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Home My WebLink AboutT-4831 - Agreement/Covenant - 2/10/2005 (5) 1 • ' WHEN RECORDED MAIL TO: City Clerk G�. City of Fresno W 2600 Fresno Street Fresno, CA 93721-3603 cr- z v 11/04/1003,10030 � NO FEE-Government Code 6103 239815 CITY OF FRESNO Planning and Development Department P.W. File No. 10550 JAR 7251 North Ciancetti Avenue (T-4831, Lot 1) STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE RESTRICTION OF SINGLE STORY HOMES FOR CERTAIN LOTS WITHIN TRACT NO. 4831 STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 4831 Page 2 RECITALS WHEREAS, McCAFFREY DEVELOPMENT L.P., a California Limited Partnership, 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 18, 19, 27, 28, 30, 31, 48, 49, 57 and 58 of Tract No. 4831 according to the map thereof recorded on Dkcem bex- , 20.03_ in Volume — bS of Plats at Pages 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, Resolution No. 11105 of the Fresno City Planning Commission conditionally approved Vesting Tentative Map of Tract No.4831, hereinafter referred to as the"Tentative Map;" and WHEREAS,the Burlington Northern and Santa Fe Railroad main line,hereinafter referred to as the "Railroad," abuts the east boundary of the Tentative Map and has been determined to be a significant source of noise and vibration which can disrupt the habitability of a residential area; and WHEREAS, a condition of approval of the Tentative Map requires the Covenantor to alleviate the noise impact from the Railroad by implementing the mitigation measures identified in the acoustical analysis prepared by BROWN-BUNTIN ASSOCIATES, Inc. dated December 5, STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 4831 Page 3 1997 (including amendment to the analysis dated December 24, 1997) for the Tentative Map (hereinafter referred to as the "Acoustical Analysis" and incorporated into this Statement by this reference); and WHEREAS, the Covenantor has applied to the City of Fresno for a Final Map of Tract No. 4831, pursuant to the Tentative Map, to establish a 91-lot single-family residential subdivision; and WHEREAS,the Acoustical Analysis identifies that the habitability of the Subject Property is affected by the Railroad and restricts the dwellings to be constructed on the Subject Property to one-story in height, and WHEREAS,the City of Fresno desires to obtain covenants from the Covenantor to insure that the Subject Property is developed in conformance with the provisions of the Tentative Map and the Acoustical Analysis to mitigate noise levels to meet State and local standards. 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. STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 4831 Page 4 1. Covenantor hereby covenants to only construct single-story dwellings unless a specific analysis of the building plans show that interior noise levels will meet both State and local standards. 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 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 necessary. 4. 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. HI STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 4831 Page 5 DATED: Mo0eyK hew- 18. 2za=)5 CITY OF FRESNO, COVENANTOR a Municipal Corporation McCAFFREY DEVELOPMENT, L.P. a California Limited Partnership By: Yovino, Director By: McCaffrey Construction Inc. Plan 7 g & Development Department a California Corporation, General Partner APPROVED AS TO FORM: By: Robert A. McCaffrey, President Hilda Cantu Montoy City Attorney B B Y• Deputy avid Cia attan, Chief Operating Officer (Attach Notary Acknowledgments) FORM Cov Restriction of Single Story Homes 00-27-03 ioulsr 10-28-2003 STATE OF CALIFORNIA ) SS. COUNTY OF FRESNO ) On October 30,2003, before me, the undersigned, a Notary Public for the State of California, personally appeared,Robert A. McCaffrey and David Ciabattari, 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 the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity(ies) on behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public L.S. My Commission pires Januar1 007 MICHELE 'n HOGA Commission#—.-95--- r1395535 i Notary Public - California Fresno County My Comm.Expkes Jan 21,2007 Tract No. 4831/UGM P.W. File No. 10550 SUBORDINATION The undersigned as holder the beneficial interest in and under that ce ain Deed of Trust recorded on February 8,2001, in th office of the Fresno County Recorder, Docu ent No.20010015887 and modified on November 7, 001, Document No. 20010163839, of whic the Deed of Trust in by and between: McCaffrey Deve opment, L.P., a California Limited Part rship, as Trustor, American Securities Company, a Ca omia Corporation, as Trustee, and ells Fargo Bank, a National Association, as Beneficiary, h by expressly subordinates sai Deed of Trust and its beneficial interest thereto to the foregoing St a ment of Covenants Affecti g Land Development for Restriction of Single-Story Homes for Certain Lots ithin Tract No. 483 . DATED: ENEFI ARY Wells Farg Bank a National As ciation By: By: (Attach Notary Acknowledgement) CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On November 19, 2003 before me, Elvia Sommerville 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 persons(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(s)the person(s),or the entity upon behalf of the CITY OF FRESNO which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK a By DEPUTY