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Home My WebLink AboutPM 2004-37 - Agreement/Covenant - 10/23/2014 WHEN RECORDED MAIL TO: City Clerk 10/23/2014,20140119815 City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 CITY OF FRESNO Development & Resource Management Department O U- Z P.W. File No. 5494-2004-37 O U W a LU J a STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT ACKNOWLEDGING FRESNO - YOSEMITE INTERNATIONAL AIRPORT OPERATIONS FOR PARCEL MAP NO. 2004-37 STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No. 2004-37 Page 2 RECITALS WHEREAS, HUMBERTO M. CONTRERAS AND EILEEN CONTRERAS, Husband and Wife, as Joint Tenants, 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 follows: Parcels A and B of Parcel Map No. 2004-37 according to the map thereof recorded in Book Z _ of Parcel Maps at Page(s) .56,1N0 .S f 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 ("City') for a Parcel Map No. 2004-37 which would subdivide the Subject Property into a 2-Parcel residential subdivision;and WHEREAS, the City 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 Parcel 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 desirability of the Subject Property,the surrounding property, and the public at large and to minimizQ 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 will run with the Subject Property and shall be binding on each successive owner of the Subject Property and his/her/its heirs, administrators, successors, and assigns. STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No. 2004-37 Page 3 1. Covenantor hereby covenants as follows: a. To notify any buyer, by the use of real estate disclosure statements, of the proximity 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's, General Plan-Noise Element adopted policy of 60 dBA CNEL for outdoor activity areas. C. To indemnify, hold harmless, and defend the City and each of its officers, agents, and employees from any and all loss, liability, costs, and damages, and from any and all claims, demands and actions in law or equity(including attorney's fees and legal expenses),arising or alleged to have arisen directly or indirectly out of or in any way connected with the approval of this residential project adjacent to the Fresno - Yosemite International Airport and within the 60 dBA CNEL or higher noise contour. 2. The conditions of this Statement of Covenant are intended to benefit the public and public properties. Accordingly, 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 Subject Property who directly or who through any agent violate the terms hereof. All obligations of the Covenantor under this Statement of Covenant shall inure solely to the benefit of the City. There are no third party beneficiaries of such obligations nor shall the right of the City be transferable in any manner to any person other than to a successor municipal corporation whose geographic boundaries include the Subject Property. 3. 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 STATEMENT OF COVENANTS Acknowledging Airport Operations Parcel Map No.2004-37 Page 4 procedure as pertaining to an award of contractual attorneys' fees. 4. 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 Covenant. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 5. The foregoing conditions and obligations shall remain in full force and effect until such time as the Development & Resource Management Department Director issues a written release of such conditions and obligations and records such release with the Fresno County Recorder. 6. 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 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. 2004-37 Page 5 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation HUMBERTO M. CONTRERAS AND EILEEN Development & Resource Management CONTRERAS, Husband and Wife, Department as Joint Tenants M&Fk-Seem,-F-Aer4�Director JenniferKOlark By. mlaerto . Contreras Jennif ( ark B , f Y: Eileen Contreras APPROVED AS TO FORM: �}AIbIEs�rE- E+#E� DOUGLAS T. SLOAN City Attorney A (Attach Notary Acknowledgment) By: - X�ie2�1QQ-R�ba fol- ;Mary Raterman-Doidge Deputy City Attorney Date: w�I�� ACKNOWLEDGEMENT State of California County of Fresno On —1� before me, Deanna Johnston — Notary Public, personally appeared dvm b -lo i'N �'o,n e Prr.S' ,�l e e,? ( 6?2�r e-r-4 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. DEWNA OHNSTON M(0Comm.# 1917065 'h ' NOTARY pUCLIC•CALIFOA}iIA FRESNO COUNTY my Cv1lx.Exv,dAH,iQ,2015" Signature. ,/,, -ea-IUf ZeaI} 7 Optional Information This Acknowledgement is attached to: r Dated / C?10 / 1 #of pages CLERK'S CERTIFICATION State of California) County of Fresno ) On September 11, 2014 before me, Cindy Bruer, Deputy City Clerk, personally appeared Jennifer K. Clark, Director of the Development and Resource Management 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 be 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), acted, executed the instrument. I certify under PENALTY OR 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 FRS By Deputy x 1 p o��-ori tii