HomeMy WebLinkAboutT-3928 - Agreement/Covenant - 6/26/2006 • RECORDID AT REQUEST OF
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DEC 16 1988
FRESNO COUNTY.CALIFORNIA
GALEN LARS�ON.County Recorder
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SPACE ABOVE FO�y)A 4BC*Eff -----------------
P. W. File No. 8558 Public Works Department
UGM No. 294 City of Fresno
APN: 312-071-11
SUBDIVISION AGREEMENT
Tract No. 3928
Trend Homes No. 16
THIS AGREEMENT is made this o� of ? 1988 , by
and between the City of Fresno, a Municipal Corporation, hereinafter
designated and called the "City, " and Trend Homes, Inc. , a California
Corporation. P. O. Box 16369, Fresno, California 93755, hereinafter
designated and called the "Subdivider. " without regard for number or
gender.
RECITALS
1. The Subdivider has presented to the City a certain final map of
a proposed subdivision of land owned by the Subdivider and located within
the corporate limits of the City, and known and described as Tract
No. 3928. Trend Homes No. 16, 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.
PRO 0 BY CITY COUNCIL d
19H 19 Fe
!4C ELINE RYLE,�sAT_Y CLERK
By�r.Oa�A _ yy"A4.wtf�?1L
DEPUTY
by Code. 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 apart 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
Subdivider._the time of completion may be extended for a period justified
by .the effect of such delay on the completion of the work. The
Subdivider 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 justifiable delays, if
any. The Director of Public Works shall give the Subdivider written
notice of his determination in writing, which shall be final and
conclusive.
5. The work and improvements, more specifically shown on the
referenced plans and made a part hereof, shall be done in accordance with
the construction standards contained in the City of Fresno Standard
Specifications. "City Standards" , adopted September 11. 1989 , by
Resolution No. 89-361 and as amended, at the sole cost and expense of the
Subdivider including all costs of engineering, inspection and testing.
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.
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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 Subdivider ' s 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 . 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 13-120.7012
of the Fresno Municipal Code.
f . All "Dead-End" Streets created by this subdivision shall be
barricaded in accordance with City Standards within seven (7) days
from the time said streets are surfaced, or as directed by the City
Engineer.
g. Any temporary storm water retention basins constructed 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 City Engineer.
h. 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.
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Snch 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
the City' s power of Eminent Domain. If deposited funds are less than
the actual full cost to acquire all necessary right-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 the conclusion,
such further payment to be made within ten (10) days of the mailing
to the Subdivider of a notice requesting such additional cost . If
deposited sums exceed the actual full cost to acquire the subject
right-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.
i . Perform and construct all work shown on the attached plans
(10-C-5204 through 10-C-5209 (5) sheets; Water Job No. 3672;
15-C-6511 through 15-C-6516 (6) sheets; and 15-AA-619) , unless
specifically omitted herein.
j . Install and complete all other street improvements required
by Section 12-1012 of the Fresno Municipal Code in accordance with
the City of Fresno standard Specifications and the construction plans.
k. The Subdivider has deposited with the City the sum of Eighty
Four Thousand Eight Hundred Seventeen and 12/100 Dollars ($84 , 817 . 12)
for the following:
(1) Inspection Fees $10, 998 .06
$16,441 .50 less $5, 443 . 48
Paid with Early Construction Agreement
(2) Monument Check Fee
71 Lots @ $25 .00/Lot (Min $200.00) $1,775.00
(3) Intersection Signing. 8 @ $140.00 $1. 120.00
(4 ) Traffic Regulatory Signing. 11 @ $35.00 $385.00
(5) Street Trees. 97 @ $60.00/Tree $5, 820.00
(6) FMFCD Drainage Fee $46.017.00
(7) Pond Maintenance Fee,
19,200 SF @ $0. 20/SF $3 , 840.00
(8) Sanitary Sewer Fees $-O-
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(a) Lateral Charge
Note: 1. West Clinton and North Blythe Avenues '
mains installed by Trend Homes , Inc.
2 . Major Facilities Fee is to be paid
at time of development.
--Total- Sewer Charges $-0-
(9) _. Water Charges $9, 462.06
- (a) Fire Hydrant Charge (Zone District R-1/UGM)
456,b14 SF @ $0.75/100 SF $3 ,420. 11
(b) UGM Well Development
Charge (Supply Well No. 301-5)
14 . 52 Ac @ $410.00/.Ac $5, 953 . 20
_ (c) Water-- Construction . Charge
71 Lots @ $1.25 /Lot $88 .75
Total Water Charges $9 , 462 . 06
(10) UGM Major Street Bridge Charge
(Zone District E-4 )
13. 50 Ac. @ $30.00/Ac ' $405 .00
(11) UGM Traffic Signal Charge, -
13 . 50 Ac @ $370.00/Ac $4 , 995 .00
TOTAL FEES AND CHARGES $84 , 817. 12
(12) Fee Deferrals-Present Credits-Future Reimbursements
(a) UGM Fire Station Fee
Deferred by Covenant
Service Area No. 16
Zone District R-1/UGM
14 . 52 Ac @ 1, 242.00/Ac $18 .033 . 84
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Note: Trend Homes Reimbursement for
Fire Station No. 16 completed. Therefore
acclerated rates apply
Note: Trend Homes Reimbursement for
Fire Station No. 16 completed, therefore,
acclevated rates aply
(b) UGM Neighborhood Park Fee
r Deferred by Covenant
Service Area No. 4
Zone District R-1/UGM
14 . 52 Ac @ 980.00/Ac $14 , 229 . 60
(c) UGM Trunk Sewer Fee
Deferred by Covenant
- Service Area (Cornelia)
Zone District R-1/UGM
13 . 50 Ac @ 445 . 00/Ac $6,007. 50
(d) Sanitary- Sewer Oversize Charge
Present Credit-Future Reimbursement
14 . 52 Ac @ 240.00/Ac $3 , 484 . 80
Less Oversize Credits [$4 , 986. 40]
Net Charge $-0-
Future Reimbursements shall be made in accordance with
Section 9-503 . 2 of the Fresno Municipal Code
(UGM Reimbursement Area No. 23)
(e) Transmission Grid Main Charge -
Present Credit-Future Reimbursement
. 14 .52 Ac @ 440.00/Ac $6. 388 . 80
Less TGM Credits [$20. 685.00]
Net Charge $-0-
Future Reimbursements shall be made in accordance with
Section 14-107. 1(d) of the Fresno Municipal Code
(UGM Reimbursement Area B)
(f) UGM Major Street Charge
Present Credit-Future Reimbursement
Zone E-4
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13 . 50 Ac @ 1, 565 .00/Ac $21, 127. 50
Less Major Street Credit [$104 ,481.00]
Net Charge $-0-
Future Reimbursements shall be made in accordance with
Section 11-226(f) of the Fresno Municipal Code
(g) Fire Hydrant Reimbursement
5 F.H. @ 300. 00 /F.H. $1, 500.00
Future Reimbursements shall be made in accordance with
Section 14-107 . 1b of the Fresno Municipal Code
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
w
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:
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a. Performance security in the sum of Four Hundred Forty Seven
Thousand Six Hundred and 00/100 Dollars ($447, 600.00) , which is equal
to 100% of the total estimated cost of the work required. Five
percent (5%) of said amount, Twenty Two Thousand Three Hundred Eighty
Dollars ($22, 380) , 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 Two Hundred Twenty Three
Thousand Eight Hundred Dollars ($223 , 800) , which is equal to 50% of
the total estimated cost of the work required 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. 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. 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 Seven Thousand
Four Hundred Seventy Six Dollars ($7, 476) , 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 .
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
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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.
howsoever 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,ahy .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 any
defective materials and pay for any damage to other work resulting
therefrom which shall occur within a period of one ( 1) year from the date
of acceptance of the work.
- 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.
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14 . Initial soils compaction testing for public utility improvement
work within the right-of-way shall be ordered by and paid for by the City
of Fresno. Public utility improvements shall include street surface
improvements. sanitary and storm sewers, City water facilities and
irrigation lines:' All other compaction testing- for private utility
installations shall be paid for by the Subdivider cr his agent.
Compaction testing performed for determination of compliance with City
Standard Specifications shrill at all times remain under the control and
direction of the City Engineer who shall determine locations and depths
to be tested . Any compaction tests failing to meet the City' s
requirements shall be reordered by the City and paid for by the
Subdivider or his agent. Billing for the private utility tests and any
required retesting due to failures shall be made directly to the
Subdivider or his agent.
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 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.
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17. 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 . If Subdivider fails to duly
notify City as herein required, 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
unsuitable materials may bg. 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 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.
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. 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 as
the City Engineer shall determine, and the Subdivider agrees to pay to
City forthwith, upon receipt of billing therefor. 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 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. 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.
21 . 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.
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_ A
Y
1RPORATE ACKNOWLEDGMENT No.202
State of California On this thel3th day of October 88
19—,before me,
SS.
County of Fresno WENDY KAY CHIODINI
the undersigned Notary Public,personally appeared
Robert A. McCaffrey and John A. Bonadelle
S personally known to me ,
I] proved tome on the basis of satisfactory evidence
to be the person(s)who executed the within in§j,rumellt as
OFFICIAL SEAL President/Vice President-or on behalf ol�hne comp al�ion Rerein
WENDY KAY CHIODINI named,and acknowledged to me that the corp i xe ed it.
fJOTARY PUBLIC-CALIFORNIA
FRESNO COON Y WITWS my hand nd offic' 1. 4.
Nb comm, expires OCT S, 1990 loor
otary's Si e
NATIONAL NOTARY ASSOGAnON•8236 Re vmt Ave•P.O.Box 7184
Canoga Park,CA 913047184 ?.
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The parties have executed this Agreement on the day and year first
above -written.
CITY'OF" FRESNO, SUBDIVIDER
a Municipal Corporation
�.r.-2►*en� TREND HOMES, INC. ,
MARVIN D. JOHNSON a California Corporation
PUBL C S DIRECTOR or
APPROVED AS -TO FORM:
HARVEY. WALLACE
CITY ATTORNEY
r-Bv (Attach Notary Acknowledgment)
STATE A�LORNIA )
ss.
COUNTY OF FRESNO )
On. th.is Py Of in theear /,7
beforem 11 appeared AA
personally known to me (or proved to me on the basis of s tisfactory
evidence) to be t� person who executed this instrument
as Director of the Public Works Department and
acknowledged to me that the City of Fresno executed it.
JACQUELINE L. RYLE, CMC
Ci y Clerk
By
Deputy
I Dated:
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EXHIBIT "A"
1985 EDITION 10.101-10.201
PART III
GENERAL PROVISIONS FOR
FIRE SAFETY
ARTICLE 10
FIRE PROTECTION
Division I
OPERATIONS AT FIRES OR OTHER EMERGENCIES
Authority at Fires and Other Emergencies
Sec.10.101.The chief and his authorized representatives.as may be in charge
at the scene of a fire or other emergency involving the protection of life and/or
property or any part thereof, shall have the power and authority to direct such
operation as may be necessary to extinguish or control any fire, perform any
rescue operation, investigate the existence of suspected or reported fires. gas
leaks or other hazardous conditions or situations or of taking any other action
necessary in the reasonable performance of their duty. In the exercise of such
power,the chief may prohibit any person,vehicle,vessel or thing from approach-
ing the scene and may remove or cause to be removed or kept away from the scene
any vehicle.vessel or thing which may impede or interfere with the operations of
the fire depprtment and.in the judgment of the chief,any person not actually and
usefully employed in the extinguishing of such fire or in the preservation of
property in the vicinity thereof.
Interference with Fire Department
See.10.102.Any person who obstructs the operations of the fire department in
connection with extinguishing any fire. or other emergency, or disobeys any
lawful command of the chief or officer of the frre department who may be in
charge at such a scene.or any part thereof,or any police officer assisting the fire
department.shall be guilty of a misdemeanor.
Authority to Barricade
See.10.103.The chief or other officer of the fire department in charge at the
scene of an emergency shall have the authority to place ropes,guards,barricades
or other obstructions across any street. alley. place or private property in the
vicinity of such operation so as to prevent accident or interference with the lawful
efforts of the fire department to manage and control the situation and to handle
fire apparatus.
Division II
GENERAL PROVISIONS
Tampering with Fire Equipment
Sec 10.201.No person shall molest,tamper with.damaee or otherwise disturb
39
(1)
1
s
10.201-10.206 UNIFORM FIRE CODE
any apparatus,equipment or appurtenance belonging to or under the supervision
and control of the fire department without authority from the chief or his
authorized representative 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 required to be installed or maintained under the provi-
sions of this code except for the purpose of extinguishing fire,training purposes,
recharging,or making necessary repairs,or when permitted by the fire depart-
ment. Whenever 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 any 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 authorized to make such use by the water company
which supplies water to such hydrants or other valves.
Tampering with Barricades,etc.
Sec. 10.204.No person.except a person authorized by the chief or a public
officer acting within the scope of his public duties,shall remove,unlock,destroy,
tamper with or otherwise molest in any manner any lock,gate.door,barricade.
chain,enclosure,sign,tag or seal which has been lawfully installed by the fire
department or by its order or under its control.
Closure of Roads or Tralis
Sec. 10.205.(a)General.The chief may install one or more gates,cables or
other barricades and securely lock the same to prevent the use by unauthorized
persons of any road that is not a public highway and over which the fire
department has the right 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 authorized users of such road or trail
from using the same.
(b)Trespassing.No person.except a public officer acting within the scope of
his public duties.shall trespass upon any road or trail which has been closed and
obstructed in the manner authorized by this section without the express permis-
sion of the chief, nor shall any person park any vehicle so as to obstruct the
entrance to such road or trail.
Obstruction of Fire Protection Equipment _
See. 10.206.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
40
(2)
ADDENDUM TO SUBDIVISION AGREEMENT
(RIGHT-OF-WAY ACQUISTION)
Tract No. 3928
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 ; and
WHEREAS Subdivider desires that acquisition of the required
right-of-ways be diligently pursued; and
WHEREAS Subdivider has notified the City (i .e. . the Public
Works and/or 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 initially deposit, upon execution of this
agreement, the sums set out in paragraphs 2 and 15, 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 initially 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 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, providing said reports
are issued within 120 days preceding the adoption of the Resolution
of Necessity authorizing the condemnation proceedings .
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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 cot`ts by submitting to the City Attorney
for his review and approval an itemized written request
therefore endorsed by Subdivider .
5 . Subdivider acknowledges that the initial 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 accurately or 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 doea
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. 40
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.
8 . 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 .
9 . 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 .
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10. 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 .
11`. 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 notexcuse 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 .
12. 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 .
13. 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. ) .
14 . No partial invalidity of this agreement shall
invalidate the remainder.
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