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Home My WebLink AboutT-5995 - Agreement/Covenant - 9/8/2011 (3) WHEN RECORDED MAIL TO: City Clerk ��8�2�11,20110118661 09 City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 NO FEE - Government Code 6103 Development & Resource Management Department Development Services Division LL P.W. File No. 11571 Z O U W U) a w CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT ACKNOWLEDGING SIERRA SKY PARK AIRPORT OPERATIONS FOR THE FINAL MAP OF TRACT NO. 5995, PHASE-2 of VESTING TENTATIVE MAP NO. 5983 STATEMENT OF COVENANTS Acknowledging Airport Operations Tract No. 5995 Page 2 RECITALS WHEREAS, 5983 ENTERPRISES, LP, a California Limited Partnership, 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: Lots 1 through 44, inclusive, and Outlots A through H, inclusive, of the Final Map of Tract No. 5995 according to the map thereof recorded on S,-n+eJnLnej- $, eQ61/ in Volume ;T.2 of Plats at Pages(s) /17 t 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 Final Map of Tract No. 5995 which would subdivide the Subject Property into a 44-lot gated private street planned development and 8-Outlots for private road, private landscaping, private walkway and public utility purposes; 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 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 STATEMENT OF COVENANTS Acknowledging Airport Operations Tract No. 5995 Page 3 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. 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 Sierra Sky Park Airport, the likelihood of aircraft overflights over the Subject property 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 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 Sierra Sky Park 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" STATEMENT OF COVENANTS Acknowledging Airport Operations Tract No. 5995 Page 4 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 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 and 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. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On July 29, 2011 before me, Patricia L. Gavello, Notary Public, personally appeared Leo A. Wilson, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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. PATRICIA L. GAVELLO WITNESS my hand and official seal. COMM. #1864607 Q,0�32.!? NOTARY PUBLIC•CALIFORNIA FRESNO COUNTY My Comm.Explres October 9,2013 Signature of Notary Public STATEMENT OF COVENANTS Acknowledging Airport Operations Tract No. 5995 Page 5 DATED: U CITY OF FRESNO, COVENANTOR a Municipal Corporation 5983 ENTERPRISES, LP, Development & Resource Management a California Limited Partnership Department Mark Scott, Interim Director By: WILDEV, INC., a California Corporation its General Partner By: / By: Mark Scott, Interim Director Leo A�/n, resident APPROVED AS TO FORM: (Attach Notary Acknowledgment) JAMES C. SANCHEZ City Attorney r By: a�� l ffin u orney Date: �l CLERK'S CERTIFICATION State of California ) County of Fresno ) On August 29, 2011 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Mark Scott, Interim Director, Development & Resource Management 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 Fqt i By1A�r�o Deputy SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on June 23, 2011 in the office of the Fresno County Recorder as Document No. 2011-0083665-00 of which the Deed of Trust in by and between: 5983 Enterprises LP, a California limited partnership, as Trustor, First American Title Company, as Trustee, and Housing Capital Company, a Minnesota partnership, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Agreement For Acknowledging Airport Operations for the Final Map of Tract No. 5995, Phase 2 of Vesting Tentative Map No. 5983/UGM. DATED: Cj�S��. &ll BENEFICIARY Housing Capital Company A Minnesota partnership By: DFP Financial, Inc. a California Corporation Its Managing General Partner 1; 1 By: �/ !��17"� Name: Carl F. Swanson Title: Vice President By: Name.- Title: ame:Title: (attach Notary Acknowledgements) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Fresno On August 1, 2011 before me, Patricia L. Gavello, Notary Public, personally appeared Carl F. Swanson, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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. PATRICIA L. GAVELLO COMM. #1864607 m C NOTARY PUBLIC-CALIFORNIA FRESNO COUNTY My Comm.Expires October 9,2013 e Its Signature of Notary Public