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HomeMy WebLinkAboutT-5555 - Agreement/Covenant - 12/12/2006 (3) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 D � � 110812006,20060258016 CD p NO FEE -Government Code 6103 Lj— V oU CITY of FRESNO Planning and Development Department STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT BUYER NOTIFICATION OF NOISE LEVELS AND HOLD HARMLESS FOR THE FINAL MAP OF TRACT NO. 5555 Statement of Covenants Buyer Notification of Noise Levels Final Map of Tract No. 5555 Page 2 RECITALS A. Grove Partners I II, LLC,a California Limited Liability Company, hereinafter referred to as"the Covenantors," are the owners 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 35, inclusive, of Tract No. 5555 according to the map thereof recorded on 1�ecel ►bgr $ , 200 to in Volume_— of Plats at Page(s) 34 �- 40 , Fresno County Records B. 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. C. All such instruments of Subordination, if any, are attached hereto and made a part of this instrument. D. The Covenantor has applied to the City of Fresno for a subdivision map which would subdivide the subject property into an 35-lot single-family residential project. E. 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 Final Map No. 5555 of Vesting Tentative Tract No. 5555 for the Subject Property as referred to herein above, 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 Statement of Covenants Buyer Notification of Noise Levels Final Map of Tract No. 5555 Page 3 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 covenants as follows: a. To notify any buyer, by the use of real estate disclosure statements, of the proximity of the property to the Burlington Northern and Santa Fe Railroad and that the operation of the railroad may affect the habitability and quiet enjoyment of the property. b. To notify any buyer, by the use of real estate disclosure statements, that each lot will be exposed to railroad 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, J{, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs, and damages (whether statutory, in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City in connection with any and all claims, demands and actions in law or equity(including attorney's fees and litigation expenses) arising from, resulting from, or in conection with the approval of residential unit lots adjacent to the Bulington Northern and Santa Fe Railroad and within the 65 dBA CNEL or higher noise contour. Covenantor's obligations under the preceding sentence shall apply regardless of wether CITY or any of its officers, officials, employees, agents or volunteers are actively or passively negligent, but shall not apply to any loss, liability,fines, penalties forfeitures, costs or damages caused solely by the active negligence or willful misconduct of the City or any of its officers, officials, employees, agents or volunteers F. 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 Statement of Covenants Buyer Notification of Noise Levels Final Map of Tract No. 5555 Page 4 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. G. 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. H. 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 Buyer Notification of Noise Levels Final Map of Tract No. 5555 Page 5 DATED: CITY OF FRESNO, COVENANTOR a Municipal Corporation GROVE PARTNERS III, LLC, a California Limited Liability Company By: Generation Homes Inc. a California Corporation, Its Manager By: is Yovino, Director d Development Department By: .Tj OjIffo Ro ert . Wood, President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: . I Y) "4)r Deputy (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ;:~no On before me, .fitM �Ilvl1��f rw�c.. /�/o��.•'i, f��J a is Date �✓ Name and Title of Office e.g., Jane Doe,Nota Public") personally appeared /1 o1't�•'�" L G✓d� ' Name(s)of Signer(s) personally known to me ❑ (or proved to me on the basis of satisfactory evidence) JWWDAVIDI p� to be the person(s)whose name(s)is/are subscribed to the �ftOA - aftmi within instrument and acknowledged to me that No1ay 1UbIc-CdMdr�lo Rwwio he/she/they executed the same in his/her/their authorized LaMChb 1.'01 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. Place Notary Seal Above nature of otary Public OPTIONAL Though the information below is not required by law, it may prove valuable to pe ns relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General _ ❑ Partner — ❑ Limited ❑ General F-1Attorneyin Fact ❑Attorney in Fact • El Trustee El Trustee Top of thumb here Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2006 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827 SUBORDINATION The undersigned, as holder of the beneficial interest in and under that certain Deed of Trust recorded June 9, 2006, in the office of the Fresno County Recorder as Document No. 2006-0120919, of which the Deed of Trust in by and between: GROVE PARTNERS III, LLC, a California limited liability company, as Trustor, AMERICAN SECURITIES COMPANY, a California corporation, as Trustee, and WELLS FARGO BANK, N.A., a national banking association, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development Buyer Notification of Noise Levels and Hold Harmless for the Final Map of Tract No. 5555. Dated: October 20, 2006 BENEFICIARY: WELLS FARGO BANK, N.A., a national banking association By: Its: Its: r /) ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTYOF LDf -Allo du ss. ) On b/U )0� , before me, CcirmYn WYntr- Notar pt4 Li , personally appeared S eLMUA LPe shepherd and ill 1 a , personally known to me ) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that hefsheithey executed the same in hls/hei heir authorized capaciVies), and that by*i~their signatures 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. CARMYN =1-CK Commlalon 1544891 cditmw OTARY PUBLIC La Mp�ler County My Comm.ExpMet Jan 15,awi CLERK'S CERTIFICATION State of California) County of Fresno) On November 29. 2006 , before me, Elvia Sommerville , Deputy City Clerk, personally appeared, Nick P. Yovino. Planning and Development Director, personally 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 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), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK, CMC By Deputy