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Home My WebLink AboutT-5442 - Agreement/Covenant - 8/3/2006 (3) WHEN RECORDED MAIL TO: City Clerk City of Fresno 0a1031Z006,200601612a 2600 Fresno Street p Fresno, CA 93721-3603 LLJ � CL O O 4' U Z O NO FEE -Government Code 6103 U CITY OF FRESNO Planning and Development Department P.W. File No. 10885 STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT LIMITING SINGLE-STORY CONSTRUCTION ON CERTAIN LOTS WITHIN FINAL MAP OF TRACT NO. 5442, PHASE 2 OF VESTING TENTATIVE MAP NO. 5258 STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5442 Page 2 RECITALS WHEREAS, McMILLIN SUNNYSIDE RANCH, LLC, a Delaware 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 52 through 70, inclusive, of Tract No. 5442 according to the map thereof recorded on 3 , 2004, in Volume 74, of Plats at Pages / d- N.2 , 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, rezoning Ordinances No. 2004-65 was adopted by the Fresno City Council, hereinafter together referred to as "Ordinance," in conjunction with the approvals of Vesting Tentative Map No. 5258, hereinafter together referred to as the "Tentative Map;"and WHEREAS, a condition of approval of the Tentative Map requires the Covenantor to develop the Subject Property in accordance with the provisions of such Ordinance; and WHEREAS, said Ordinance requires that the development of the lots within the Tentative Map that back onto the Fancher Creek Trail,where the trail is parallel and adjacent to South DeWitt Avenue, and the lots backing onto the railroad tracks (California Avenue alignment)will be limited to single-story construction; and WHEREAS, the Covenantor has filed with the City of Fresno a Final Map of Tract No.5258,pursuant to the Tentative Map,to establish a 258-lot single-family residential subdivision; and STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5442 Page 3 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 said Ordinance and the Tentative Map. 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 covenants that development of the Subject Property will be limited to single-story construction. 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. STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5442 Page 4 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. STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5442 Page 5 DATED: o CITY OF FRESNO, COVENANTOR a Municipal Corporation McMILLIN SUNNYSIDE RANCH, LLC a Delaware Limited Liability Company NICK P. YOVINO, Director Planning & Development Department By: McMillin Management Services, LP, a California Limited Partnership,as Manager By: By: Corky McMillin Construction Services, Inc., NI Pr VINO, Director As General Partner `0 By: �� Bill Walls, Vice President APPROVED AS TO FORM: By: JAMES C. SANCHEZ Bert Almaguer, Vice P ident City Attorney By: i Deputy (Attach Notary Acknowledgments) ACKNOWLEDGMENT State of Cali�nia County of ttg6no Onjo.L 2DOo before me, Q , (here insert nam and title of the officer) personally appeared 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 hese/they executed the same in hi&414arJtheir authorized capacity(ies), and that by 1: Ott Heir 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. ooNN^P AMBRIFi _ Commission#1386558 IL Z Notary fo Public-Cal mia y 1 Fresno Cour S lg natu MyCorm�.Bums Ju129,201Q& (Seal) Tracts No. 5258 P.W. File No. 10746 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on January 10, 2006 in the office of the Fresno County Recorder as Document No. 2006-0005140 of which the Deed of Trust in, by and between: MCMILLIN SUNNYSIDE RANCH, LLC, a Delaware limited liability companyasTrustor, PRLAP, INC. , as Trustee, BANK OF AMERICA, NATIONAL ASSOCIATION , as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants Affecting Land Development Limiting Single-story Construction on Certain Lots Within Tract No. 5442, Phase 2 of Vesting Tentative Map No. 5258. DATED: BENEFICIARY BANK OF AMERICA, NATIONAL ASSOCIATION By: p 2b/tJACID V, triONTOfZq SY By: //V //L , V10 (Beneficiary to printItype document information,Name and Title;and attach Notary Acknowledgment) ACKNOWLEDGMENT State of California County of San Diego On June 14, 2006 before me, Peggy J. French, Notary Public (here insert name and title of the officer) personally appeared Ronald V. Montoro and Cinthya Y. Martinez personally known to me (or-pr.Quad-trme4n-the-hasis4#-sa#&faetefy-eYide*ee}to be the person(s) whose name(s)-is/are subscribed to the within instrument and acknowledged to me that a/they executed the same in tris/trer/their authorized capacity(ies), and that by 4W*-Wtheir 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. PEGGV J. FRENCH Corti Mon/ 1384660 Notary RAAc - Coaromlo tSon Diego County Signature 161MV Comm.Expkes Jan 8,2W7 (Seal) CLERK'S CERTIFICATION State of California) County of Fresno) On June 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 0 By J Deputy