HomeMy WebLinkAboutPM 2008-13 - Agreement/Covenant - 6/3/2013 (4) When Recorded Mail To:
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City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
NO FEE- GOVERNMENT CODE 6103
CC City of Fresno
Q Public Works Department
2 P.W. File No. 5494-2008-13
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SUBDIVISION AGREEMENT
PARCEL MAP NO. 2008-13, PHASE 1 OF VESTING TENTATIVE
PARCEL MAP NO. 2008-13
including ADDENDUM TO SUBDIVISION AGREEMENT FOR
RIGHTS OF WAY ACQUISITION
Subdivision Agreement
Parcel Map No. 2008-13
Page 2
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THIS AGREEMENT is made this day of &#/ 3 by and
between the City of Fresno, a Municipal Corporation, hereinafter referred to as"City," and, DCTN3
388 FRESNO CA, LLC, a Delaware Limited Liability Company, 1000 North Western Avenue,
Suite 200, San Pedro, California 90732, hereinafter referred to as "Subdivider" without regard for
number or gender.
RECITALS
A. The Subdivider has filed with the City, a Parcel Map which proposes the subdivision of
land owned by Subdivider, situated in the City of Fresno, County of Fresno, State of California,
dividing the real property more particularly described as follows:
Parcels A through O, inclusive, of Parcel Map No. 2008-13 as recorded
in Book , of Parcel Maps at Page(s) jfr— `? Fresno County
Records.
B. The City requires, as a condition precedent to the acceptance and approval of said
Parcel Map,the dedication of streets, highways,public places and easements as are delineated on
the Parcel Map, and deems such dedications as necessary for the public use; and, requires the
construction of improvements of the streets delineated on the Parcel Map.
C. Section 12-1206 of the Fresno Municipal Code requires the Subdivider to either
construct or enter into an Agreement whereby Subdivider agrees to perform and complete the work
and improvements required as Conditions of Approval for Vesting Tentative Parcel
Map No. 2008-13 dated July 7, 2011 issued by the City and any amendments thereto (hereinafter
referred to as Conditions of Approval and incorporated into this agreement by this reference), in
consideration of the approval of the Parcel Map for recording.
D. The Subdivider further hereby represents and warrants that any and all parties
holding record title interest in the Subject Property which may ripen into a fee, have subordinated to
this agreement and all such instruments of subordination, if any, are attached hereto and made a
part of this agreement.
E. City and Subdivider's predecessor-in-interest as the owner of the Property, JOHN
ALLEN COMPANY, LLC, a California Limited Liability Company, are parties to (i) that certain
Subdivision Agreement
Parcel Map No. 2008-13
Page 3
Development Agreement for the Property,dated as of July 7,2011 and recorded on August 4,2011,
as Document No. 2011-0103082, Official Records Fresno County,(ii)that certain Acknowledgement
of Application of Development Agreement to Additional Property for the EI Paseo Marketplace
Project, dated September 17,2012 and recorded on September 18,2012,as Document No. 2012-
0132893, Official Records Fresno County, (iii) that certain First Administrative Amendment to
Development Agreement for The EI Paseo Marketplace Project, dated as of June 29, 2012(which
was not recorded), and (iv) that certain Second Administrative Amendment to Development
Agreement for the EI Paseo Marketplace Project, dated September 17, 2012 and recorded on
September 18, 2012, as Document No. 2012-0132894, Official Records Fresno County, (as
amended, the"Development Agreement"). Pursuant to the terms of the Development Agreement,
Subdivider and all other persons holding legal fee title interest in the Marketplace Project Area are
bound by the Development Agreement.
AGREEMENT
In consideration of the approval of said Parcel Map for filing and recording as provided and
required by law, it is mutually agreed and understood by and between the Subdivider and City,and
the Subdivider and City do hereby mutually agree as follows:
1. The Subdivider shall perform the work and improvements at the time a permit or
other grant of approval for development of the parcel is issued by the City or before two(2) years of
the date of this Agreement, whichever occurs first, unless prior to this date of performance an
extension of time is approved by the Public Works Director.
2. Prior to the commencement of the work, the Subdivider shall submit engineered
construction plans to the City Engineer for review and approval. The cost to prepare and process
such plans,and the inspection of such work,shall be the responsibility of the Subdivider. The work
shall be performed and inspected under a Street Work Permit issued by the Public Works
Department pursuant to such approved construction plans.
3. All of the work and improvements ("Improvements")and materials more specifically
shown on the referenced plans which are incorporated by reference and made a part of this
Agreement shall be performed, installed,and provided in accordance with the provisions of Section
Subdivision Agreement
Parcel Map No. 2008-13
Page 4
5.2 of the Development Agreement at the sole cost and expense of the Subdivider including all
costs of engineering, inspection and testing. The construction cost estimates, and corresponding
improvement and warranty security requirements for the Improvements are set forth in Exhibit"A"
which is incorporated by reference.
4. The work and improvements are stipulated in the Conditions of Approval and include
the following:
a. All utility systems shall be installed underground. Subdivider's attention is
directed to the installation of street lights in accordance with Resolution No. 78-522. The
Subdivider shall construct a complete underground street light system as approved by the
City Engineer prior to final acceptance of the parcel map. Height, type, spacing, etc., of
standards and luminaries shall be in accordance with Resolution No. 78-522 and shall be
approved by the City Engineer.
b. Water main extensions and services shall be provided in accordance with
applicable provisions of Chapter 6,Article 5 of the Fresno Municipal Code and all applicable
charges shall apply.
C. Sanitary sewer extensions and services shall be provided in accordance with
applicable provisions of Chapter 6,Article 3 of the Fresno Municipal Code and all applicable
charges shall apply.
d. All storm water runoff and other surface drainage shall be discharged in
accordance with the California Building Code as may be amended and City approval of a
storm drainage and grading plan obtained by the Subdivider.
e. Set all landmarks, monuments and lot corners required to locate land
divisions shown on the Parcel Map.
f. Perform and construct all work shown on the following construction plans and
any amendments thereto, such plans are on file with the Public Works Department and are
incorporated into this agreement by this reference:
i. City Drawing Nos: 10-C-11185 through 10-C-11195 inclusive
(sewer and water), 15-E-9053 through 15-E-9113ZZ inclusive (street and
landscaping), 4-C-1332 through 4-C-1334ZZ inclusive (street lighting), and 4-E-
1996 through 4-E-2006ZZ (traffic signal).
ii. Fresno Metropolitan Flood Control District Drawing Nos: EH-26-1
through EH-26-4 and, EH-27-1 through EH-27-10
g. ADDENDUM TO SUBDIVISION AGREEMENT. Subdivider has attempted
but is unable to acquire and dedicate to the City all easements required for street purposes
related to this agreement prior to final map approval. Pursuant to Section 12-1011(b)(6) of
Subdivision Agreement
Parcel Map No. 2008-13
Page 5
the Fresno Municipal Code, Subdivider requests that City acquire the necessary easement
or dedication through negotiation or the lawful exercise of the City's power of Eminent
Domain. Subdivider agrees to observe all the terms and conditions of the Addendum to
Subdivision Agreement(Right-of-Way Acquisition)("Addendum")attached to this Agreement
and incorporated herein by this reference. Subdivider shall deposit with the City the sums in
a form required by the Public Works Director pursuant to the Addendum.
h. The extent of the improvements for Parcel Map No.2008-13, Phase 1 of
Vesting Tentative Parcel Map No. 2008-13, includes Phases 1 A, 1113 and 1 C of the
Development Agreement. Development within the boundaries of said Parcel Map is
limited to 399,999 square feet pursuant to an approved site plan by the Development
and Resource Management Department.
5. Prior to the approval of the Parcel Map by the City,the Subdivider shall furnish to the
City the following securities in the amounts itemized in said Exhibit A. Bonds shall be by one or
more duly authorized corporate sureties licensed to do business in California subject to the approval
of the City and on forms furnished or approved by the City, Certificates of Deposit that is made
payable only to the City of Fresno in a form acceptable to the City Attorney's office.
a. PERFORMANCE SECURITY. Total amount to equal 100%of the Final Cost
Estimate to be conditioned upon the faithful performance of this agreement.
i. 95% of the Final Cost Estimate shall be in the form of a bond or
certificate of deposit made payable only to the City of Fresno ; and
ii. 5% of the Final Cost Estimate shall be in cash or a certificate of
deposit made payable only to the City of Fresno.
b. PAYMENT SECURITY. Total amount to equal 50% of the Final Cost
Estimate to secure payment to all contractors and subcontractors performing work on said
improvements and all persons furnishing labor, materials, or equipment to them for said
improvements. Payment Security shall be in the form of a bond or certificate of deposit
made payable only to the City of Fresno .
C. Subject to the requirements of Resolution No.2008-100 adopted by the City
Council on May 6, 2008, the Subdivider may request a one-time partial acceptance, for
maintenance only, of public improvements required by this agreement that the Subdivider
has constructed, to reduce the amount of the Performance Security required by this
Agreement. At the time of the City's partial acceptance, the City and Subdivider shall enter
into an amendment to this Agreement reducing the Performance Security to an amount
consistent with the requirements of Resolution No. 2008-10 required by this Agreement.
The City shall not release any of the original Performance Security or execute the
Amendment to this Agreement until such time as the Subdivider has provided the
Performance Security required by the Amendment.
Subdivision Agreement
Parcel Map No. 2008-13
Page 6
6. Prior to the approval of the Parcel Map by the City, the Subdivider shall pay to the
City and/or execute a covenant to defer certain impact fees due which are eligible to be deferred
pursuant to FMC Section 12-4.604, the total fees and charges due as a condition of Parcel Map
approval. The total fees and charges are more particularly itemized in Exhibit"B," attached hereto
and made a part of this Agreement. Subdivider may receive designated fee credits from the City as
offsets toward a UGM or development impact fee for construction of certain required infrastructure
improvements either as a part of this Agreement or at some future date. Subdivider acknowledges
and agrees any such fee credits are provided contingent upon the City accepting required
infrastructure improvements completely installed by Subdivider. Subdivider shall pay in full any
UGM or development impact fees,following application of the applicable fee credits prior to approval
of the Parcel Map or as may be deferred by a fee deferral covenant. If the Parcel Map has already
been approved and there is no applicable fee deferral covenant,all such fees shall be promptly paid
by Subdivider. The City may enforce recovery of such fees in any manner available at law or in
equity, including but not limited to private foreclosure and sale of the property in the manner
provided in Section 2924 of the California Civil Code or successor statute.
7. Upon acceptance of the required work by the City Engineer,a warranty security shall
be furnished to or retained by City in the minimum amount identified in said Exhibit "A," for
guarantee and warranty of the work for a period of one (1)year following acceptance against any
defective work or labor done or defective materials furnished. In accordance with Section 12-1016
of the Fresno Municipal Code, said warranty security shall be in the form of cash or a certificate of
deposit. The warranty security shall be returned to the Subdivider, less any amount required to be
used for fulfillment of the warranty one (1) year after final acceptance of the subdivision
improvement.
8. The Subdivider and his contractor and subcontractors shall pay for any materials,
Subdivision Agreement
Parcel Map No. 2008-13
Page 7
provisions, provender, and other supplies or terms used in, upon, for, or about the performance of
the work contracted to be done and for any work or labor thereon of any kind and for amounts due
under the Unemployment Insurance Act of the State of California with respect to such work or labor
and shall file with City pursuant to Section 3800 of the Labor Code a Certificate of Workers
Compensation and shall maintain a valid policy of Workers Compensation Insurance for the duration
of the period of construction.
9. Indemnification.
a. To the furthest extent allowed by law, Subdivider shall indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury,death at
any time and property damage) incurred by City, Subdivider or any other person, and from
any and all claims,demands and actions in law or equity(including attorney's fees, litigation
and legal expenses incurred by City or held to be the liability of City, including plaintiff's or
petitioner's attorney's fees if awarded, in connection with City's defense of its actions in any
proceeding), arising or alleged to have arisen directly or indirectly out of performance or
installation of the work or improvements by Subdivider and Subdivider's employees,officers,
agents, contractors or subcontractors.
b. Subdivider's obligations under the preceding sentence shall apply regardless
of whether City or any of its officers, officials, employees or agents are negligent, but shall
not apply to any loss, liability,fines, penalties,forfeitures,costs ordamages caused solely by
the gross negligence, or caused by the willful misconduct, of City or any of its officers,
officials, employees, agents or authorized volunteers.
C. If Subdivider should subcontract all or any portion of the work to be performed
under this Agreement, Subdivider shall require each subcontractor to indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of paragraphs "a" and `b" of this Section.
Notwithstanding the preceding sentence, any subcontractor who is a "design professional"
as defined in Section 2782.8 of the California Civil Code shall, in lieu of indemnity
requirements set forth in paragraphs "a" and "b" of this Section, be required to indemnify,
hold harmless and defend City and each of its officers, officials, employees, agents and
volunteers to the furthest extent allowed by law, from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including
but not limited to personal injury,death at any time and property damage), and from any and
Subdivision Agreement
Parcel Map No. 2008-13
Page 8
all claims, demands and actions in law or equity(including reasonable attorney's fees and
litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or
willful misconduct of the design professional, its principals, officers, employees, agents or
volunteers in the performance of this Agreement.
d. This Section shall survive termination or expiration of this Agreement.
10. Insurance. Throughout the life of this Agreement, Subdivider shall pay for and
maintain in full force and effect all policies of insurance described in this Section with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner to do business in the
State of California and rated not less than "A-VII" in Best's Insurance Rating Guide, or(ii)authorized
by City's Risk Manager. The following policies of insurance are required:
a. COMMERCIAL GENERAL LIABILITY insurance,which shall be at least as
broad as the most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01 and shall include insurance for bodily injury, property
damage, and personal and advertising injury with coverage for premises and operations
(including the use of owned and non-owned equipment), products and completed
operations, contractual liability(including indemnity obligations under this Agreement), with
limits of liability of not less than $5,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000
aggregate for products and completed operations, and $5,000,000 general aggregate.
b. COMMERCIAL AUTOMOBILE LIABILITY insurance,which shall be at least
as broad as the most current version of Insurance Services Office (ISO) Business Auto
Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code 1-Any Auto), with combined single limits of
liability of not less than $5,000,000 per accident for bodily injury and property damage.
C. PROFESSIONAL LIABILITY(Errors and Omissions)insurance appropriate to
the respective person's profession (applicable only to those subcontractors who are
providing Professional Services to the Subdivider), with limits of liability of not less than
$1,000,000 per claim/occurrence and $2,000,000 policy aggregate.
d. WORKERS' COMPENSATION insurance as required under the California
Labor Code.
e. EMPLOYERS' LIABILITY with minimum limits of liability of not less than
Subdivision Agreement
Parcel Map No. 2008-13
Page 9
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each
employee.
Subdivider shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and Subdivider shall also be responsible for payment of any self-insured
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted 30
calendar day written notice in favor of City of policy cancellation of coverage, except for the Workers'
Compensation policy which shall provide a 10 calendar day written notice of such cancellation of
coverage. In the event any policies are due to expire during the term of this Agreement,
Subdivider shall provide a new certificate evidencing renewal of such policy(ies) not less
than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance
by the insurer, broker,or agent of a notice of cancellation in coverage, Subdivider shall file with City
a new certificate and all applicable endorsements for such policy(ies).
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form and shall name City, its officers,officials, agents,employees and volunteers as an
additional insured. Such policy(ies)of insurance shall be endorsed so Subdivider's insurance shall
be primary and no contribution shall be required of City. In the event claims-made forms are used
for any Professional Liability coverage, either(i)the policy(ies)shall be endorsed to provide not less
than a five (5) year discovery period, or(ii) the coverage shall be maintained for a minimum of five
(5)years following the termination of this Agreement and the requirements of this Section relating to
such coverage shall survive termination or expiration of this Agreement. Any Workers'
Compensation insurance policy shall contain a waiver of subrogation as to City,its officers,officials,
agents, employees and volunteers.
Subdivider shall have furnished City with the certificate(s) and applicable
endorsements for ALL required insurance prior to City's execution of the Agreement.
Subdivision Agreement
Parcel Map No. 2008-13
Page 10
Subdivider shall furnish City with copies of the actual policies upon the request of City's Risk
Manager at any time during the life of the Agreement or any extension, and this requirement shall
survive termination or expiration of this Agreement.
The fact that insurance is obtained by Subdivider or his/her/its subcontractors shall not be
deemed to release or diminish the liability of Subdivider or his/her/its subcontractors including
without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify
City, its officers, officials, agents, employees and volunteers, shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by Subdivider or his/her/its
subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relieve
from liability nor limit the liability of Subdivider, its principals, officers, agents, employees, persons
under the supervision of Subdivider, vendors, suppliers, invitees, subcontractors, consultants or
anyone employed directly or indirectly by any of them.
If at any time during the life of the Agreement or any extension, Subdivider fails to maintain
the required insurance in full force and effect, the Director of Public Works for the City, or his/her
designee, may order that the Subdivider, or its contractors or subcontractors, immediately
discontinue any further work under this Agreement and take all necessary actions to secure the
work site to insure that public health and safety is protected. All payments due or that become due
to Subdivider shall be withheld until notice is received by City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City
to terminate this Agreement.
If Subdivider should subcontract all or any portion of the services to be performed under this
Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of
City, its officers,officials, employees,volunteers and agents in accordance with the terms of each of
Subdivision Agreement
Parcel Map No. 2008-13
Page 11
the preceding paragraphs, except that the subcontractors'certificates and endorsements shall be on
file with Subdivider and City prior to the commencement of any work by the subcontractor.
11. Compaction and other materials testing performed for the determination of
compliance with Public Works Standards shall conform to Section 2-11 of the City Standard
Specifications, entitled "Materials Acceptance Testing." Materials testing shall at all times remain
under the review of the City Engineer who may determine additional test procedures,and additional
locations to be tested. All materials testing for improvement work within the public easements and
rights-of-way shall be ordered and paid for by the Subdivider.
12. Except as otherwise provided in the Development Agreement, Subdivider shall
comply with the provisions of the prevailing Building, Plumbing, Mechanical, Electrical and Zoning
Codes and any other Codes of the City.
13. It shall be the responsibility of the Subdivider to coordinate all work done by his
contractors and subcontractors, such as scheduling the sequence of operations and the
determination of liability if one operation delays another. In no case shall representatives of the City
be placed in the position of making decisions that are the responsibility of the Subdivider. It shall
further be the responsibility of the Subdivider to give the City Engineer written notice not less than
two (2) working days in advance of the actual date on which work is to be started. Failure on the
part of the Subdivider to notify the City Engineer may cause delay for which the Subdivider shall be
solely responsible.
14. Whenever the Subdivider varies the period during which work is carried on each day,
he shall give due notice to the City Engineer so that proper inspection may be provided. Any work
done in the absence of the City Engineer will be subject to rejection. The inspection of the work
shall not relieve the Subdivider of any of his obligations to fulfill the Agreement as prescribed.
Defective work shall be made good and unsuitable materials may be rejected, notwithstanding the
fact that such defective work and unsuitable materials have been previously overlooked by the City
Subdivision Agreement
Parcel Map No. 2008-13
Page 12
Engineer and accepted.
15. Any damage to the sewer system, concrete work,or street paving that occurs after
installation shall be made good to the satisfaction of the City Engineer by the Subdivider before
bonds are released or final acceptance of the work and improvements.
16. Adequate dust control shall be maintained by the Subdivider on all streets within and
without the subdivision on which work is required to be done under this Agreement from the time
work is first commenced until the paving of the streets are completed. "Adequate dust control" as
used herein shall mean the sprinkling of the streets with water or the laying of a dust coat of oil
thereon with sufficient frequency to prevent the scattering of dust by wind or the activity of vehicles
and equipment onto any street area or private property adjacent to the subdivision. Whenever in the
opinion of the City Engineer adequate dust control is not being maintained on any street or streets
as required by this paragraph, the City Engineer shall give notice to the Subdivider to comply with
the provisions of this paragraph forthwith. Such notice may be personally served upon the
Subdivider or, if the Subdivider is not an individual, upon any person who has signed this agreement
on behalf of the Subdivider or, at the election of the City Engineer,such notice maybe mailed to the
Subdivider at his address on file with the City Engineer. If within 24 hours after such personal
service of such notice or within 48 hours after the mailing thereof as herein provided,the Subdivider
shall not have commenced to maintain adequate dust control or shall at any time thereafter fail to
maintain adequate dust control, the City Engineer may, without further notice of any kind,cause any
such street or streets to be sprinkled or oiled, as he may deem advisable to eliminate the scattering
of dust, by equipment and personnel of City or by contract as the City Engineer shall determine,and
the Subdivider agrees to pay to City forthwith, upon receipt of billing therefore, the entire cost to City
of such sprinkling or oiling. When the surfacing on any existing street is disturbed, this surfacing
shall be replaced with temporary or permanent surfacing within 14 calendar days, and the roadway
shall be maintained in a safe and passable condition at all times between the commencement and
final completion, and adequate dust control shall be maintained during these operations.
Subdivision Agreement
Parcel Map No. 2008-13
Page 13
17, The Subdivider shall install all street improvements in accordance with the Public
Works Standards, and the approved construction plans.
18. Concrete curbs and gutters, the sanitary sewer system and house connections,
together with water mains,gas mains, and their respective service connections, shall be completed
in the streets and alleys before starting the street and alley surfacing.
19. Time is of the essence of this Agreement. The provisions contained in this
Agreement are intended by the parties to run with the land, and the same shall bind and inure to the
benefit of the parties hereto, their heirs, successors in interest, and assigns.
20. No assignment of this Agreement or of any duty or obligation of performance
hereunder shall be made in whole or in part by the Subdivider without the written consent of the City.
21. In performing its obligations set forth in this Agreement, Subdivider shall comply with
all applicable laws, regulations,and rules of the governmental agencies having jurisdiction including,
without limitation, applicable federal and state labor standards and environmental laws and
regulations, Subdivider, not the City, is responsible for determining applicability of and compliance
with all local, state, and federal laws including,without limitation, the California Labor Code, Public
Contract Code, Public Resources Code, Health& Safety Code,Government Code, the Fresno City
Charter, and Fresno Municipal Code. The City makes no representations regarding the applicability
of any such laws to this Agreement, the project, or the parties' respective rights or obligations
hereunder including, without limitation, payment of prevailing wages, competitive bidding,
subcontractor listing, or other matters. City shall not be liable or responsible, in law or equity,to any
person for Subdivider's failure to comply with any such laws, whether the City knew or should have
known of the need for the Subdivider to comply,or whether the Cityfailed to notify Subdivider of the
need to comply. The Subdivider is referred to the City's Department of Public Works, Construction
Management Division to obtain the current prevailing wage rates, to the extent said rates are
applicable to the construction of any of the Improvements.
Subdivision Agreement
Parcel Map No. 2008-13
Page 14
22. If either party is required to commence any proceeding or legal action to enforce or
interpret any term or condition of this Agreement, 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 Agreement, "attorneys' fees" 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.
23. The waiver by either party of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same ora
different provision of this Agreement. No provisions of this Agreement may be waived unless in
writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be
deemed to be a waiver of any other provision herein.
24. The provisions of this Agreement are severable. The invalidity or unenforceabilityof
any one provision in this Agreement shall not affect the validity or enforceability of the other
provisions, which shall remain in full force and effect.
25. The terms of this Agreement shall not be construed to amend, cancel or supersede
any of the terms of the Development Agreement. In the event of a conflict between the terms of the
Development Agreement and this Agreement,the terms of the Development Agreement shall take
precedence.
26. This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California, excluding, however, any conflict of laws rule which would
Subdivision Agreement
Parcel Map No. 2008-13
Page 15
apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the
enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
27. Each party acknowledges that they have read and fully understand the contents of
this Agreement. This Agreement represents the entire and integrated agreement between the
parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be modified only by
written instrument duly authorized and executed by both City and Subdivider.
Subdivision Agreement
Parcel Map No. 2008-13
Page 16
The parties have executed this Agreement on the day and year first written above.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
DCTN3 388 FRESNO CA, LLC,
Public Works Department a Delaware Limited Liability Company
Patrick Wiemiller, Director
By: By:
y
Scott Mozier, P.E., Assis fit Director .Joseph W. Rjefi,4anager
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
i
By: I J
Taka Kolluri-Barbic
Deputy City Attorney
Date: I !<15
(Attach Notary Acknowledgments)
CLERK'S CERTIFICATION
State of California)
County of Fresno )
On May 22, 2013, before me, Cindy Bruer, Deputy City Clerk, personally
appeared Scott Mozier, P.E. Assistant Director of the Public Works Department
of the City of Fresno who 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), acted, executed the instrument.
I certify under PENALTY OR PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
YVONNE SPENCE. CMC
CITY CLERK, City of Fresno
By + of �R�r
DelAliy r'
G��O•`�{dr6 1y�
44'F ,r5,
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
County ofLOS4I &S
On#144 1S7oIyj before me, 611ADWO-fix-AlGKt��aL{I� kpit/ plub(-rL
ate Here Insert Name and Title of the Officer
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personally appeared yj lu(
Name(s)of Signer(s)
who proved to me on the basis of satisfactory 't
evidence to be the person�A whose name4g) is/�rFe
subscribed to the within instrument and acknowledged
to me that he/§(e/tp(ey executed the same in
CJI:AHI GIIRICH his/hr/tfl4ir authorized capacity(yes), and that by
3�OAL"Y114
Commission# 1918104 his/hO/th& signature(,) on the instrument the
erson or the entity upon behalf of which the
Notary Public -California z p Y P
Los Angeles County person/acted, executed the instrument.
Comm.E ins Jan 16,2015
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.
Signature:
Place Notary Seal Above Signature of Notary 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: ��(Jf�4rOn aGr�G`k1 DqL z "��
4
Document Date: Number of Pages:
t
Signer(s) Other Than Named Above:
G Capacity(ies) Claimed by Signer(s)
G
Signer's Name: Signer's Name:
Corporate Officer—Title(s): ❑Corporate Officer—Title(s):
❑ Individual ❑Individual
11111111111111111161
❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑Limited 0 General Top of thumb here
❑ Attorney in Fact ❑Attorney in Fact
G ❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
.I Other: ❑Other:
Signer Is Representing: Signer Is Representing: '
0 2009 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item 95907
SUBORDINA'CION
The undersigned as holder of the beneficial interest in and under that certain Deed of
Trust recorded on March 14, 2013, in the o'f'fice of the Fresno County Recorder, as Document
No. 2013-0038454 of which the Deed of Trust in, by and between DCTN3 388 Fresno CA, LLC, as
Trustor, PRLAP, as Trustee and Bank of America, NA , Beneficiary, hereby expressly subordinates said
Deed of Trust and its beneficial interest thereto to the foregoing Subdivision Agreement for the Parcel
Map of No. 2008-13, Phase 1 of Vesting Tentative Parcel Map No, 2008-13, including Addendum to
Subdivision Agreement for Rights of Way Acquisition.
DATED; 111 -L 7 D f
BENEFICIARY
BANK OF AMERICA, N.A.,
A National Banking Association
By: _
Chris Jares, Se for Vice President
(Beneficiary to print/type document
information, Name, Title and attach Notary
Acknowledgment)
ACKNOWLEDGMENT
State of Califo nia
County of RG�?-��� )
On before me,
(insert name and title of the offic r)
personally appeared (I ['"�Y C` _I c--
who proved to me on the basis of satisfactory evidence to be the person,, whose namew is/are'
subscribed to the within instrument and acknowledged to me that he/sheltbep executed the same in
his/her/their authorized capacity(.ies), and that by histhefltbe r signature(sron the instrument the
person(,$), or the entity upon behalf of which the personWacted, 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. PATRICIAJIMENEZ
COMM.N 2012515
NOTARY PUBLIC
LOS ANGELESMY Eqjm
COUNTY
Signature t" � LrL�.Y��_ "x'16 20t
(Seal)
EXHIBIT A Subdivision Agreement for Parcel Map 2008-13
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $782,750
Well Construction Cost Estimate $0
Sewer System Construction Cost Estimate $531,538
Storm Drain Construction Cost Estimate $564,800
Street Construction Cost Estimate $5,746 054
Final Cost Estimate(for Inspection Fee purposes) $7 625,142
Street Construction Cost Estimate (Herndon Ave. &SR 99) $2,870,860
141 Landmarks, Monuments, Lot& Block Corners($50/ea) $7,050
Sub-Total (for bonding purposes) $10,503,052
Construction Contingency (10%) $1,050,305
TOTAL COST ESTIMATE"
(for improvement securities purposes) $11,553,357 $11,553,000
All amounts rounded to nearest$1000
B. IMPROVEMENT SECURITY REQUIREMENTS(due with subdivision agreement)
Performance Security (100%of Total Cost Estimate)
95%of amount shall be in the form of a bond by duly
authorized corporate sureties or certificate of deposit $10,975,000
5%of amount shall be in cash or a Certificate of Deposit
made payable to the City of Fresno. $578,000
Payment Security (50%of Total Cost Estimate)
100%of amount shall be in the form of a bond by duly
authorized corporate sureties or certificate of deposit $5,776,500
Faithful Performance Security to Guarantee Completion of Plans
Street, Street Light, Landscaping, Traffic Signal Plans $344,763
Utility Plans(Sewer.Water,Storm Water) $73,302
100%of amount shall be in cash or a Certificate of Deposit $418,100
C. WARRANTY SECURITY REQUIREMENT' (due as condition of acceptance of the work)
5%of first$50,000 of the Total Cost Estimate $3,000
3%of next$50,000 $2,000
1%of next$400,000 $4,000
0.5%of amount over$500,000 $55,300
Minimum amount $64 300
EXHIBIT A A/28/00 Prepared By: Frank Date: 05/08/13 Print Date:05/08/13 3:49:34 PM Page I of 1
EXHIBIT B Parcel Map Agreement No. 2008-13
AMOUNT
DEFERRED,
NET AMOUNT DUE @
EXTENSION DUE OCCUPANCY
A. MISCELLANEOUS FEES&CHARGES
1. INSPECTION FEE
$7,62 142 Final Cost Estimate over$500K $312,923.82
($20,793+4.1%of amount over$500K)
Less Inspection Fees paid with North
Riverside Drive plans. $24 872.00
Less Inspection Fees paid with Early Street
Construction Agreement
Inspection Fee 288,0 1. $288,051.82
2. MONUMENT CHECK FEE
15 Lot&Oullots @ $30.00 per Lot 50.00 $450.00
(Min$200)
3. STREET TREES
OCommercial(5-gallon)Street Trees @ 0.00 per Tree na na (A1)
(A1) Street Tree inspection fees will be payable at the time of development of each parcel unless otherwise
determined by Public Works.
4. STREET RIGHTS OF WAY ACQUISITIONICONSTRUCTION CHARGE per FMC 11-226(()(6) _
Lum Sum Charge as established by Public Works Director T $90 781 00 $90,781.00
5. IRRIGATION PIPELINE(one-time maintenance fee)
Lineal Feet @ 5.00 per LF na na
7. CASH-IN-LIEU CHARGES
a.Street Plan Check Fees
Lum Sum cash-in-lieu (Acct.34552,Fund 10101,Org.180201) $79 930.00 $79 930.00
b.Railroad Crossing Sidewalk Construction Charge
Lum Sum cash-in-lieu (Acct.33901,Fund 30102,Org.189901) $9 238.40 $9 238.40
6. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-9)
Anticipated Operational Maintenance Costs:
Lum Sum Landscaping Operational Costs $17,210.00
Lum Sum Other Operational Costs $8,428.00
Lum Sum Landscape area Field Inspection Fee-Pubkc works @ 05.00 LS $305.00
Total $23,943.00 $23,943.00
Note:The sstimated maximum special lax assessment per sq.ft.=$0.02032266
TOTAL MISCELLANEOUS FEES&CHARGES $492 394.22 $492 394.22
EXHIBIT B v t 1/01/01 Printed 05/08/13 3.3558 PM Page 1
EXHIBIT B Parcel Map Agreement No. 2008-13
AMOUNT
DEFERRED,
NET AMOUNT DUE @
EXTENSION DUE OCCUPANCY
B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED
48.1722 Gross Acres
45.5569 Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets
267 LUE(non-residential)
C-3 Zoning
u m Input'ugm'if within the Urban Growth Management Area or"no"
1. LOCAL DRAINAGE FEES
EH FMFCD Drainage Area
5.1099 Acres per FMFCD(Street Right-of-Ways) @ 13 090 per Acre 66 889.00
Local Drainage Fee 6 889.00F-----$—O0-01(13 1)
(81)All or portion of fee obligation satisfied pursuant to FMFCD agreement
2. SEWER CONNECTION CHARGES
(a)Lateral Sewer WChar e
Frontage: est Herndon Avenue 139,5X SF
Frontage: North Riverside Drive 6 000 SF
Total Square Feet 145. F
145 500 SF; sub-total Lateral Sewer Charge @ $0.10 per SF $14 550.00
Less estimated Lateral Sewer Charge Credits 0.00
Lateral Sewer Charge 14 550.00 ® $14,550.00
(b)Oversize Sewer Charge
UGM Reimbursement Area
Frontage: West Herndon Avenue 139 500 SF
Frontage: North Riverside Drive 153 000 SF
Frontage: North Weber Avenue 62 400 SF
Total Square Feet 354 900 SF
354 900 SF;sub-total Oversize Sewer Charge @ $0.05 per SF 17 745.00
Less estimated Oversize Credits
Less estimated Overdeplh Credits 0.00
Oversize Sewer Charge 17 745.00 $0.00 $17 745.00
(c)Trunk Sewer Charge
Grantland ITrunk Sewer Service Area
Upon occupancy of the project,the subdivider shall pay the appropriate sewer facility charge pursuant to the Simple
Tiered Equity Program(STEP)as determined by the Department of Public Utilities,Wastewater Division,
Environmental Services Section(559-621-5153)
(d)Wastewater Facilities Charge
Upon occupancy of the project,the subdivider shall pay the appropriate sewer facility charge pursuant to the Simple
Tiered Equity Program(STEP)as determined by the Department of Public Utilities,Wastewater Division,
Environmental Services Section(559-621-5153)
EXHIBIT B 0 11010 1 Printed 05108!13 3:35 56 PM Page 2
EXHIBIT B Parcel Map Agreement No. 2008-13
AMOUNT
DEFERRED,
NET AMOUNT DUE @
EXTENSION DUE OCCUPANCY
3. WATER CONNECTION CHARGES
(a)Time&Material Charges("Wet-Tie")
2013 0424 Estimate Number
5446 Water Job Number
Estimated Deposit(FMC 14-1114) a 200.00
Less Wet-Tie charge paid with north Riverside Drive plans $IS 700.00
Time&Materials Charges 8,500.00 $28,500.00
(b)Service Connection Charges
Fees for Water Service Connections and/or Meters are due at time of dlevelopment. Charges based on
service sizes to be determined by the Developer.
(c)Frontage Char e
Frontage: West Herndon Avenue _ 1,395 LF
Frontage: North Weber Avenue 362 LF
Frontage: North Riverside Drive 60 LF
Sub-Total Lineal Feet(full rate) 1,81 LF
817 LF; sub-total Frontage Charge(lull rate) @ $6.50 per LF 1 1 810.50
Less estimated Frontage Charge Credits 00
Frontage Charge 1 0 $0.00 $11 810.50
(d)Transmisslon Grid Main Charge
UGM Reimbursement Area
48.1722 Gross Acres @ $643.00 per Gr Acre $30 974.72
Less Estimated TGM Construction Credits $54 778.00
Transmission Grid Main Charge 0.00 $0.00 Pald w/Credits
(e)Transmisslon Grid Main Bond Debt Service Charge
48.1722 Grass Acres @ $243.00 per Gr Acre $71 705.84
Less Estimated TGM Bond Debt Service Charge Credits
Transmission Grid Main Bond Debi Service Charge 11,705.84 $0.00 $11 705.84
(1)UGM Water Supply Fee
201 Supply Well Service Area
267 Living Unit Equivalents(non-residential) @ 07.00 per LUE $108 669.00
Less Estimated UGM Water Supply Fee Construction Credits
UGM Water Supply Fee 108 669.00 108 669.00
( Well Head Treatment Fee
201 Well Head Treatment Service Area
267 Living Unit Equivalents(non-residenlial) @ $0.00 per LUE
(h Rechar a Fee
201 Recharge Service Area
267 Living Unit Equivalents(non-residential) @ $0.00 per LUE
(I 1994 Bond Debt Service Fee
201 1994 Bond Debt Service Fee Service Area
267 Living Unit Equivalents(non-residential) @ 0.00 per LUE
EXHIBIT B vl 1i0 UO V Printed 05/08/13 3:35'56 PN Page 3
EXHIBIT B Parcel Map Agreement No. 2008-13
AMOUNT
DEFERRED,
NET AMOUNT DUE @
EXTENSION DUE OCCUPANCY
4. CITYWIDE IMPACT FEES&CONSTRUCTION CREDITS
(a TRAFFIC SIGNAL CHARGE
19513 ADT's (non-residential) @ $47.12 ADT $919 452.56(B4)
Less Estimated Traffic Signal Charge Construction Credits 1 015 000.00
Traffic Signal Charge 0.00 $0.00 Pald w/Credlfs
(B4) Subject to the development entitlement for which the Building Permit is being issued.
Cifywlde Impact Fees due at occupancy(Reso.05.427,428,429)
Cifywide Regional Street Charge,and New Growth Area Major Street Charge due of Building Permit(Reso.07.291)
Total Impact Fees&Charges $259,869.34 $137,169.10055$ ,811.34
Note: EXTENSION total includes net results of construction credits
SUMMARY
TOTAL(A) MISCELLANEOUS FEES&CHARGES 92 394.22
TOTAL(13) IMPACT FEES&CHARGES $137 169.00 $55,811.34
TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $629,563.221
EXHIBIT B vi 1101/01 Printed 05!08/13 3:35:56 PM Page 4
ADDENDUM TO SUBDIVISION AGREEMENT
(RIGHT-OF-WAY ACQUISITION)
WHEREAS, this is an addendum ("Addendum") to a subdivision agreement
("Agreement") entered into pursuant to the Subdivision Map Act, specifically, Government
Code Section 66462, affecting Parcel Map No. 2008-13 ("Parcel Map"); and,
WHEREAS, Vesting Tentative Parcel Map No. 2008-13, as approved by the City of
Fresno ("Tentative Map") is a commercial planned development; and,
WHEREAS, the City approved the project subject to certain conditions of approval,
which conditions required several public improvements in order to mitigate the impacts of
the project upon urban infrastructure and physical environment; and,
WHEREAS, in order to approve the Parcel Map, the Director of the Development
and Resource Management Department must find the Parcel Map is in substantial
compliance with the Tentative Map; and,
WHEREAS, the Agreement pertains to subdivision improvements not completed
and accepted at the time of approval of the Parcel Map; and,
WHEREAS, this Addendum pertains specifically to the street improvements
beyond the limits of the Parcel Map required in the Tentative Map conditions, which
require the Subdivider to develop the infrastructure of, and dedicate the right-of-ways for,
certain public streets that will directly or indirectly serve the project; and,
WHEREAS, with respect to such street improvements required to be developed
and dedicated, neither the Subdivider nor the City has sufficient title or interest at the
time of Parcel Map filing to permit the improvements to have been completed prior to
Parcel Map filing; and,
WHEREAS, the Subdivider has notified the City (through the Public Works
Director or Development and Resource Management Department Director) of the
Subdivider's inability to acquire the necessary easements and right-of-ways by
negotiation, and has requested City to acquire the necessary easements at Subdivider's
expense; and,
WHEREAS, the City of Fresno desires to proceed with the acquisition of the
necessary easements for the required public right-of-ways, at the expense of the
Subdivider.
Addendum to Subdivision Agreement
Parcel Map No. 2008-13
Page 2
NOW THEREFORE IT IS AGREED between Subdivider and City as follows:
1 . Subdivider shall be responsible for the entire cost of acquiring the necessary
easements, whether the City acquires through negotiation or by use of it's powers
of eminent domain, including, but not limited to the fair market value of the
easements, legal fees, non-legal staff time, appraisal fees, any necessary court
costs.
2. Subdivider shall initially deposit, upon execution of this agreement, the sums set
out in the paragraph below captioned, "Summary of Initial Deposit". Such sums
shall be utilized by the City to acquire the necessary easement and right-of-ways.
If the initially deposited funds are less than the actual full cost to acquire all
necessary right-of-ways, the Subdivider shall remit to the City such additional
sums as may be required from time to time to conclude the matters, such further
payments to be made within ten (10) days of the mailing to the Subdivider of a
notice requesting such additional funds. The notice shall state what costs have
been incurred to date, what additional costs are anticipated; and how the City
intends to apply these additional deposits. Subdivider's dissatisfaction with the
adequacy or sufficiency of the notice for any reason shall not excuse Subdivider
from any duty or obligation, including the obligation to deposit additional sums. If
deposited sums exceed the actual full cost to acquire the subject right-of-ways,
then at the conclusion of acquisition, City shall refund the difference as soon as the
City determines the amount of such excess.
3. Subdivider shall have the option of providing appraisal and title reports from
qualified and reputable appraisers and title companies, subject to approval of the
City Attorney, in lieu of deposit of appraisal and title report fees.
4. Subdivider acknowledges that the initial cash deposits are estimates only and may
increase if it is necessary to acquire the necessary easement through Eminent
domain. Subdivider agrees to pay all proper and necessary charges incurred or
paid by City in pursuing the condemnation proceedings to a settlement or final
judgement. City incurs no liability for its failure to accurately or properly estimate
the actual costs incurred in the condemnation action.
5. If Subdivider fails to pay the sums stated in the notice to deposit by the date
prescribed, the City shall have the following remedies in addition to any other
remedies available to it under law or in equity:
a. City may, in its sole discretion, elect to terminate any acquisition
proceedings commenced pursuant to this agreement. If City so elects,
Subdivider shall inderrinify and hold City harmless from any and all costs,
fees, damages and expenses incurred as a result of the proceedings and
the termination and abandonment thereof.
Addendum to Subdivision Agreement
Parcel Map No. 2008-13
Page 3
b. City may, in its sole discretion, allow the project to proceed and treat all
costs incurred pursuant to this agreement as a debt due and owing to the
City. In this event, the sums so demanded in the notice to deposit shall be
presumed to be proper, necessary and correct for continued proceedings to
acquire the easements. Upon the failure of Subdivider to make timely and
full deposit, as required by the notice, City shall collect interest on the
amount demanded, to the extent the amounts reflect cost actually incurred,
and upon any amounts thereafter incurred, at the rate of ten (10) percent
per annum until paid. In any action brought by the City as the result of
Subdivider's failure to timely and fully deposit the amounts demanded, City
may recover its reasonable attorney's fees and litigation costs.
C. The City shall not approve any permits to construct any particular
improvement for which property acquisition is required until such time as all
of the property necessary to fully complete the particular improvement is
acquired either by the Subdivider or Subdivider pays in full the sum in the
City's notice to deposit.
6. It is anticipated that it may be necessary for City to exercise its powers of eminent
domain in order to acquire the necessary public right-of-way easements. Any
determination to proceed with eminent domain will be made by the City Council of
the City of Fresno, upon necessary findings.
7. In the event eminent domain proceedings are commenced, prior to the date of any
settlement conference set by the superior court in the eminent domain
proceedings, Subdivider shall be given notice and an opportunity to participate in
any decision to settle the acquisition proceedings if the proposed compensation
exceeds the opinion of value established by the City's appraisal or the property
owner's appraisal. However, such participation shall be limited to advising City
staff where the giving of such advice does not interfere with, restrict, delay or
impede the City Attorney in the prosecution or compromise of the condemnation
proceedings, as she deems necessary and appropriate in the exercise of her sole
professional judgement and discretion.
8. Subdivider agrees that, if for any reason the City determines it necessary to assign
the City's rights and responsibilities under this task to the County in order for the
offsite road conditions to be implemented, the City may do so with written notice to
Subdivider. Upon such assignment, all references to statutorily required actions
on the part of the City in connection with eminent domain proceedings shall be
construed to mean those same actions or legal equivalents on the part of the
County. The Subdivider's responsibilities remain unchanged.
9. Compliance with the terms and conditions of this agreement is a condition of
approval of any and all UGM subdivision map projects which are the subject of the
principal agreement to which this ancillary agreement is a part.
Addendum to Subdivision Agreement
Parcel Map No. 2008-13
Page 4
10. Subdivider agrees that the Parcel Map shall be deemed filed as of the date the
Director of the Development and Resource Management Department finds the
Parcel Map in substantial compliance with the Tentative Map and approves the
same.
11. Subdivider acknowledges that, by execution of the Agreement, including this
Addendum and the City's acceptance of the Parcel Map, Government Code
Section 66462.5 is inapplicable to this subdivision.
12. Subdivider acknowledges that the Tentative Map approval was expressly
conditioned upon the street improvement and right-of-ways being provided as
project mitigation. Nothing herein shall constitute as a waiver by the City of its
police power or of its authority to protect the public against adverse development
project impacts. Nothing herein modifies the Tentative Map conditions imposing
offsite road improvements, or of any other Tentative Map condition, except as
expressly provided for in the Agreement or in this Addendum. Subdivider will not
seek to invalidate any claim or defense made by or on behalf of the City in
pursuance of procurement of the street and right-of-ways on any grounds
including, but not limited to, the fact that all or a portion of the street right of ways
traverse through unincorporated territory within the jurisdiction of the County of
Fresno. Subdivider agrees to act in good faith in implementing the road
condition and to actively assist City in seeking to obtain the County Approvals.
13. City shall have a lien upon any and all performance, payment and other bonds or
deposits posted by or for Subdivider in conjunction with the development as
security for the payment of any costs, charges or fees called for by this Agreement.
14. Upon recordation of the Subdivision Agreement to which this Addendum is
incorporated by reference, City shall have a lien upon the lands more particularly
described in the Subdivision Agreement as security for the payment of any costs,
charges or fees called for by this Agreement.
15. At the conclusion of the acquisition of the necessary easements, City shall provide
to Subdivider a final statement of the expenditures of the City relating to the subject
acquisition. Failure of the City to provide any accounting required by this
agreement, however, shall not excuse Subdivider's duty to perform any act,
particularly the duty to make full and timely deposits in accordance with any
demands and notices by the City. Upon rendering of the final accounting
referenced herein, Subdivider may question or challenge any use of funds set forth
in such accounting and may appeal same to the City Council.
16. Any amounts deposited by Subdivider shall be maintained by City in an
interest-bearing account of the City's choice, and may be co-mingled with other
City funds in such account. Interest accruing upon any such deposit shall inure to
an be created for the benefit of Subdivider, less the City's reasonable or actual
costs of administering the account and less any other charges which may be
Addendum to Subdivision Agreement
Parcel Map No. 2008-13
Page 5
required or authorized by law. The parties agree that five (5) per cent of the
amount(s) deposited is the reasonable cost of administering the account.
17. Time is of the essence to this agreement since the City may suffer certain
consequences in the event of Subdivider's breach, such as inverse condemnation
liability, abandonment (by operation of law) of the condemnation action, and award
to the property owner of her litigation expenses and reasonable attorney's fees
and sanctions imposed by the Permit Streamlining Act (Government Code Section
65920, et seq.).
18. No partial invalidity of this agreement shall invalidate the remainder.
19. Summary of Initial Deposit.
Easement Acquisition for APN:
503-020-12 (NE corner of West Herndon Avenue and North Riverside Drive)
504-050-05 (NW corner of West Herndon Avenue and North Riverside Drive)
504-080-83 (North Riverside Drive and North Veterans Boulevard)
504-080-85 (North Riverside Drive and North Veterans Boulevard)
504-080-85 (Temporary pond basin)
504-080-90 (North Riverside Drive and North Veterans Boulevard)
504-080-91 (North Riverside Drive and North Veterans Boulevard)
504-091-14 (East side of North Riverside Drive, south of West Herndon Avenue)
504-091-15 (NE corner of North Riverside Drive and West Palo Alto Avenue)
504-091-35 (NE corner of North Riverside Drive and West Palo Alto Avenue)
504-091-45 (Water Easement)
504-091-45 (SW corner of North Riverside Drive and West Palo Alto Avenue)
AMOUNT TO BE DEPOSITED ITEM
$560,600 Value of Street Easements
$10,000 Escrow and Title expenses
$5,000 Appraisal
$20,000 Real Estate Staff time
$5,000 Attorney Staff time
$120,120 Contingency (20% ±)
$720,720 SUB-TOTAL
$ 725,000 TOTAL (rounded up to nearest
$5,000)