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HomeMy WebLinkAboutT-5358 - Agreement/Covenant - 12/3/2013 Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 WHEN RECORDED MAIL TO: City Clerk �f03I?.�13,�013016��44 City of Fresno 1 2600 Fresno Street Fresno, CA 93721-3603 cc O !L NO FEE -Government Code 6103 Z O CITY OF FRESNO U Development & Resource Management Department W U) a w CL CORRECTED STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT TO DISCLOSE THE POTENTIAL GOLF COURSE HAZARD FOR THE FINAL MAP OF TRACT NO. 5358 Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 Page 2 RECITALS WHEREAS, LEN NAR FRESNO, INC.,a California Corporation, hereinafter referred to as the "Covenantor,"is the owner of that certain 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: Lots 66 through 86, inclusive, and Outlot B of the Final Map of Tract No. 5358 according to the map thereof recorded on July 15, 2013, in Volume 83 of Plats at Page(s) 25 thru 29, Fresno County Records; and WHEREAS, On July 15, 2013, Covenantor recorded Document 2013-0098618 entitled STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT TO DISCLOSE THE POTENTIAL GOLF COURSE HAZARD FOR THE FINAL MAP OF TRACT NO. 5358, which contained typographical errors in Section 3. WHEREAS, Covenantor, with City of Fresno's consent, intend to correct the typographical errors by recording this CORRECTED STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT TO DISCLOSE THE POTENTIAL GOLF COURSE HAZARD FOR THE FINAL MAP OF TRACT NO. 5358. WHEREAS, 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; WHEREAS, the Fresno City Planning Commission on November 16, 2005 adopted Resolution No. 12351 conditionally approving Vesting Tentative Map No. 53581UGM, hereinafter referred to as the "Tentative Map;" Corrected Statement of Covenants Affecting Land Development Golf Course hazard Tract No. 5358 Page 3 WHEREAS, the Covenantor has applied to the City of Fresno for a Final Map of Tract No. 5358; WHEREAS, Riverside Municipal Golf Course, hereinafter referred to as the"Golf Course,"is owned by the City of Fresno and operated by Ebit Golf, Inc ("Operator"), and, abuts the east boundary of the Final Map of Tract No. 5358; WHEREAS,the Subject Property includes residential lots which are adjacent to or near Golf Course. WHEREAS, Inherent to the sport of golf is the risk and danger personal injury and property damage resulting from errant golf balls_ WHEREAS, Covenantor understands the risks associated with developing a residential subdivision adjacent or near to a golf course. WHEREAS, Golf Course is equipped with night lighting sufficient to accommodate certain aspects of the sport of golf. WHEREAS, Covenantor understands and acknowledges that said lighting may have an effect on the lifestyle of residents of dwelling units on the Subject Property. WHEREAS,condition 14 of the conditions of approval of Tentative Map 5358 require the City and Covenantor to execute a covenant which includes language advising the Covenantor and Subsequent Owners of the Subject Property (hereinafter "Subsequent Owners") of the risks associated with living adjacent to or near a golf course and which protects the City from liability in the event of personal injury or property damage resulting from golf activities lawfully occurring on or at the Golf Course. 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, Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 Page 4 usefulness,value, and desirability 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 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 acknowledges that the Subject Property abuts the Golf Course and that the operation of the Golf Course exposes the Subject Property to the potential danger from errant golf balls entering the Subject Property. 2. Covenantor, and each Subsequent Owner hereby agrees to hold City and Operator harmless from any and all personal injury or property damage resulting from errant golf balls coming from the Golf Course or nuisances caused by Golf Course lighting. 3. Covenantor, and each Subsequent Owner, agrees to indemnify and defend the City of Fresno and Operator, against any and all claims or causes of action brought by third party invitees or guests of Covenantor or Subsequent Owners, arising directly or indirectly as a result of errant golf balls coming from the Golf Course or Golf Course lighting. Said defense and indemnity shall on_ ly_be provided by the Covenantor or ap*by that particular Subsequent Owner for which the injured or damaged third party was a guest or invitee. 4. Except with respect to City or Operator employees acting within the course and scope of their employment, nothing in this Covenant shall constitute a waiver by Covenantor, or any Subsequent Owner from all rights and remedies available in law or equity against any individual or individuals causing the personal injury or damage. 5. 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 Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 Page 5 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. 6. The conditions and obligations of this covenant shall remain in full force and effect until such time as the City of Fresno, Development and Resource Management Department Director issues a written release of such conditions and obligations and records such release in writing with the Fresno County Recorder. 7. 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"oras"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. 8. 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. Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 Page 6 9. The provisions of this Statement of Covenants 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 one provisions hereof. Whenever the context of the Statement of Covenants so requires, in interpreting this Statement of Covenants, any gender includes the other genders, the singular includes the plural, and the plural includes the singular. Corrected Statement of Covenants Affecting Land Development Golf Course Hazard Tract No. 5358 Page 7 CITY OF FRESNO, a Municipal Corporation COVENANTOR Development& Resource Management Lennar Fresno, Inc., Department a California Corporation Jennifer K. Clark, Director 1 By. By: Je fer K. Clark, Director �ke Mlller, President Dated: OC 0- o?e? —70 0,0/9 Dated: APPROVED AS TO FORM: DOUGLAS T. SLOA City Attorney (Attach Notary Acknowledgment) By: Ila Kolluri-Barbie Deputy City Attorney Dated: �� OFFICIAL CALIFORNIA NOTARIAL CERTIFICATE Acknowledgment State of California ) County of Fresno) On �3before me, Christine Collins Notary Public personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare 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. F@ZHRISTIN COLLINS ry u f,c- 1gnature COMM.01959663 NOTARY PUBM•CAUFORW FRESNO COUNTY Comm.Exp.NOV.7,2015 ADDITIONAL INFORMATION DOCUMENT INFORMATION Document Date Number of Pages TYPE OF IDENTIFICATION [ ] Satisfactory Evidence - identification card [ ] One Credible Witness acknowledging identity of principal [ ] Two Credible Witnesses acknowledging identity of principal Copyright C 1994, All Rights Reserved,California School of Notary Public, Inc. CLERK'S CERTIFICATION State of California) County of Fresno ) On December 3, 2013, before me, Cindy Bruer, Deputy City Clerk, personally appeared Jennifer K. Clark Director of Development and Resource Mana ement 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 rr J " � FPR,,P By D u " ,*� o ti;