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HomeMy WebLinkAboutT-3116 - Agreement/Covenant - 6/22/2006 r� SUBDIVISION AGREEMENT THIS AGREEMENT is made this 2'A day of 1979, by and between the City of Fresno, a Municipal Corporation, hereinafter designated and called the "City" , and Bank of America National Trust and Savings Association; Max A. and Estelle L. Hayes; Robert A. and Judith Ann Swensen; Max Hayes Plumbing & Heating Co. , Inc. Pension Trust; and, K & L, a Joint Venture, c/o W. M. Lyles Co. , P. 0. Box 4327, Fresno, California, 93744 , hereinafter collectively designated and called the "Subdivider". RECITALS 1. The Subdivider has presented to the City a certain final map of a proposed subdivision of land located within the corporate limits of the City, and known and described a copy of which map is attached to and made a part of this agreement, and said Subdivider has requested the City to accept the dedications delineated and shown on said map for the use and purposes specified thereon, and to otherwise approve said map in order that the same may be recorded, as required by law. 2. The City requires, as a condition precedent to the accep- tance and approval of said map, the dedication of such streets, highways and public places and easements as are delineated and shown on said map, and deems the same as necessary for the public use, and also requires that any and all streets delineated and shown on said map shall be improved by the construction and the installation of the improvements hereinafter specified. 3. Section 12-1012 of the Municipal Code of the City of Fresno requires the Subdivider to enter into this agreement with the City whereby Subdivider agrees to do, perform and complete the work and matters hereinafter in the agreement mentioned and set forth in detail, within the time hereinafter mentioned, in consid- eration of the acceptance of the offers of dedication by the City of Fresno. AGRE] NIENT In consideration of the acceptance of the offers of dedi- cation of the streets, highways, public ways, easements and fa- cilities as shown and delineated on said map, and the approval of said map for filing and recording as provided and required by law, it is mutually agreed and understood by and between the Sub- divider and the City, and the Subdivider and the City do hereby mutually agree as follows: 4. The Subdivider shall perform the work and improvements hereinafter specified on or before November 30, 1981, (except as provided by Paragraph 6h. ) to the satisfaction of the Director of Public Works of the City. 5. The work and improvements, more specifically shown on the attached plans and made a part hereof, shall be done in accor- dance with the construction standards contained in the City of Fresno Standard Specifications adopted March 5 , 1970 by Resolution No. 70-36, and as amended at the sole cost and expense of the Subdivider including all costs of engineering, inspection and testing as specified in Item 14 . 6. The work, improvements and requirements are as follows: a. Construct all landmarks, monuments and lot corners required to locate land divisions shown on the Final Map. b. All utility systems shall be installed underground. The Subdivider ' s attention is directed to the in- stallation of street lights in accordance with Resolution No. 68-187 and Resolution No. 78-522. The Subdivider shall construct a complete under- ground street light system as approved by the Traffic Engineer prior to final acceptance of the subdivision. Height, type, spacing, etc. of standards and luminaires shall be in accordance with Resolution No. 78-522 and shall be approved by the City Traffic Engineer. C. Water main extensions and services shall be pro- vided in accordance with applicable provisions of Chapter 14 , Article 1 of the Fresno Municipal Code and all applicable charges shall apply. A portion of the Subdivider' s water requirements is to provide a water supply well complete in place, including sound proofing, landscaping, measuring devices, electrical panel and acceptable water quality as determined by the water super- intendent. The water well site and its respective transmission grid main connection to the Gates Avenue transmission grid main as shown on the attached plans is subject to revision. Final selection of well site by the Subdivider shall be approved by the City and will be based on the results of test borings to be made by the Subdivider. -2- Subdivider shall prepare and submit to the City for acceptance, a Grant Deed for said final selected well site. Revised construction plans shall be prepared by the Subdivider indicating the final selected well site and the subsequent transmission grid main required to connect the final selected well site. SPECIFICATIONS : The pump installation and operation in its entirety shall be patterned after other City wells. Speci- fications for the procurement of the deep well tur- bine pump and companion equipment shall be approved by the Public Works Director prior to the advertising for bids. The specifications of the pump shall have the follow- ing limitations : (a) Maximum horse power = 150 (b) Maximum system pressure = 55 psi (c) Maximum draw down will be determined by the specified yield of the well and in no case will it exceed 20 feet without the approval of the Director. (d) The water supply well shall have a minimum capacity of 2 , 000 GPM unless otherwise -approved by the City Engineer. Fire flow shall be determined using the Insurance Service Office "Guide for Determination of Required Fire Flow" (1972) or as designated by the City of Fresno Fire Department. Adjustment of various fees, charges, credits and refunds for the above-mentioned revision shall be mutually agreed on between the Subdivider and the City. d. Sanitary sewer extensions and services shall be provided in accordance with applicable provisions of Chapter 9, Article 5 of the Fresno Municipal Code and all applicable charges shall apply. e. Lot drainage shall be in accordance with Section 13-120. 2905 (f) of the Fresno Municipal Code. f. Any temporary storm water retention basins con- structed or enlarged to serve this Tract shall be fenced in accordance with City Standards within seven (7) days from the time said basins become operational, or as directed by the Engineer. g. Perform and construct all work shown on the attached plans, City of Fresno Drawing Nos. 10-C-4026 through 10-C-4036, (Water Job No. 3238) 15-C-4455 through 15-C-4470, Storm Drainage Plans Nos. AH-3-1 through AH-3-7, unless specifically omitted herein. h. Reference is made to the requirement of the con- struction of N. Blythe Avenue from Shaw to Gates as depicted on the City of Fresno Drawings numbered 15-C-4468 and 15-C-4469. The completion date for this work shall be November 30, 1980. This com- pletion date is separate and apart from any other completion date for other improvements to be con- structed pursuant to this agreement, and shall not prevent the acceptance of said other improvements by City in event their completion dates precede the completion date for said Blythe Avenue construction. -3- The security posted in accordance with this agree- ment shall not be released in whole or in part for any improvements required pursuant to this agree- ment until all of the work has been accepted by the City. i. The Subdivider has been required to provide for the widening of the west half of the Herndon Canal Bridge at Gates Avenue. With respect to this requirement, the City is currently considering an ordinance that will address fees and reimbursements for the con- struction of bridges in the Urban Growth Management Area. Should the ordinance be adopted, the City agrees to reimburse the Subdivider through fees collected for all costs beyond his obligation as may ultimately be provided for by ordinance in the event that such ordinance is adopted. In the event such ordinance is not adopted, the City plans to collect a fee as development occurs on the property northeast of Tract No. 3116 for that pro- perty ' s portion of the cost of the bridge widening (1/4 of the bridge) . Any fees collected for this purpose will then be reimbursed to the Subdivider of Tract No. 3116. j . The Subdivider has been required to reconstruct the east side of N. Gates Avenue. As development occurs :D y � on the property fronting this portion of N. Gates, it is planned to collect a fee for that property' s portion of the cost of construction of N. Gates Ave- nue. Any fees collected for this purpose will then be reimbursed to the Subdivider of Tract No. 3116 . k. The Subdivider has deposited with the City the sum of $170, 508 . 24 for the following: 1. Inspection Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 33, 399 . 60 '- 2. Intersection Signing, 7 @ $70. 00 . . . . . . . . . . $ 490 . 00' 3. Traffic Regulatory Signing, 5 @ $35. 00 . . . . $ 175 . 00 4 . Street Trees, 225 @ $25. 00 . . . . . . . . . . . . . . . . $ 6, 375 . 00 5. Temporary Ponding Maintenance Fee. . . . . . . . . $ 3, 000 . 00 6 . Sewer Trench Water Compaction Charge, 4375 C.Y. @ $0. 04 . . . . . . . . . . . . . . . . . . . . . . . . . $ 175 . 00 7. U.G.M. Traffic Signal Charge; 99 . 11 AC. @ $300. 00 = $29, 733 less $4 , 863. . . . . . . . . . . $ 24 , 870. 00 8 . U.G.M. Major Street Charge; (Zone C) 99 . 11 AC. @ $855. 00 = $84, 739 .05 less $54 , 640. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30, 098 . 55 9. Sanitary Sewer Fees. . . . . . . . . . . . . . . . . . . . . . . $ 29 , 711. 611-' a. Oversize, 90 . 78 AC. @ $180. 00. . . . . . . . . . . . . . . $16 , 340 . 40 b. Lateral, 2600. 52 LF. @ $5. 00. . . . . . . . . . . . . . . . . $13 , 002. 60 C. Plan Review Fee. . . . . . . . . $ 368. 61 (Note : Major Facilities Fee is to be Paid at Time of Development) Total Sewer Charges. . . . . . . . . . $29 , 711. 61 -4- 10. Water Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $109 , 363 . 18 a. U.G.M. Well Development Charge (137) 96. 37 Ac. @ $310. 00 . . . . $29 , 874 . 70 (138) 3. 03 AC. @ $310. 00. . . . . $ 939 . 30 ,'- b. 39 . 30`b. Fire Hydrant Charge 2, 976, 021 SF. @ $0. 0125 $37 , 200 . 26 "- C. Trans. Grid Main 99. 40 AC. @ $375. 00. . . . . $ 37, 275. 00 d. Plan Review Fee. . . . . . . . . $ 928 . 92 e. "Wet-Tie" Charge. . . . . . . . $ 3, 145. 00 Total Water Charges. . . . . . . . . . $109, 363 .18 11 . Water Credits/Reimbursements a. Transmission Grid Main Credits/Reimbursements Total Credits/ Reimbursements. . . . . . . . . ($- 58,299. 00) 37S° Present Credits. . . . . . . . . $ 37 , 275 . 00 ($ 37 , 275. 00) Subtotal. . . . . . . . . . . $ 21 , 024 . 00 Reimbursement Due Upon Completion of Water Main Installation. . . . . . . $ 4 ,500 . 00 Future Reimbursements • in Accordance with FMC Section 14-107. 1 (d) (1) . . $ 16, 524 . 00 b. Water Supply Well Credits/Reimbursement Estimated Well Construc- tion Cost*. . . . . . . . . . . . . . $125, 000. 00 Present Well Fee Credit 96. 37 AC. @ $310. 00. . . . . $ 29, 874 . 70 ($ 29 , 874 . 70) (Well Site No. 137) Future Reimbursements in Accordance with FMC Section 14-107 .1 (d) (2) . . $ 95, 125. 30 C . Fire Hydrant Reimburse- ments (future) 18 ea. @ $300.00 ea. . . . . $ 5,400 . 00 Total Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $170 , 508 . 24 * Actual Reimbursements to be determined by audit. 7. Subdivider has paid to the City of Fresno, in accordance with Article 13, Chapter 13 of the Fresno Municipal Code, the re- quired fee to defray the costs of constructing planned local drain- age facilities for the removal of surface and storm waters from the subdivision. -5- 7a. The Subdivider hereby allocates the following described property for use as a temporary facility to alleviate the flooding and drainage problems anticipated to be caused by this subdivision and its improvements until such time as the City, through its Public Works Director, releases in writing such property from such use : That portion of Lot 986 of Bullard Lands Irrigated, Subdivision No. 6 as shown on the Map thereof recorded in Book 8 of Plats at Page 25 , Fresno County Records , described as follows : Commencing at a point that bears North 380 54 ' 00" East, 47 . 00 feet and North 510 06 ' 00" West, 7 . 00 feet from the corner common to said Lot 986 and Lots 988 and 989 of said Bullard Lands Irrigated Subdivision No. 6 ; thence from said point, South 380 54 ' 00" West, 47. 00 feet; thence South 380 53 ' 00" West, 202 . 82 feet; thence North- westerly along a curve concave Southwesterly, whose radius point bears South 410 35 ' 08" West, with a radius of 11474 . 00 feet, through a central angle of 00 57 ' 09" , an arc length of 190 . 73 feet; thence North 00 18 ' 00" West, along a line 2. 00 feet East of and parallel with the West line of said Lot 986 , 312 . 89 feet; thence South 51° 06 ' 00" East, 388 . 28 feet to the point of commencement. 7b. Title to the above property is retained by the Subdivider. The Subdivider shall improve said facility pursuant to City approved construction plans and, upon completion of such improvements , the City shall be permitted to enter upon such property and maintain said facility in such a manner that the City sees fit until such written release is issued; provided, however, that the Subdivider agrees to indemnify and hold the City harmless from any liability which may occur as a result of the existence and use of the fa- cility or its maintenance. 7c. The Subdivider shall not commence any backfilling oper- ation of the temporary facility unless the Public Works Director so authorizes in writing. The Subdivider agrees that the City may deny issuance of any building permit relating to such property un- til the City issues its written release. 7d. No written release shall issue unless the City Engineer is satisfied that the temporary facility has been backfilled and com- pacted properly and all temporary drainage structures, such as in- lets , outlets , pipes, and similar structures , have been plugged, removed, and disposed of in accordance with the Standard Specifica- tions of the City. -6- 8 . It is agreed that the City shall inspect all work. All of the work and improvements and materials shall be done, performed and installed in strict accordance with the approved construction plans for said work on file in the Office of the City Engineer of the City and the Standard Specifications of the City, which said plans and specifications and standards are hereby referred to and adopted and made a part of this agreement. In case there are not any standard specifications of the City for any of said work, it is agreed that the same shall be done and performed in accordance with the standards and specifications of the State of California, Division of Highways . All of said work and improvements and mate- rials shall be done, performed and installed under the supervision of and to the satisfaction of the City Engineer of the City. 9 . Prior to the approval by the Council of the City of said final map the Subdivider shall furnish to the City: (a) Performance security in the sum of one million four hundred ten thousand eight hundred dollars ($1 , 410 , 800 . 00) which is equal to 100% of the total estimated cost of the work required. Five percent of said amount shall be cash or a certificate of deposit. All to be conditioned upon the faithful performance of this agreement and; (b) Payment security in the sum of seven hundred five thousand four hundred dollars ($705 ,400 . 00) which is equal to fifty percent of the total estimated cost of the work re- quired to secure payment to all contractors and subcontractors Performing work on said improvements and all persons fur- nishing labor, materials or equipment to them for said im- provement. Bonds shall be by one or more duly authorized corporate sureties subject to the approval of the City and on forms furnished by the City. (c) On acceptance of the required work, warranty security shall be furnished to or retained by the City, in the amount of twelve thousand five hundred fifty-four dollars ($12 , 554 . 00) , for guarantee and warranty of the work for a period of one year following acceptance against any defective work or labor -7- 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. (d) Any and all other improvement security as required by the Fresno Municipal Code, Section 12-1016 . (e) As a part of the obligation of the Subdivider and in addition to any and all furnishing for faithful performance of this agreement, the Subdivider agrees that the City shall be entitled to costs and reasonable expenses and fees , in- cluding reasonable attorney' s fees which may be incurred in effectively enforcing the obligation secured. 10 . The City shall not be liable to the Subdivider or to any other person, firm or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on or about the subdivision of said land covered by this agreement, or any part thereof. The Subdivider hereby releases and agrees to indemnify and save the City harmless from and against any and all injuries to and deaths of persons , and all claims, demands, costs , loss, damage and liability, how- soever same may be caused, resulting directly or indirectly from the performance of any or all work to be done in and upon the 'street rights-of-way in said subdivision and upon the premises adjacent thereto pursuant to this agreement, and also from all injuries to and deaths of persons, and all claims, demands , costs loss, damage and liability, howsoever same may be caused, either directly or indirectly made or suffered by the Subdivider, the Subdivier ' s agents, employees and subcontractors, while engaged in the performance of said work. The Subdivider further agrees that the use for any purpose and by any person of any and all of the streets and improvements hereinbefore specified, shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein, and for one year thereafter. This obligation shall be secured by the security posted pursuant to the provisions of the Fresno Municipal Code, Sections 12-1016 (a) and 12-1016 (d) . -8- 11. Certificates of Occupancy shall be issued by the Build- ing Official in accordance with the Fresno City Municipal Code. In any case no Certificate of Occupancy shall be issued until all of each of the following improvements have been constructed or installed to the satisfaction of the Engineer : a. Water and Sewer Systems (within Tracts) . b. Water and Sewer Systems (UGM extensions) . C. Storm Drain Facilities . d. Temporary or permanent drainage pond . e. Streets (including finish surface of asphalt concrete pavement) within Tracts . The issuance of any occupancy permits by the City for dwellings located within said subdivision shall not be construed in any manner to constitute an acceptance and approval of any or all of the streets and improvements in said subdivision . 12 . The Subdivider shall remedy any defective work or labor or any defective materials and pay for any damage to other work re- sulting therefrom which shall occur within a period of one year from the date of acceptance of the work. This obligation shall be secured as provided for in Paragraph 9 (c) of this Agreement. 13 . The Subdivider and his subcontractors shall pay for any materials , provisions, and other supplies 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 the City pur- suant to Section 3800 of the Labor Code, a certificate of workers ' compensation and shall maintain a valid policy of workers ' com- pensation insurance for the duration of the period of construction. -9- 14 . Initial compaction and soil tests for street , sewer, and other work within the public right of way shall be ordered by and paid for by the City of Fresno. Sewer and utility trench tests shall be taken in varying locations and depths as required by the Engineer. Compaction tests failing to meet the City ' s requirements , shall be reordered by the City of Fresno from the same testing laboratory . Billing for the re- quired retests shall be made directly to the Subdivider or his agent for payment. Compaction test for water facilities in- stalled by the City of Fresno shall be paid for by the City of Fresno. 15. The Subdivider shall comply with Street , Plumbing , Building, Electrical , Zoning Codes and any other Codes of the City. 16. It shall be the responsibility of the Subidivder to coordinate all work done by his contractors and subcontractors , such as scheduling the sequence of operations and the deter- mination of liability if one operation delays another. In no case shall representatives of the City of Fresno 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 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 Sub- divider to notify the Engineer may cause delay for which the Subdivider shall be solely responsible . 17. Whenever the Subdivider varies the period during which work is carried on each day, he shall give due notice to the Engineer so that proper inspection may be provided. Any work done in the absence of the 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 un- suitable materials may be rejected, notwithstanding the fact that such defective work and unsuitable materials have been previously overlooked by the Engineer or Inspector and accepted. -10- 18 . Anv 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 release of bond, or final acceptance of completed work . 19. 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 in the subdivision until the paving of the streets is 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 suffi- cient frequency to prevent the scattering of dust , by wind or the activity of vehicles and equipment , on to 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 Sub- divider to comply with the provisions of this paragraph forth- with. Such notice may be personally served upon the Sub- divider, or, if the Subdivider is not an individual , upon any person who has signed this agreement on behalf of the Sub- divider , or, at the election of the City Engineer, such notice may be 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 there- after 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 the 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 the City of such sprinkling or oiling . When the surfacing on any existing -11- 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 con- dition at all times between the commencement and final com- pletion and adequate dust control shall be maintained during these operations. 21. The Subdivider shall install all street improvements in accordance with Section 12-1012 of the Municipal Code of the City of Fresno and the construction plans. 22 . 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. 23. Time is of the essence of this agreement, and the same shall bind and inure to the benefit of the parties hereto, their successors and assigns. 1 24 . 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. -12- The parties have executed this agreement on the day and year first above written. CITY OF FRESNO, a Municipal Corporation ATTEST: By "�l JACQUELINEL. RYLE, i 10 D rector Ci g Clerk - - B -Atm, . �4�t.Gc , D puty SUBDIVIDER: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION APPROVED AS TO FORM: By JAMES A. McKELVEY, By � City Atto ney By MAX A. AYES Title G�p� ESTELLE L'. HAY R. N. KLEIN, Witness DATED: November 20, 1979 ±I�OBn - S S1iN 0 UDITH ANN SWENSCN 99- *Attach Notary Acknowledgment MAX HAYES PLUMBING AND HEATING COMPANY, INC. PENSION TRUST By By ,,1- -� ,..� STA;'E OF CALIFORNIA, ss. COUNTY OF Fresno ` November 19 197 ON bef%q me:the-EInde signed, a Notary Public in and for said State, personally appeared CORPORATE ACKNOWLEDGMENT --_ --_ - --- - State of California _____,_ _County of_____--__ Fresno ------ .----}S.S. On this 1-9 day of___November 19 79 , before me Dolores F.--Dahlin ------------------- ' -------------------- ---------------------------' a Notary Public in and E.or said----- Yiesno------------------- County, personally appeared----------------------------------------------------------------------- -- -- -------- (SEAL) Bruce E. Tri_a -------------------- ------------------- --------------------------------------------------------------------------------------- known to me to be the-_-_____--_ Asst. Vice President — Trut - ------------------------------------- Trus -t and--------------_-------------Drew W. Anderson _I known to me to be the Sr,--Property Management Ofi_icer of the BankOT America NT&SA the Corporation that executed the within instrument, and also known to me to be the person__-___ who executed the within instrument, on behalf of the Corporation herein named, and acknowl- edged to me that such Corporation executed the same, and further acknowledged to me that such Corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors. OFFICIAL SEAL WITNESSmy hand as off'ci#1 seal. `J POI ORES F. DA41,IN ;L � -* NOTARY PUBLIC - CALIFORNIA """"""-"""' """""""""'�"�`'""�"-" `�'"" """"! " - -------------------------------------- Fresno FRESNO COUNTY Notary Public in and for said---------------------------------------------------- County and State. My comm. expires MAY 3. 1980 My commission expires______________Mai' 3-----------______- 1980 ►•+ewx +2-67 - ----- --------