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Home My WebLink AboutT-5511 - Agreement/Covenant - 12/5/2007 (7) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 1112012007,20070209037 CITY OF FRESNO CC Planning and Development Department O Z P.W. File No. 11132 O U w a w r CL STATEMENT OF COVENANTS AFFECTING LAND DEVELOPMENT FOR THE RESTRICTION OF SINGLE STORY HOMES TO MITIGATE RAILROAD NOISE FOR CERTAIN LOTS WITHIN TRACT NO. 5511 STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5511 Page 2 RECITALS WHEREAS, BEAZER HOMES HOLDINGS CORP., a Delaware Corporation, 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 67, 68, 69, 70, 71, 72, 73, 74, 75, 76 and 77 of Tract No. 5511 according to the map thereof recorded on &V&021he - e-2D ' 200 in Volume & of Plats at Pages 17 JALW 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. 12354 of the Fresno City Planning Commission conditionally approved Tentative Map of Tract No. 5511, hereinafter referred to as the "Tentative Map;" and WHEREAS, the San Joaquin Valley Railroad, hereinafter referred to as the "Railroad," abuts the north 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 April 26, 2005 for the Tentative Map(hereinafter referred to as the"Acoustical Analysis"and incorporated into this Statement by this reference); and STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5511 Page 3 WHEREAS, the Covenantor has applied to the City of Fresno for a Final Map of Tract No.5511, pursuant to the Tentative Map,to establish a 194-lot single-family residential subdivision; and WHEREAS, the Fresno County Department of Community Health determined that 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. 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 STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No. 5511 Page 4 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. STATEMENT OF COVENANTS Restriction of Single Story Homes Tract No, 5511 Page 5 DATED: /o�Z 3 7 CITY OF FRESNO, a Municipal Corporation COVENANTOR Planning and Development Department BEAZER HOMES HOLDINGS CORP., Nick P. Yovino, Director a Delaware Corporation By� By: Keith Bergthold, Assistant Director Walter Diamond, Executive Vice President& General Manager APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney By: John W. Fox Deputy City Attorney Date: I-z'4'4E3 (Attach Notary Acknowledgments) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of D On OC;b6D -5 7 before me,.OL /kLl Date Name and Titlp 0 Officer(e.g.,"Jane Do Notary Public") personally appeared Names)of Signer(s) ersonally known to me ❑ (or proved to me on the basis of satisfactory evidence) P0SA E. LONG to be the person(s)whose name(s) is/are subscribed to the Commission#1631297 (Votary Public-California � within . instrument and acknowledged to me that Fresno County he/she/they executed the same in his/her/their authorized ofyComm.Expires Dec 18,20D4 capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above 1_cAz�� Signature Of Not Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons 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 — Titlil / ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ Gene lall� ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact % ❑Attorney in Fact • LJ Trustee / 7Top ❑Trustee f thumb here Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Sigi is Representing: Signer Is Representing: ©2006 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91 31 3-240 2 ` Item No.5907 Reorder:Call Toll-Free 1-800-876-6827