HomeMy WebLinkAboutT-3730 - Agreement/Covenant - 6/20/2006 r
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AT_.MIN. PAST-V- . __M
PL5ASE CONFORM 87010904 JAN 2 71987
FRESNO COJNTY, CALIFORNIA
GALEN LARRSfJON, Covp"Y Rrder
LFEE-'-
13YDEPUTYRECO
-----------------------ABOVE SPACE FOR RECORDER ' S USE--------------------
P. W. File No. 8257 Public Works Departmen
City of Fresno
SUBDIVISION AGREEMENT
Tract No. 3730
THIS AGREEMENT is made this 2O U day of 1987 , by
and between the City of Fresno, a Municipal Co poration, hereinafter
designated and called the "City, " and Dale W. Cross and Carol A. Cross,
Husband and wife as Community Property, 9648 E. Ellery Avenue,
Clovis, CA 93612, hereinafter 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 as Tract No. 3730, Cottonwood Creek
Village, 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 acceptance
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
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 consideration of the acceptance
of the offers of dedication by the City of Fresno .
AGREEMENT
In consideration of the acceptance of the offers of dedication of the
streets, highways , public ways , easements and facilities 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 Subdivider 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, 1987 , to the satisfaction
of the Director of Public Works of the City. Issuance of building
permits for any structure within the subdivision shall conform to the
requirements of the Uniform Fire Code. The subdivider ' s attention is
particularly called to Sections 10 . 207(a) , 10. 301 (c) and 10. 301(d) shown
in Exhibit "A" attached hereto and hereby made a part of this Agreement.
No occupancy permit shall be issued until an approved "all weather"
street frontage and access is constructed . 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. When
a delay occurs due to unforeseen causes beyond the control and without
the fault or negligence of the Developer, the time of completion may be
extended for a period justified by the effect of such delay on the
completion of the work . The Developer shall file a written request for a
time extension with the Director of Public Works prior to the above noted
date, who shall ascertain the facts and determine the extent of
5 . The work and improvements , more specifically shown on the plans
referenced below, shall be done in accordance 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 12 .
6 . The work and improvements are as follows :
a . Construct all landmarks , monuments and lot corners required
to locate land divisions shown on the Final Map .
"Pursuant to Section 66497 of the State Subdivision Map Act, prior to
the City ' s final acceptance of the subdivision and release of
securities , the Subdivider shall submit evidence to the City of
Fresno of payment and receipt thereof by the engineer or surveyor for
the final setting of all monuments required in the subdivision. "
b. All utility systems shall be installed underground .
Subdivider ' s attention is directed to the installation of street
lights in accordance with Resolution No. 68-187 and Resolution
No. 78-522 or any amendments or modifications which may be adopted by
Council prior to the actual installation of the lights. The
Subdivider shall construct a complete undergound 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 or any
amendments or modifications which may be adopted by Council prior to
the actual installation of the lights and shall be approved by the
City Traffic Engineer.
C. Water main extensions and services shall be provided in
accordance with applicable provisions of Chapter 14 , Article 1 of the
Fresno Municipal Code and all applicable charges shall apply.
d. San :ary 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 . 7012
of the Fresno Municipal Code.
f . 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 the Fresno Municipal Code, Subdivider
requests that City acquire the necessary easement or dedication
through negotiation or the lawful exercise of 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 in cash or
certificate of deposit or by instrument of credit the sums required
by the Development Department Director pursuant to the Addendum.
Such sums shall be security to pay the City the initial cost to
acquire the necessary easement, including but not limited to: just
compensation and damages for the interests acquired , City legal and
non-legal staff time as needed to attempt a negotiated purchase,
appraisal fees , court costs and the related expenditures mentioned in
the Addendum to acquire the easement through the lawful exercise of
g. Perform and construct all work shown on the approved plans
(City Drawing Nos . 10-C-4901 through 10-C-4902 inclusive and
15-C-6103 through 15-C-6105 inclusive) , unless specifically omitted
herein.
h. The Subdivider has deposited with the City the sum of Five
Thousand Six Hundred Eighty-Four and 67/100 Dollars ($5 , 684 . 67 ) for
the following :
(1) Inspection Fees $1 , 844 . 67
(2) Intersection Signing, 1 @ $90 .00 $90. 00
(3 ) Traffic Regulatory Signing, 1 @ $35 . 00 $35 . 00
(4) Street Trees , 9 @ $60 . 00 $540. 00
(5 ) FMFCD Drainage Fee $3 , 175 .00
TOTAL FEES AND CHARGES $5 , 684 . 67
7 , Subdivider has paid to the City of Fresno , in accordance with
Article 13 , Chapter 13 of the Fresno Municipal Code , the required fee to
defray the costs of constructing planned local drainage facilities for
the removal of surface and storm waters from the subdivision.
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 materials shall be done, performed and installed under
the inspection 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 Fifty Thousand Two
Hundred and 00/100 Dollars ($50, 200) , which is equal to 100% of the
total estimated cost of the work required . Five percent (5%) of said
amount ($2, 510 . 00) shall be cash or a Certificate of Deposit , all to
he nonAi ti onPA iinnn the faithful nerformanrp of th; nrr,-oo.+.��+� • �-
C . Any and all other improvement security as required by Fresno
Municipal Code, Section 12-1016 .
10. On acceptance of the required work, warranty security shall be
furnished to or retained by the City, in the amount of Two Thousand Five
Hundred Six and 00/100 Dollars ($2 , 506 .00) , 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 )
;,ear after final acceptance of the subdivision improvement.
11 . 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, howsoever . 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,
t,owsoever same may be caused, either directly or indirectly made or
suffered by the Subdivider , the Subdivider ' 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.
12. The Subdivider shall remedy any defective work or labor or An-
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 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 .
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
required retests shall be made directly to the Subdivider or his agent
for payment . Compaction test for water facilities installed 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 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
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 Subdivider 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
wftrri ^A nn nnnh AM\1 hn droll nivo Alin n-t ---- -- �L_+
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
Engineer or Inspector and accepted .
18 . 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 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 Lhereon 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 may be mailed to the Subdivider at his address on
file with the City Engineer. If , within twenty-four (24 ) hours after
such personal service of such notice or within forty-eight (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 aq
permanent surfacing within fourteen ( 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 .
20. The Subdivider shall install all street improvements in
accordance with Section 12-1012 of the Municipal Code of the City of
Fresno , the City of Fresno Standard Specifications , and the construction
plans .
21 . 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.
22 . 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 .
23 . 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 City.
The parties have executed this Agreement on the day and year first
above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
JAMES L. MARTIN
PUBLIC W�tKS RECTOR Dale W. Cros
ATTEST:
Carol A. Cross
OACQUELINE L. RYLE
City Clerk d
Byrn,/; ------_.
STATE OF CAL FOl A IAN ss.
in the year 19 87 .
COUNTY OF FRESNO JANUARY eared
On this 9TH day of personalty appeared
�o rhe undersigned, a Notary Public in and _Tsai, State Pei
ry:7il3T
1992 EcinoN 10.201.10.205
Division II
GENERAL PROVISIONS
Tampering with Fire Equipment
Sec 10.201.do person shall molest,tamper with,damage or otherwise disturb
any apparatus,equipment or appurtenance belonging to or under the supervision
and control of the fire depari-mcm without authonty from the chief or his
authonzcd rcprescntativc to do so.
Tampering with Fire Hydrant or Fire Appliance
Sec. 10.202,No person shall remove,tamper with or otherwise disturb any fire
hydrant or fire appliance rcquimd to be installed or maintained under the provi-
sions of this code except for the purpose of c.mineuishine fire,training purposes•
rechargine, or making necessary repairs, or when permitted by the fire depart.
ment. N%' en:vcr a fire appliance is removed as herein permitted. it shall be
replaced or reinstalled as soon as the purpose for which it was removed has been
accomplished.
Hydrant Use Approval
Sec. 10.203. No person shall use or operate any hydrant or other valves
installed on anv water system intended for use by the chief for fire suppression
purposes and which is accessible to any public highway,alley or private way open
to or generally used by the public,unless such person first secures a permit for use
from the chief.This section does not apply to the use of a hydrant or other valves
by a person employed by and authonzed to make such use by the water company
which supplies water to such hydrants or other valves.
Tampering with Barricades,etc.
Set. 10.20.3. No person. except a person authonzcd by the chief or a public
officer actino within the scope of his public duties,shall remove,unlock,destrov.
tamper with or otherwise molest in any manner any lock, gate.door, barricade.
chain, enclosure, sien. tag or seal which has been lawfully installed by the fire
department or by its order or under its control.
Closure of Roads or Trails
Sec. 10.205. (a)General.The chief may install one or more gates,cables or
other bamcades and securely lock the: same to prevent the use by unauthorized
persons of any road that is not a Public hiehway and over which the lett
department has the richt to pass, whether by easement. license, municipal
ownership or otherwise. for purposes relating to fire prevention or control.
provided such action does not preclude the authonzcd users of such road or trail
from usine the same.
(b)Trespassing. No person,except a public officer acting within the scope of
his public duucs,shall trespass upon any road or trail which has been closed and
obstructed in the manner authorized by this section without the express peri.iu.
sion of the chief. nor shall any person park any vehicle so as to obstruct the
entrance to such road or trail.
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10.206-10.208 UNIFORM FIRE CODE
Obstruction of Fire Protection Equipment
Sec. 10.:06. No person shall place or keep any post.fence.vehicle.growth.
trash. storage or other material or thing near any fire hydrant. fire department
connection or fire protection system control valve that would prevent such
equipment or hydrant from being immediately discernible or in any other manner
deter or hinder the fire department from gaining immediate access to said
equipment or hydrant. A minimum 3-foot clear space shall be maintained around
the circumicrcnce of the fire hydrants except as otherwise required or approved by
the chief.
Access Roadways for Fire Apparatus
Sec. 10.:07. (a) Required Construction. Every building hereafter con-
structed shall be accessible to fire department apparatus byµay of access road-
ways with all-weather driving surface of not less than 20 feet of unobstructed
Width.with adequate roadway turnine radius capable of supporting the imposed
loads of fire apparatus and haying a minimum of 13 feet 6 inches of vertical
clearance.Dead-end fire department access roads in excess of 150 feet lone shall
be provided with approved provisions for the turning around of fire department
apparatus.
EXCEPTION: When there tit not more than two Group R. Division 3 or Si
Occuoanctes as defined in the Building Code.the mouuenxnt of this section rruy be
modified when.in the opinion of the chr:f.fere-fiehtine or rescue operations would
not be rmpaued.
(b) Obstructing. The required width of access roadways shall not be
obstructed in any manner. including parking of vehicles.NO PARKING sires or
other appropriate notice.or bothprohibiting obstructions may be required and
shall be maintained.
(e) Extent. The access roadway shall be extended to within 150 feet of all
portions of the extenor walls of the first story of any building. Where the access
roadway canna be provided.approved fire protection system or systems shall be
provided as rtau=d and approved by the chief.
(d)Fire-protection Alternate.Where fire-protection systems approved by the
chief art provided.the above required clearance may be modified.
(e)Oyersizing.The chief shall have the authority to require an increase in the
minimum access widths where such width is not adequate for fire or rescue
operations.
(f)Bridges.Where a bridge is required to be used as access under this section.
it shall be constructed and maintained in accordance with the applicable sections
of the Building Code and using design live loading sufficient to carry the imposed
loads of the fire apparatus.
Premises Identification
Sec. 10.203. Approved numbers or addresses shall be placed on all nesv and
existing buildings in such a position as to be plainly visible and legible from the
street or road fronurtc the property. Said numbers shall contrast with their
background.
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f
190:EDITION 10.:09.10.301
Key Box
Sec. 10.209.«-hvn access to or within a structure or an arca is unduly difficult j
because of secured openings or «here immediate access is necessar for life.
saying or fire-fighting purposes.the chief may require a key box to be installed in `
an accessible location.The key box shall be a type approved by the chief and shall �
contain keys to gain ncccssan access as required b} the chicf.
Division III
INSTALLATION AND MAINTENANCE OF FIRE-
PROTECTION, LIFE-SAFETY SYSTEMS AND
APPLIANCES
Installation
Scc 10.301.(a)Type Required.The chief shall designate the type and number
of fire appliances to be installed and maintained in and upon all buildings and
premises in the jurisdiction other than private d«ellings. This shall be done
according to the relative severity of probable fire, including the rapidity with
which it may spread. Such appliances shall be of a type suitable for the probable
class of fire associated with-such building_or premises and shall have approval of
the chief.
Portable fire eztin_cuishers shall be in accordance with U.F.C. Standard No.
10-I.
(b) Special ]Hazards. In occupancies of an especially hazardous nature or e
where special hazards exist in addition to the normal hazard of the occupancy.or i
«•here access for fire apparatus is unduly difficult. additional safeguards may be
required consisting of additional fire appliance units. more than one type of
appliance.or special systems suitable for the protection of the hazard involved.
Such devices or appliances may consist of automatic fire alarm systems.automat-
ic sonWcr or water spray systems. standpipe and hose. fixed or portable fug
cxtincuishcrs. suitable asbestos blankets. brcathine apparatus. manual or auto-
matic covers. carbon dioxide. foam. halogenated and dry chemical or other
special firc-extin.euisning systems. «here such systems arc installed. they shall '-
be in accordance with the applicable uniform Fire Code Standards or standards of
the!rational Fire Protection ,association when uniform Fire Code Standards do
not apply.
�— (c) NN'ater Supply. ,an approved water supply capable of supplying required
fire flow for fire protection shall be provided to all premises upon wnich buildings
or portions of buildings are hereafter constructed. %%-hen any portion of the
building protected is in excess of 150 fret from a water supply on a public street.
there shall be provided. when required by the chief. on-site fire hydrants and
mains capable of supplying the required tug Clow.
Water supplymay consist of reservoirs. pressure tanks.elevated tanks. water
mains or otner fixed system capable of supplying the required fire flow. In setting
the requirements for fire flow,the chief may be guided by the standard published
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10.301.10.303 UNIFORM FIRE CODE
by the Insurance Services Office. "Guide for Determination of Required Firc
Flow "
The location. number and hype of fire hydrants connected to a water supply
capable of delivering the required fire flow shall be provided on the public street
or on the site of the premises to be protected as reauired and approved by the chief.
All hydrants shall be accessible to the circ department apparatus by roadways
meeting the requirements of Section 10.07.
(dl Timine of Installation.When fire protection facilities are to be installed by
the developer. such facilities including all surface access roads shall be installed
and made serviceable pnor to and during the time of construction.When altcmaic
methods of protection.as approved by the chief.arc provided.the above may be
modified or waived.
(c)Approval and Testing. All fire alarm systems. fire hydrant systems. fiire-
extinguishing systems (including automatic sprinklers). wet and dry standpipes.
basement inici pipes. and other fire-protection systems and pertinents thereto
shall meet the ar+proyal of the Circ department as to installation and location and
shali be subicct to such periodic tests as required by the chief. Plans and
specifications shall be submitted to the fire department for review and approval
prior to construction.
s
Maintenance
Sec. 10.302.(a)General. All sprinkler systems. fire hvd:ant systems.stand-
: pts systems. tire alarm systems, pormbie fire extinguishers. smoke and heat
ventilators. smoke-removal systcros and other fire-protective or extinguishing
j systems or appliances shall be maintained in an operative condition at 311 times
and shall be replaced or repaired where detective.Fire-protective or extinguishing
€ systems coverage. spacing and specifications shall be maintained in accordance
€ with recognized standards at all times.Such systems shall be extended.altered or
_ augmented as necessary to maintain and continue protection whenever an%
€ building so eauinm-d is altered. remodeled or added to. All additions. rep::;rs.
alterations and scr•tctn_e shall be in accordance with recognized standards.
F.\c11vrio.N: Systems not required by this or any otner code need not t---
extenued.auereu nor augmented.
Soda-acid.foam. loaded stream.antifreeze and water lire extinguishers of the
inserting types shall not be recharged or placed in service for fire protection use.
(b)Systems in llieh-rise Buildirips.The building owner shall be responsible
for assunne that the fire and life safety systems required by Sections 1307 and
1907 of the Uniform iiuildine Code shall be maintained in an operable condition
at all times. Unless othcrwisc required by the chief. quarterly tests of such
systems shall be conducted by qualified persons approved by the chief. A%%mien
record shall b,maintained and be made available to the inspection autnonty.
Vapor Liquid and Liquefied Gas Extinguishers
Sec. IU.303.(al Prohibited Types.Vaporizing liquid extinguishers containing
carbon tetrachlonde or chlorobromamcthane shall not be installed or used.in any
location for fire protection use.
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ADDENDUM TO SUBDIVISION AGREEMENT
(RIGHT-OF-WAY ACQUISTION)
WHEREAS Subdivider is unable to acquire and dedicate to
the City all easements and rights-of-way required for street
purposes related to this agreement prior to final map approval ;
WHEREAS Subdivider desires that acquisition of the
required right-of-ways be diligently pursued ;
WHEREAS Subdivider has notified the Development Department
Director of his inability to acquire the necessary easements
and rights-of-way, and has requested that City commence such
proceedings as are necessary and proper to acquire said
easements and rights-of-way through negotiation and/or the
lawful exercise of its power of eminent domain; and
WHEREAS the City hereby agrees to use said power of
eminent domain at the specific request and instance of the
Subdivider;
NOW THEREFORE IT IS AGREED between Subdivider and City as
follows:
1 . Subdivider shall deposit , upon execution of this
agreement, the sums set out in paragraphs 2 and 12 , below.
Such sums shall be utilized by the City to acquire the
necessary easement and rights-of-way, including but not limited
to : just compensation and damages for the interests acquired,
City legal and non-legal staff time as needed to attempt a
negotiated purchase, appraisal fees', court costs and the related
expenditures necessary to acquire the easement right-of-way
through the lawful exercise of the City' s power of Eminent
Domain. If deposited funds are less than the actual full cost
to acquire all necessary rights-of-way, the Subdivider shall
remit to the City such additional sums as may be required from
time to time to prosecute the matter to conclusion, such
further payments to be made within ten (10) days of the mailing
to the Subdivider of a notice requesting such additional
costs . If deposited sums exceed the actual full cost to
acquire the subject rights-of-way, then at the conclusion of
acquisition proceedings City shall refund the difference as
soon as the City determines the amount of such excess .
2 . Said initial deposit shall include funds necessary for
the items specified in Paragraph 15 , captioned "Summary of
Initial Deposit . "
3 . Subdivider shall have the option of providing
appraisal and title reports in lieu of deposit of appraisal and
title report fees , providing said reports are issued within six
months of the anticipated Resolution Of Necessity authorizing
the condemnation proceedings.
4 . Subdivider shall have the further option of engaging
,his own attorney to negotiate and/or prosecute a condemnation
action for the required easement acquisition. Upon
Subdivider ' s election. no later than twenty (20) days after the
Council of the City of Fresno approves this agreement, of a
reputable and qualified attorney of his choice, subject to
approval of the City Attorney, City shall appoint said attorney
as a special deputy city attorney, provided said attorney
executes an agreement with City for that purpose. Said special
attorney must , within thirty (30) days of his appointment, file
an action in eminent domain, and shall. apply for an order for
immediate possession of the subject property. As soon as is
legally possible after commencing said proceedings in eminent
domain and applying for said order, said special attorney shall
obtain an order for immediate possession pursuant to Section
1255 . 410 et seq . of the .Code of Civil Procedure . Said special
attorney may draw upon the funds deposited hereunder for
attorney ' s fees and costs by submitting to the City Attorney
for his review and approval an itemized written request
therefor endorsed by Subdivider .
5 . Subdivider acknowledges that these cash deposits are
estimates only and will increase as the litigation proceeds.
Subdivider agrees to pay all proper and necessary charges
incurred or paid by City in pursuing the condemnation
proceedings to a settlement or final judgment . City incurs no
liability for its failure to properly estimate the actual costs
incurred in the condemnation action.
6. Following Subdivider ' s initial deposit, City may give
notice to Subdivider that said Subdivider shall deposit such
additional sums as City deems necessary to continue or cause
the continuation of prosecution of the proceedings . Subdivider
shall pay all such sums within ten (10) days of the mailing of
said notice . The notice shall state what costs have been
incurred to date, what additional costs are anticipated; and
how City intends to apply these additional deposits to, for
example, such items as additional compensation, damages, court
costs, expert witness fees, City Attorney staff time, City
Attorney support staff time, deposition costs , right-of-way
staff time, copying costs, mailing costs , process server fees,
right-of-way staff fees and costs , property owners ' litigation
expenses, costs and attorney' s fees (when required by law) and
such other and further litigation and administrative costs as
City shall deem necessary to pursue the condemnation action to
final judgment . Subdivider ' s dissatisfaction with the adequacy
or sufficiency of said notice for any reason shall not excuse
Subdivider from any duty or obligation, including the
obligation to deposit additional sums . 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
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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 he deems necessary and appropriate
in the exercise of his sole professional judgment and
discretion.
7 . 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 . Subdivider shall have waived and in such event does
hereby waive all his development entitlements to
build the subject project , and City may summarily
revoke any and all permits issued to build such
project .
b. City may, in its sole discretion, elect to terminate
any acquisition proceedings commenced pursuant to
this agreement. If City so elects , Subdivider shall
indemnify and hold City harmless from any and all
costs , fees , damages and expenses incurred as a
result of said proceedings and the termination and
abandonment thereof .
C. In the alternative, 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 said amounts reflect costs 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 .
d . Compliance with the terms and conditions of this
agreement is a condition of approval of any and all
UGM, tract map and subdivision map projects which are
the subject of the principal agreement to which this
ancillary agreement is a part .
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e. City shall have a lien upon any and all performance,
payment and other bonds or deposits posted by or for
Subdivider in conjunction with said development as
security for the payment of any costs , charges or
fees called for by. this agreement .
f. Upon recordation of the Subdivision Agreement to
which this Addendum is incorporated by reference,
City shall have a lien upon the lands described in
paragraph 1 of said Subdivision Agreement as security
for the payment of any costs, charges or fees called
for by this agreement .
8 . At the conclusion of any condemnation proceedings,
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 queston or challenge any use of funds
set forth in such accounting and may appeal same to the City
Council .
9 . 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 and be credited for the benefit of Subdivider , less the
City ' s reasonable or actual costs of administering said account
and less any other charges which may be required or authorized
by law. The parties agree that five (5) per cent of the
amount(s) deposited is the reasonable cost of administering
said account .
10. 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,
an award to the property owner of his litigation expenses and
reasonable attorney' s fees and those sanctions imposed by the
Permit Streamlining Act (Government Code sections 65920, et
seg. ) .
11 . No partial invalidity of this agreement shall
invalidate the remainder .
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12. Summary of Initial Deposit .
Amount Deposited : Item:
$ 9 , 400 . 00 Original valuation or property
acquisition cost .
$ E *Initial Appraisal fees .
$ 1 , 000 . 00 Right-of-way staff time .
$ E *Costs of acquiring title report(s) .
$ 4 , 160 . 00 Attorney ' s fees and costs (assuming a
negotiated settlement after filing of
complaint. in eminent domain) .
$ 0 **Other :
$ 0 **Other :
$ 0 **Other :
$ 14 , 560 Subtotal
$ 1,440 . 00 Contingency (ten percent of subtotal )
$ 16 , 000 TOTAL
NOTES:
*An "E" in the "Amount Deposited" column indicates that
Subdivider has elected the option(s) available in paragraph 3
of this Addendum.
**Enter 110" in the "Amount Deposited" column if there are no
other costs .
GSA: : sn
7690g/170
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