. 2004-36 Page 5 DATED: 1 CITY OF FRESNO, COVENANTOR a Municipal Corporation FANCHER CREEK PROPERTIES, LLC., a California Limited Liability Company By: - By: Kashian Enterprises, cA+»,FoRA+R Keit Bergthold, Ass{slant ector a imited Partnership, Planning and Development Department as Member APPROVED AS TO FORM: Edward M. Kashian, General Partner JAMES C. SANCHEZ City Attorney By: Africal Development, LLC., a California Limited Liability Company, By: as Member John W. Fox Deputy City Attorney Date: Cc(AA-,t Aj�j omas G. Ricliarcfs, Manager (Attach Notary Acknowledgment) STATE OF CALIFORNIA ) ss. COUNTY OF FI(e 5tnc ) On jJo,;e-m6-y- 1 t , 'ADD 7 , before me, "�❑u�, �o�atj Q�►101� personally appeared Erwa,rd' M 1�s�++�� , persona y known to me (or 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. WITNESS my hand and official seal. Notary Public in and "'Said S p STEVEN M.YOUNG '= COMM.#1466428 STATE OF CALIFORNIA ) NOTA FRESNO COUNTY UC-CAUFORMA ss. 4f comm.Eq.Jw.29,2948 COUNTY OF licyV o ) 6 �1 , --e, l. Ta 1Ont ,�WPm I� � ; �. �� , �i be re me, /Q �� 0 � , �. personally appeared �ikt7N1�� U-A 5 , personally known to me (or proved to me on tt:e- ,, ' to be the person(s) whose name(Ar) is/are,subscribed to the within instrument and acknowledged to me that he tky executed the same in hisAwr/heir authorized capacity(im), and that by hisArer/thy signature(&) on the instrument the person(&), or the entity upon behalf of which the person() acted, executed the instrument. WITNESS my hand and official seal. rAA Y6�A P;-V Q Notary Public in and f,ors 'd State LETA M.CIAVAGLIA COMM.#1581774 N N Notary Public-Camornla W o FRESNO COUNTY M comm.Exp.June 20,2009 2 160B98.1 CLERK'S CERTIFICATION State of California ) County of Fresno ) On October 10, 2008 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Keith Bergthold, Assistant Director of Planning and Development 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 By dtWi X&V Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on I I`2 7 `b1 , in the office of the Fresno County Recorder as Document No.2-001-02 12 Z,Li 3 of which the Deed of Trust in by and between: jMc., �c Goll- ,p&cs, LLG, a CAIfprvl�c� Ltrh&r6k (''DM4Q6X4, as Trustor, ]Eyno baU �`� c �O� y as Trustee, and ('UAY YCI\ GlLl+l L LAK' , A 4MW4ii l V-AVlka cf L g2Qrc,f1b✓1 , as Beneficiary,hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants for Acknowledging Fresno - Yosemite Internationl Airport Operations for Parcel Map No. 2004-36. DATED: 20 (7)6 BENEFICIARY{ By: IV,,� �" { .MSL�5 N•t• �� By: (Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment) 4 h , CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Placer f DD On January 22, 2008 before me, Wendy Todhunter , NdTAW pout. DATE NAME,TITLE OF OFFICER" personally appeared Thomas M. Lyrin-------------------------------------------------------------------- NAME(S) OF SIGNER(S) 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. WENDY TODHUNTER; COMM.#1755553 + NOTARY puBl IC•CALIFORNIA n /1 EQpLACER COUNTY ' [[ COMM.Exp.AUG.1,2011 SIGNATURE OF NOTARY This area for notarial seal OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNED DESCRIPTION OF ATTACHED DOCUMENT QINDIVIDUAL Subordination ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL '`OBER OF P GES ❑ ATTORNEY-IN-FACT •o��•.-CJ�( _ ❑ TRUSTEE(S) DATE OF DOCUMENT ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER(S)OTHER THAN NAMED ABOVE SIGNER IS REPRESENTING: