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Home My WebLink AboutT-5482 - Agreement/Covenant - 4/22/2010 (4) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 04/22/2010120100051588 NO FEE - Government Code 6103 CITY OF FRESNO 0 Planning and Development Department LL Z O 0 LU w 0. STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT ACKNOWLEDGING RIGHT-TO-FARM LAW FOR THE FINAL MAP OF TRACT NO. 5482 Statement of Covenants Affecting Land Development Acknowledging Right-to-Farm Law Tract No. 5482 Page 2 RECITALS WHEREAS, K. HOVNANIAN AT FRESNO, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, 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 1 through 79, inclusive, and Outlot A of Tract No.5482 according to the map thereof recorded on Ajorr / .?bt , 20 10 in Volume of Plats at Page(s)44, 4S t 46 , Fresno County Records; and WHEREAS, the Covenantor hereby warrants that any and all parties having record title interest in the Subject Propertywhich 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 filed and the City of Fresno has approved, Vesting Tentative Map No. 5482 for a 79-lot single family residential development project with one outlot for pedestrian and bicycle purposes, hereinafter referred to as the "Tentative Map;" and WHEREAS,the Covenantor has filed with the City of Fresno a Final Map of Tract No.5482, hereinafter referred to as the "Final Map," pursuant to said Tentative Map; 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. Statement of Covenants Affecting Land Development Acknowledging Right-to-Farm Law Tract No. 5482 Page 3 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 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 declared policy of Fresno County is to preserve, protect, and encourage development of its agricultural land and industries for the production of food and other agricultural products and that the subject property is near agricultural districts which are located in the County of Fresno and that the residents of said property should be prepared to accept the inconveniences and discomfort associated with normal farm activities. Consistent with this policy, California Civil Code §3482.5 (right-to-farm law) provides that an agricultural pursuit, as defined, maintained for commercial uses shall not be or become a nuisance due to a changed condition in a locality after such agricultural pursuit has been in operation for three years. 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 Statement of Covenants Affecting Land Development Acknowledging Right-to-Farm Law Tract No. 5482 Page 4 geographic boundaries include the Subject Property. 3. The foregoing conditions shall remain in full force and effect until such time as the City of Fresno, pursuant to the district amendment procedure of the Fresno Municipal Code, finds the enforcement of such condition is no longer equitable. 4. In the event that litigation is instituted to enforce or interpret any provision of this Statement, the parties agree that the prevailing party shall be paid reasonable attorney's fees,costs and litigation expenses. 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 Affecting Land Development Acknowledging Right-to-Farm Law Tract No.5482 Page 5 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation K. HOVNANIAN AT FRESNO, LLC, Planning and Development Department a California Limited Liability Company John M. Dugan, AICP, Director By: K. Hovnanian Development of California, Inc. A California Corporation, Its Sole Member i B?e4rry��06h'&p, Assi ant Director Richar . Balestren, Vice President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: annon ffin C' torney 2 Date: (Attach Notary Acknowledgment) State of California County of Sacramento On January 4, 2010 before me, Terrie Lackner, Notary Public personally appeared Richard J Balestreri who proved to me on the basis of satisfactory evidence to be the person(} whose name(s) is/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/fie reir authorized ca pacity(ties), and that by his/her/the; signature() 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. 7E'RftIE LACKNER r ,. Conunl:aian i 1822937 .� Notary 9ubiic•CiillarNa Signature ��.c-� (Seal) �n`�"'�� 2812 Cone. CLERK'S CERTIFICATION State of California ) County of Fresno ) On March 19, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Jerry D. Bishop, Assistant Director, 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 OF fA�,�� By s Deputy �. % , *fFe oto.� SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on October 27, 2008, in the office of the Fresno County Recorder as Document No. 2008-0149388 of which the Deed of Trust is by and between: K. Hovnanian at Fresno, LLC, successor-in-interest to K. Hovnanian Communities, Inc, as Trustor, Chicago Title Insurance Company, as Trustee, and Wilmington Trust Company, successor-in-interest to Deutsche Bank National Trust Company,pursuant to that certain Assignment recorded on October 9, 2009, as Instrument No, 2009-0140684, in the Office of the Fresno County Recorder,as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development Acknowledging Right-to-Farm law for the Final Map of Tract No. 5482. DATED: 20 _ BENEFICIARY WILMINGTON T"ST COMPANY By: - Name: Patrick J. Healy Title: vice President ,41<,4 Pw+f,ck- ttec.c y (Beneficiary to printAtype document information,Name,Title and attach Notary Acknowledgment) Farm.2d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: I CERTIFY that on the 12 day of January, 2010, before me, the undersigned, personally appeared PATRICK HEALY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. W AL kF ''.. •',ia(S �' LEAH M.WALKER �P ° = Notary Public-State of Delaware _ My Comm. Expires March 31, 2010 _ •s'�rarav�� `' rq7'E C)F GGA SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on February 9, 2009, in the office of the Fresno County Recorder as Document No. 2009-0017031 of which the Deed of Trust is by and between: K. Hovnanian at Fresno, LLCG; successor-in-interest to K. Hovnanian Communities, Inc, as Trustor, Chicago Title insurance Company, as Trustee, and Wilmington Trust Company,-suesessef-i+�-ieteres �7e ssiie-B -NatiqRal Trust Company, puFsbiaRt that-sera+►- F 9, 2009,-as -lmst>` t Ns-2W atimty eeeei; as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development Acknowledging Right-to-Farm Law for the Final Map of Tract No. 5482. DATED: 0_ 20 BENEFICIARY WILMINGTON TRUST COMPANY By: Name: Patrick J. Healy Title: Vice President � 1« Pu+i,c L o"-� (Beneficiary to printitype document information, Name,Title and attach Notary Acknowledgment) Farm.3d STATE OF DELAWARE ) COUNTY OF NEW CASTLE )SS.: I CERTIFY that on the day of January, 2010, before me, the undersigned, personally appeared PATRICK HEALY, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. WALKEER e �r - , '��; Notary Public-State of Delaware ry�;r� �•o$,; My Comm. Expires March 31 2010 sfar�oF�\``,