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921571475 CENTRA LE COMPA
A MIN. PAST M
RETURN TO: i TF
CITY OF FRESNO Wy OCT 15 1992
DEVELOPMENT DEPARThUMIT
2600 Fra o Stred
FRESCO CA 93721-3604 FRESNO COUNTY,CALIFORNIA
WILLIAM C.GREENWOOD,County Recorder
' F
PLEASE CONFORM a o REO"
OR
SPACE FOR RECORDER v---- -- ----
P. W. File No . 9243 Public Works Departm nt
UGM No . 444 City of Fresno
SUBDIVISION AGREEMENT
, Tract No. 4190
�1
THIS AGREEMENT is made this Z9 ✓ day of19 ,
by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter
designated and called the "City, " and KAUFMAN AND BROAD-SOUTH BAY, INC. ,
a California Corporation, 320 West Bedford Avenue, Suite 201, Fresno,
California, 93711, 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.
4190,' a copy of which map is attached to and made a part of this
► P' --
Subdivision Agreement
Tract No . 4190/UGM 444
Page 2
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
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 consideration of the acceptance
of the offers of dedication by the City of Fresno.
4 . The Subdivider hereby warrants that any and all parties having
record title interest in the Subject Property which may ripen into a fee
have subordinated to this instrument .
5 . All such instruments of subordination, if any, are attached
hereto and made a part of this instrument .
Subdivision Agreement
Tract No . 4190/UGM 444
Page 3
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 :
6 . The Subdivider shall perform the work and improvements
hereinafter specified on or before November 30, 1993 , except the sidewalk
and driveway approach construction and lot corner monumentation which
shall be completed upon construction of the residential dwellings in
Tract No . 4190 but no later than November 30, 1994 , to the satisfaction
of the Director of Public Works and/or the City Engineer of the City as
provided by Code. The Subdivision lot and buffer trees shall be planted
by November 30, 1994 , or upon occupancy of each individual dwelling,
whichever occurs first, to the satisfaction of the director of the City
Parks Department as provided by code. Issuance of building permits for
any structure within the subdivision shall conform to the requirements of
the Uniform Fire Code (UFC) . The Subdivider ' s attention is particularly
called to UFC Sections 10 . 105(c) , 10 . 201, 10 .401, 10 .402 , 10 .403 , and
10 . 502 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 with approved
Subdivision Agreement
Tract No . 4190/UGM 444
Page 4
streetlighting on line and operational . 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. Extension of time for completion of
improvements (including street trees planting) may be granted by the
Public Works Director with an extension fee from the current Master Fee
Schedule based upon the initial estimated total improvement cost . The
Director of Public Works shall give the Subdivider written notice of his
determination in writing , which shall be final and conclusive.
7 . 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, 1984 , by
Resolution No . 84-361 and as amended, at the sole cost and expense of the
Subdivider including all costs of engineering, inspection and testing .
8 . 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.
Subdivision Agreement
Tract No . 4190/UGM 444
Page 5
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 underground 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 Nos . 78-522 and 88-229 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 .
Section 12-1011(h) of the City of Fresno Municipal Code requires
the undergrounding of overhead utilities within the subdivision.
Completion of all undergrounding of overhead utilities will be
required by Construction Management prior to release of securities .
c. Water main extensions and services including construction of
a water supply well at Well Site No. 175 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 .
Subdivision Agreement
Tract No . 4190/UGM 444
Page 6
h. Wet-Ties shall be in accordance with Estimate No. E-12287.
The amounts identified below as "Wet-Tie Charges" are estimates only
and serve as a deposit to cover the actual cost of construction.
Should the actual construction cost be less than the deposit, the
Subdivider shall be refunded the excess. Should the actual
construction cost be greater than the deposit, the Subdivider shall
be billed by the City of Fresno for the difference and shall be
directly responsible for payment .
i . 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
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 .
j . As a condition of final map approval the Subdivider is
required to install landscaping and an irrigation system in a 20-foot
landscape easement along the North Chestnut Avenue Frontage of the
subdivision. The Subdivider has executed a covenant with the City of
Fresno guaranteeing maintenance of the required landscaping until
such time as a Maintenance District has been formed to provide for
continued care and maintenance of the required landscaping . The
Subdivider also agrees to sign a petition asking the Council to
include this Tract in the existing District .
Pursuant to Section 12-1013 (Improvement Plans and Profiles) of the
Fresno Municipal Code, the Subdivider has posted improvement security
Subdivision Agreement
Tract No. 4190/UGM 444
Page 7
in the amount of Six Thousand Three Hundred and 00/100 Dollars
($6 , 300 . 00) with the City guaranteeing the preparation of the
detailed landscaping and irrigation plans for the required
landscaping to be approved by the City.
The Subdivider agrees that, in the event the required plans have not
been submitted by the Subdivider to the City for approval within 90
days of the execution of this agreement by the City, the City shall
use the security posted to cause the preparation of the required
landscaping and irrigation plans .
Prior to planting any street trees in the subdivision, the Subdivider
agrees to submit a detailed landscaping and an irrigation plan for
the required 20-foot landscape easement along the North Chestnut
Avenue frontage of the subdivision to the City Parks Department for
approval . The plan shall include the types , location, and number of
trees and show all landscaping proposed for planting on public and/or
City controlled property. The Subdivider agrees that the City shall
not be obligated to accept any tree for maintenance purposes which is
not included in the approved landscaping plan.
k. As a condition of final map approval, the Subdivider is
required to pay a street tree fee for lot trees in accordance with
the master fee resolution. In lieu of paying street tree fees for
the required individual lot tree planting ; the Subdivider has
accepted responsibility for street tree planting and has posted
Performance Security in the amount of Twenty-Three Thousand Three
Hundred and 00/100 Dollars ($23 , 310 . 00) to secure planting and
maintenance until acceptance of the street trees by the City Parks
Department and occupancy and maintenance by lot owners .
The Subdivider has entered into a "Developer Tree Planting Agreement"
with the City and shall obtain a street work permit for all landscape
installation shown on the plans as part of the "Developer Tree
Planting Agreement, " the tree planting plan shall include the types,
location, and number of trees and show all landscaping proposed for
planting on Public and/or City controlled property. The Subdivider
agrees that the City shall not be obligated to accept any tree which
is not included in the approved landscaping plan.
1 . Perform and construct all work shown on the following
referenced plans [City Drawing Nos : 10-C-6486 through 10-C-6498 with
Water Job No. 4035 (13 sheets) inclusive; off-site 10-C-6499 through
10-C-6506 (8 sheets) inclusive; 15-C-8248 through 15-C-8273 (26
sheets) inclusive; and 4-C-243 (1 sheet) inclusive. Fresno
Metropolitan Flood Control District Nos : CY-26-1 through CY-26-3 (3
sheets) inclusive and CZ-13-1 through CZ-13-3 (3 sheets) inclusive] ,
unless specifically omitted herein.
Subdivision Agreement
Tract No. 4190/UGM 444
Page 8
M. 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 .
n. The Subdivider has deposited with the City the sum of One
Hundred Ninety-Seven Thousand Sia Hundred Fifty-Four and 64/100
Dollars ($197, 654 . 64 ) for the following :
(1) Inspection Fees $55, 985 . 95
(2) Monument Check Fee
205 Lots @ $30 . 00/Lot $6, 150 . 00
(3) Intersection Signing, 19 @ $165 . 00/Ea $3 , 135 . 00
(4) Traffic Regulatory and Warning Signing,
11 @ $73 . 00/Ea $803 . 00
(5) Street Trees Field Inspection Fee
(Privately planted lot street trees to
be maintained by the lot owners)
259 Street Trees @ $23 . 00/Tree $5, 957 . 00
Street Tree Field Inspection Fee $129 . 00
(Privately planted buffer street trees
to be maintained by the City Landscape
Maintenance District No . 1)
( 6) Pond Maintenance Fee $8, 119 .00
Pond No . 1 ; Lots 53-55
19 , 903 . 0 SF @ $0 .20/SF $3 , 980 . 60
Pond No . 2 ; Lots 203-205
20, 692 . 0 SF @ $0 . 20/SF $4 , 138 .40
Total Pond Maintenance Fee 8, 119 . 00
(7) Sewer Trench Water Compaction Charge,
1,333 . 0 CY @ $0 . 10/CY $1,333 . 00
(8) Sanitary Sewer Fees $212 .70
(a) Trunk Sewer Charge
Herndon Trunk Sewer Service Area
205 Units @ $709 . 00/units $145,345 .00
Subdivision Agreement
Tract No. 4190/UGM 444
Page 9
Less 204 .7 Units @
$709 . 00/Units [$145, 132 .30]
Paid with P.M. 92-05
Net Trunk Sewer Charge $212 .70
(Note: Major Facilities Sewer Service
Charge to be paid as each lot is developed
at the then current rate. )
Total Sewer Charges $212 .70
(9) Water Charges $102 , 169 . 99
(a) "Wet-Tie" Charge $7, 800 .00
(Estimate No. 12287)
(Water Job No. 4035)
(b) Tap Charge
(Service Connections)
North Chestnut Avenue Landscape Buffer
1-1. 5" meter @ $445 .00/Ea $445 .00
North Chestnut Avenue .
Median Island Landscaping
2-1" meter @ $275 .00/Ea $550 .00
Lot 190
1-15" meter @ $445 . 00/Ea $445 . 00
All other lots
204-1" meters @ $275 . 00/Ea $56, 100 . 00
(c) Fire Hydrant Charge (Zone District R-1/UGM)
1, 356, 499 . OSF @ $0.75/100SF $10, 173 .74
(d) Water Construction Charge
205 Lots @ $1 .25/Lot $256 .25
(e) Well Head Treatment Fee
Units by: Living Units
Woodward Park Well Head Treatment Service Area
205 units @ $535 . 00/Unit $109 , 675 . 00
Less Fee amount paid
with P.M. 92-05 [$92, 020.00)
Net Well Head Treatment Fee $17, 655 . 00
Subdivision Agreement
Tract No . 4190/UGM 444
Page 10
(f) Recharge Fee
Units by: Living Units
Woodward Park Recharge Service Area
205 units @ $265 . 00/Unit $54 , 325 . 00
Less Fee Amount Paid
with P.M. 92-05 [$45, 580 . 00]
Net Recharge Fee $8, 745 .00
Total Water Charges $102 , 169 . 99
(10) Landscape Maintenance District Fee $11, 185 . 00
( 11) Private Irrigation Line Maintenance Fee
825 . 0 LF @ $3 . 00/LF $2, 475 . 00
TOTAL FEES AND CHARGES $197 , 654 . 64
( 12) Fee Deferrals-Present Credits-Future Reimbursements
(a) UGM Fire Station Fees
Service Area No. 13
Zone District R-1
42 . 77 Ac @ $251 .00/Ac $10, 735 . 27
Less UGM Fire Station Fees
paid with P.M. 92-05 [$10, 735 .27]
Net Fire Station Fees $0
paid with P.M. 92-05
(b) UGM Neighborhood Park Fees
Deferred by Covenant with P.M. 92-05
Zone District R-1-C, due with tract at
R-1 Zone District at the then current rate
Service Area No. 7
Zone District R-1/UGM
42 . 77 AC @ $1, 690. 00/AC $72 ,281. 30
(c) Sanitary Sewer Oversize Charge
Present Credit-Future Reimbursement
42 . 77 Gross AC @ $240 .00/GA $10,264 . 80
Less Oversize Credits [$59 ,020 .00]
Net Charge $0
paid with credits
Subdivision Agreement
Tract No . 4190/UGM 444
Page 11
Future Reimbursements shall be made in accordance with
Section 9-503 . 2 of the Fresno Municipal Code.
(UGM Reimbursement Area No. 1)
(d) Transmission Grid Main Charge -
Present Credit-Future Reimbursement
42 . 77 Ac @ $560 . 00/Ac $23,951.20
Less TGM Credits [$30, 330 .09]
Net Charge $0
paid with credits
Future Reimbursements shall be made in accordance with
Section 14-107. 1(d) of the Fresno Municipal Code.
(UGM Reimbursement Area No. A)
(e) UGM Well Development Charge
Present Credit-Future Reimbursement
(Supply Well No. 101-S)
42 . 77 Ac @ $1, 836 . 00/Ac $78, 525 . 72
Less Well Development Charge
paid with p.m. 92-05 [$78, 525 .72]
Net Charge $0
paid with P.M. 92-05
Future Reimbursements shall be made in accordance with
Section 14-107 . 1(d) of the Fresno Municipal Code.
(f) UGM Major Street Charge
Present Credit-Future Reimbursement
Zone F
40 . 94 Ac @ $2, 500 .00/Ac $102,350 .00
Less Major Street Charge
paid with P.M. 92-05 [$102,350 .00]
Net Charge $0
paid with P.M. 92-05
Future Reimbursements shall be made in accordance with
Section 11-226(f) of the Fresno Municipal Code.
(g) UGM Major Street Bridge Charge
Present Credit-Future Reimbursement
Zone F
40 . 94 Ac @ $50 . 00/Ac $2, 047 .00
Subdivision Agreement
Tract No. 4190/UGM 444
Page 12
Less Major Street Bridge Charge
paid with P.M. 92-05 [$2 ,047. 00]
Net Charge $0
paid with P.M. 92-05
Future Reimbursements shall be made in accordance with
Section 11-226(f) of the Fresno Municipal Code .
(h) UGM Traffic Signal Charges
Present Credit-Future Reimbursement
40 . 94 Ac @ $860 .00/Ac $35,208 .40
Less Signal Charge
paid with P.M. 92-05 [$35,208 .40]
Net Charge $0
paid with P.M. 92-05
Future Reimbursements shall be made in accordance with
Section 11-226(f) of the Fresno Municipal Code.
( i) UGM At-Grade Railroad Crossing Fee
Present Credit-Future Reimbursement
Service Area A-D
40 . 94 Ac @ $236 . 00/Ac $9, 661 . 84
Less At-Grade RR Xing Fee
paid with P.M. 92-05 [$9, 661 . 84]
Net Charge $0
paid with P.M. 92-05
Future Reimbursements shall be made in accordance with
Section 11-228(h) of the Fresno Municipal Code.
(j ) Fire Hydrant Reimbursement
12 F.H. @ $300 . 00/F .H. $3 , 600 . 00
Future Reimbursements shall be made in accordance with
Section 14-107. 1b of the Fresno Municipal Code.
9 . 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.
a. The Subdivider allocates Lots 53, 54 and 55 as Pond No. 1
and Lots 203 , 204 and 205 as Pond No. 2 , for use as temporary
facilities to alleviate the flooding and drainage problem anticipated
Subdivision Agreement
Tract No. 4190/UGM 444
Page 13
to be caused by this subdivision and its improvements until such time
as the City, through its Public Works Director, releases in writing
such lots from such use. The Subdivider shall improve such
facilities pursuant to City approved construction plans and, upon
completion of such improvements, the City is permitted to enter such
lots and shall maintain such facilities until such written release is
issued.
The Subdivider shall not commence any backfilling operation of
the temporary facilities 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 lots until the City
issues its written release.
No written release shall be issued unless the City Engineer is
satisfied that all temporary facilities have been backfilled and
compacted properly and all temporary drainage structures, such as
inlets , outlets , pipes , and similar structures, have been plugged,
removed, and disposed of in accordance with the Standard
Specifications of the City.
10 . 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.
Subdivision Agreement
Tract No . 4190/UGM 444
Page 14
11 . 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 Two Million One Hundred
Forty-Three Thousand and 00/100 Dollars ($2 , 143 , 000. 00) , which is
equal to 100% of the total estimated cost of the work required. Five
percent (5%) of said amount, One Hundred Seven One Hundred Fifty and
00/100 Dollars ($107 , 150 . 00) , shall be cash or a Certificate of
Deposit; the remaining 95%, Two Million Thirty-Five Thousand Eight
Hundred Fifty and 00/100 Dollars ($2, 035, 850 . 00) shall be in the form
of a bond or irrevocable .instrument of credit; all to be conditioned
upon the faithful performance of this Agreement; and
b. Payment security in the sum of One Million Seventy-One
Thousand Five Hundred and 00/100 Dollars ($1, 071, 500 . 00) , 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. Payment security in the sum of Six Thousand Three Hundred
and 00/100 Dollars ($6,300 .00) , which is equal to 100% of the total
estimated cost of preparation of landscaping/irrigation and wall
improvement plans required. One Hundred percent (100%) of said
amount shall be cashier Certificate of Deposit, all to be conditioned
upon the faithful performance of this agreement.
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.
d. Performance security in the sum of Twenty-Three Thousand
Three Hundred Ten and 00/100 Dollars ($23, 310 . 00) , which is equal to
100% of the total estimated cost of lot street tree planting and
maintenance required. One hundred percent ( 100%) of said amount
shall be cash or a Certificate of Deposit, all to be conditioned upon
the faithful performance of this agreement .
e . Any and all other improvement security as required by Fresno
Municipal Code, Section 12-1016 .
Subdivision Agreement
Tract No . 4190/UGM 444
Page 15
12 . On acceptance of the required work, warranty security shall be
furnished to or retained by the City, in the amount of Sixteen Thousand
Two Hundred Fifteen and 00/100 Dollars ($16, 215 .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) year after final acceptance of the subdivision
improvement .
13 . This Agreement shall in no way be construed as a grant by the
City of any rights to Owner to trespass upon land rightfully in the
possession of, or owned by, another, whether such land be privately or
publicly owned.
14 . 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,
defend, 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
Subdivision Agreement
Tract No. 4190/UGM 444
Page 16
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 Subdividers 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.
15 . 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.
16 . 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.
Subdivision Agreement
Tract No. 4190/UGM 444
Page 17
17 . 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 or his agent .
Compaction testing performed for determination of compliance with City
Standard Specifications shall 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 .
18 . The Subdivider shall comply with Street, Plumbing, Building,
Electrical , Zoning Codes and any other codes of the City.
19 . 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
Subdivision Agreement
Tract No . 4190/UGM 444
Page 18
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.
20 . 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 be rejected, notwithstanding the fact that such
defective work and unsuitable materials have been previously overlooked
by the Engineer or Inspector and accepted.
21 . 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.
22 . 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
Subdivision Agreement
Tract No. 4190/UGM 444
Page 19
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 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
Subdivision Agreement
Tract No . 4190/UGM 444
Page 20
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 .
23 . 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.
24 . 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 .
25 . 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.
Subdivision Agreement
Tract No. 4190/UGM 444
Page 21
The parties have executed this Agreement on the day and year first
above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
KAUFMAN AND BROAD-SOUTH BAY,
MARVIN D. JOHNSON, DIRECTOR INC. , a California Corporation
PUBLIC WORK DEPARTMENT
B
ichae Forsum
ATTES Vice P sident
JACQUELINE L. RYLE
CITY CLERK
By
Deput
APPROVED AS TO FORM:
HARVEY WALLACE
ALL—PURPOSE ACKNOWLEDGMENT No 2
n -
State of r,L%4-t a CAPACITY CLAIMED BY SIGNER
County of fres rlb C]. MW.WGFWM0MV0
On-SP-a. 16 4 6glbefore me ch (name,title of officer), C] ,E
personally appeared MI 1 ;'(Sur M-9-D _ ! ,
O personally known to me— to
be the personC4 whose name* W>4 subscribed to the within instrument and acknowl-
edged to me that he/*/t*executed the same in hist r/*ir authorized capacity(!W,and ❑•M .MTNEFO.
that by his/her/their signature(s)on the instrument the person,or the entity upon behalf of
which the person acted, executed the ❑» w
" instrument.
11R6IEFj51
WITNESS my hand and official seal. TOW
ALo
CINDY L. KELLY ❑
Notary Pubic
Fresno County,Caleloni3
My Coffm Em.Auc%26,1934 Nun
ENmrpEtl�lEmn®
�► Signatu � ®
-- a WITMw� NOTARY ASSOC1AT10N.8Zl8 PWMMM M.•PO E1=7184-CAmW%*.CA 91W4-7t
STATE IF CALIFORNIA )
ss.
COUNTY OF FRESNO )
On this ,7m G(, day of in the year /9 4 2. before
me, ctc. e6 , personally appeared -traAlAt/ry
personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person who executed this instrument as �� UJB.. Jti
of the CITY OF FRESNO and acknowledged to me that the CITY OF FRESNO executed it.
JACQUELINE L. KYLE, CMC
CITY CLERK
DEPUTY
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AN0100 9LVd 0131iLV,3
1991 UNIFORM FIRE CODE 10.101-10.104
PART III
GENERAL PROVISIONS FOR
FIRE SAFETY
ARTICLE 10
FIRE PROTECTION
Division I
GENERAL
Scope
Sec. 10.101. Fire protection shall be in accordance with this article.
Definitions
Sec. 10.102. For definitions of AUTOMATIC FIRE-EXTINGUISHING
SYSTEM, FACILITY, FIRE DEPARTMENT INLET CONNECTION and
STANDPIPE SYSTEM, see Article 9.
Permits
Sec. 10.103. A permit is required to use or operate fire hydrants or valves
intended for fire-suppression purposes which are installed on water systems and
accessible to public highways,alleys or private ways open to or generally used by
the public. See Section 4.108.
EXCEPTION: A permit is not required for persons employed and authorized
by the water company which supplies the system to use or operate fire hydrants
or valves.
Tampering with Fire-protection Equipment and Site Barriers
Sec. 10.104. (a) Fire Department Property. Apparatus, equipment and
appurtenances belonging to or under the supervision and control of the fire
department shall not be molested,tampered with,damaged or otherwise disturbed
unless authorized by the chief.
(b) Fire Hydrants and Puke Appliances. Fire hydrants and fire appliances
required by this code to be installed or maintained shall not be removed,tampered
with or otherwise disturbed except for the purpose of extinguishing fire,training,
recharging or malting necessary repairs,or when allowed by the fire deparflment
When a fire appliance is removed as herein allowed, it shall be replaced or rein-
stalled as soon as the purpose for which it was removed has been accomplished.
(c) Site Barriers. Locks, gates, doors, barricades, chains, enclosures, signs,
tags-or seals which have been installed by the fire department or by its order or
under its control shall not be removed, unlocked, destroyed, tampered with or
otherwise molested in any manner_
PAGE 1 EXMIT "All
10.10410.107 1991 UNIFORM FIRE CODE
EXCEPTION: When authorized by the chief or performed by public officers
acting within their scope of duty.
Obstruction, Identification and Protection of Fire Hydrants and
Fire-protection Equipment
Sec. 10.105.(a)Obstruction.Posts.fences,vehicles,growth,trash,storage and
other materials or things shall not be placed or kept near fire hydrants, fire
department inlet connections or fire-protection system control valves in a manner
that would prevent such equipment or fire hydrants from being immediately
discernible. The fire department shall not be deterred or hindered from gaining
immediate access to fire-protection equipment or hydrants.
A 3-foot clear space shall be maintained around the circumference of fire
hydrants except as otherwise required or approved by the chief.
(b)Identification.Fire-protection equipment and fire hydrants shall be clearly
identified in a manner approved by the chief to prevent obstruction by parking and
other obstructions.
(c)Fire Hydrant Markers.When required by the chief,hydrant locations shall
be identified by the installation of reflective markers.
(d) Protection of Fire Hydrants. When exposed to vehicular damage, fire
hydrants shall be suitably protected.
Closure of Accessways
Sec. 10.106. (a) General.The chief is authorized to require the installation and
maintenance of gates or other approved barricades across roads, trails or other
accessways, not including public streets, alleys or highways.
When required, gates and barricades shall be secured in an approved manner.
When required to be secured, roads,trails and other accessways shall not be used
unless authorized by the owner and the chief.
(b) Trespassing. Trespassing upon roads, trails and other accessways which
have been closed and obstructed in the manner prescribed by this section is prohib-
ited.
EXCEPTION: Persons authorized by the chief and public officers acting within
their scope of duty.
(c) Obstruction. Vehicles shall not be parked in a manner which obstructs the
entrance to roads, trails or other accessways which have been closed and
obstructed in the manner prescribed by this section.
Fire Protection in Mobile Home and Recreational Vehicle Parks
Sec. 10.107. Mobile home and recreational vehicle parks shall provide and -
maintain fire hydrants and access roads in accordance with Divisions II and rV
EXCEPTION: Recreational vehicle parks located in remote area shall be
provided with protection and access roadways as required by the chief.
PAGE 2 F T 1 �All
1991 UNIFORM FIRE CODE 10.201-10.204
Division II
FIRE APPARATUS ACCESS ROADS
General
Sec. 10.201. Fire apparatus access roads shall be provided and maintained in
accordance with this division.
Plans
Sec. 10.202. Plans for fire apparatus access roads shall be submitted to the fire
department for review and approval prior to construction.
Required Access
Sec. 10.203. Fire apparatus access roads shall be provided for every facility,
building or portion of a building hereafter constructed or moved into or within the
jurisdiction when any portion of the facility or any portion of an exterior wall of
the first story of the building is located more than 150 feet from fire apparatus
access as measured by an approved route around the exterior of the building or
facility.
EXCEPTIONS: 1.When buildings are completely protected with an approved
automatic fire sprinkler system, the provisions of this section may be modified by
the chief.
2.When access roads cannot be installed due to topography,waterways,nonne-.
gotiable grades or other similar conditions, the chief is authorized to require addi-
tional fire protection as specified in Section 10.501 (b).
3. When there are not more than two Group R, Division 3, or Group M
Occupancies, the requirements of this section may be modified, provided, in the
opinion of the chief, firefighting or rescue operations would not be impaired.
More than one fire apparatus road shall be provided when it is determined by the
chief that access by a single road may be impaired by vehicle congestion,condition
of terrain, climatic conditions or other factors that could limit access.
For high-piled combustible storage, see Section 81.109 (a).
For open yard storage, see Section 30.102.
For hazardous materials, see Article 80.
For fire safety during construction, alteration or demolition of a building, see
Section 87.103 (b).
Specifications
Sec. 10.204. (a) Dimensions. Fire apparatus access roads shall have an unob-
structed width of not less than 20 feet and an unobstructed vertical clearance of not
less'than 13 feet 6 inches.
EXCEPTION: Upon approval by the chief,vertical clearance may be reduced,
provided such reduction does not impair access by fm apparatus and approved signs .
are installed and maintained indicating the established vertical clearance.,
10.20410.302 1991 UNIFORM FIRE CODE
Vertical clearances or widths shall be increased when,in the opinion of the chief,
vertical clearances or widths are not adequate to provide fire apparatus access.
(b) Surface. Fire apparatus access roads shall be designed and maintained to
support the imposed loads of fire apparatus and shall be provided with a surface so
as to provide all-weather driving capabilities.
(c)Turning Radius.The turning radius of a fire apparatus access road shall be
as approved by the chief.
(d) Dead Ends. Dead-end fire apparatus access roads in excess of 150 feet in
length shall be provided with approved provisions for the turning around of fire
apparatus.
(e)Bridges.When 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 shall use designed live loading sufficient to carry the
imposed loads of fire apparatus.
(f) Grade. The gradient for a fire apparatus access road shall not exceed the
maximum approved by the chief.
Obstruction
Sec. 10.205. The required width of a fire apparatus access road shall not be
obstructed in any manner, including parking of vehicles. Minimum required
widths and clearances established under this section shall be maintained at all
times.
Marking
Sec. 10.206.When required, approved signs or other approved notices shall be
provided and maintained for fire apparatus access roads to identify such roads and
prohibit the obstruction thereof or both.
Division 111
FIRE DEPARTMENT ACCESS TO BUILDINGS
Premises identification
Sec. 10301. (a) GeneraL Approved numbers or addresses shall be placed on
all new and existing buildings in such a position as to be plainly visible and legible
from the street or road fronting the property.Said numbers shall contrast with their
background.
(b)Street or Road Signs.When required by the chief,streets and roads shall be
identified with approved signs.
Key Boxes
Sec. 10302.When access to or within a structure or an area is unduly difficult
because of secured openings or where immediate access is necessary for life-
PAGE 4 11 A It
1991 UNIFORM FIRE CODE 10.302-10.401
saving or firefighting purposes, the chief is authorized to 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 necessary access as required by the chief.
Shattway Marking
Sec. 10303. Exterior windows in buildings used for manufacturing or for
storage purposes which open directly on shaftways or other vertical means of
communication between two or more floors shall be plainly marked with the word
SHAF-TWAY in red letters at least 6 inches high on a white background.Warning
signs shall be easily discernible from the outside of the building.Door and window
openings on such shaftways from the interior of the building shall be similarly
marked with the word SHAFTWAY in a manner which is easily visible to anyone
approaching the shaftway from the interior of the building,unless the construction
of the partition surrounding the shafiway is of such distinctive nature as to make
its purpose evident at a glance.
Exterior Doors
Sec. 10.304.(a)Obstruction and Elimination.Exterior doors or their function
shall not be eliminated without prior approval by the chief. Exterior doors which
have been rendered nonfunctional and which retain a functional door exterior
appearance shall have a sign affixed to the exterior side of such door stating THIS
DOOR BLOCKED.The sign shall consist of letters having principal stroke of not
less than 3/4 inch wide and at least 6 inches high on a contrasting background.
Required fire department access doors shall not be obstructed or eliminated. See
Article 12 for exit doors.
(b) Access Doors and Openings. For firefighting purposes, access doors,
openings and exit doors shall be provided and readily accessible in occupancies as
required by the Building Code.
For access doors for high-piled combustible storage, see Section 81.109 (b).
Floor Openings
Sec. 10303.Floor openings shall be surrounded by guardrails as set forth in the
Building Code or shall have coven which are automatic closing or maintained in
a closed position at all times.
Division IV
WATER SUPPLIES FOR FIRE PROTECTION
General
Sec. 10.401. An approved water supply capable of supplying the required fire
flow for fire protection shall be provided to all premises upon which facilities,
buildings or portions of buildings are hereafter constructed or moved into or within
the jurisdiction. When any portion of the facility or building protected is in excess
TT it A 11
10.401-10501 1991 UNIFORM FIRE CODE
of 150 feet from a water supply on a public street, as measured by an approved
route around the exterior of the facility or building,on-site fire hydrants and mains
capable of supplying the required fire flow shall be provided when required by the
chief.
Type of Water Supply '
Sec. 10.402. Water supply may consist of reservoirs, pressure tanks, elevated
tanks, water mains or other fixed systems capable of providing the required fire
flow. In setting the requirements for fire flow, the chief may be guided by the
provision in Appendix III-A.
Fire Hydrants
Sec. 10.403.The location,number and type 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 or both to be protected as required and approved
by the chief.Fire hydrants shall be accessible to the fire department apparatus by
roads meeting the requirements of Division H.
For fire safety during construction, alteration or demolition of a building, see
Section 87.103 (c).
Division V
INSTALLATION AND MAINTENANCE OF
FIRE-PROTECTION AND LIFE-SAFETY SYSTEMS
General
Sec. 10.501. (a) Type Required. The chief is authorized to 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 dwellings. This
designation shall be based upon 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.
(b) Special Hazards. For occupancies of an especially hazardous nature or
where special hazards exist in addition to the normal hazard of the occupancy,or
where access for fire apparatus is unduly difficult,the chief is authorized to request
additional safeguards 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,
automatic sprinkler or water spray systems,standpipe and hose,fixed or portable
fire extinguishers,suitable fire blankets,breathing apparatus,manual or automatic
covers, carbon dioxide, foam, halogenated or dry chemical or other special
fire-extinguishing systems. Where such systems are provided, they shall be
designed and installed in accordance with the applicable Uniform Fire Code
Standards.
PAGE 6 F_ TT " A "
1991 UNIFORM FIRE CODE 10.501-10.504
(c) Buildings under Construction. Fire-protection equipment and systems
shall be installed and maintained in buildings under construction in accordance
with Article 87.
Timing of installation
Sec. 10.502. When fire protection, including fire apparatus access roads and
water supplies for fire protection, is required to be installed,such protection shall
be installed and made serviceable prior to and during the time of construction.
EXCEPTION: When alternate methods of protection.as approved by the chief,
are provided,the above may be modified or waived.
Approval and Testing
Sec. 10.503. Fire alarm systems; fire hydrant systems; fire-extinguishing sys-
tems, including automatic sprinklers and wet and dry standpipes; halon systems
and other special types of automatic fire-extinguishing systems;basement pipe in-
lets;and other fire-protection systems and appurtenances thereto shall meet the ap-
proval of the fire department as to installation and location and shall be subject to
such periodic tests as required by the chief. Plans and specifications shall be sub-
mitted to the fire department for review and approval prior to construction.
Condition of approval of halon systems shall be satisfactory passage of a test
conducted in accordance with nationally recognized standards prior to final
acceptance of the system.
Maintenance
Sec. 10.504. (a) General. Sprinkler systems, fire hydrant systems, standpipe
systems, fire alarm systems, portable fire extinguishers, smoke and heat
ventilators, smoke-removal systems and other fire-protective or extinguishing
systems or appliances shall be maintained in an operative condition at all times and
shall be replaced or repaired where defective. Fire-protection 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 any build-
ing so equipped is altered, remodeled or added to. Additions, repairs, alterations
and servicing shall be in accordance with recognized standards.
(b)Systems in High-rise Buildings.The owner of a high-rise building shall be
responsible for assuring that the fire- and life-safety systems required by the
Building Code are maintained in an operable condition at all times. Unless
otherwise required by the chief,quarterly tests of such systems shall be conducted
by approved persons. A written record shall be maintained and shall be made
available to the inspection authority. See U.B.C. Sections 1807 and 1907.
(c)Smoke-control Systems.Mechanical smoke-control systems,such as those
in high-rise buildings, buildings containing atria, covered mall buildings and
mechanical ventilation systems utilized in smokeproof enclosures and for
smoke-removal systems utilized in high-piled combustible storage occupancies,
shall be maintained in an operable condition at all times.Unless otherwise required
PAGE 7 Ei IT "All
ADDENDUM TO SUBDIVISION AGREEMENT
(RIGHT-OF-WAY ACQUISITION)
(Tract No . 4190)
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 .
-1-
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
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
-2-
i
eminent domain proceedings, Subdivider shall be given notice
and an opportunity to participate in any decision to settle the
acquisition proceedings if the proposed compensation exceeds
the opinion of value established by the City' s appraisal or the
property owner ' s appraisal . However, such participation shall
be limited to advising City staff where the giving of such
advice does not interfere with, restrict, delay or impede the
City Attorney in the prosecution or compromise of the
condemnation proceedings, as 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 .
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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 .
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 not excuse Subdivider ' s duty to
perform any act, particularly the duty to make full and timely
deposits in accordance with any demands and notices by the
City. Upon rendering of the final accounting referenced
herein, Subdivider may question or challenge any use of funds
set forth in such accounting and may appeal same to the City
Council .
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, at.
sea . ) •
14 . No partial invalidity of this agreement shall
invalidate the remainder .
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6
15 . Summary of Initial Deposit.
Amount Deposited: Item:
$ 63 . 406 .00 Original valuation or property
acquisition cost
$ 600 . 00 Appraiser' s Declaration
$ 13 . 000 .00 Right-of-way staff time
$ 28 . 500 . 00 Attorney' s fees and costs (assuming a
negotiated settlement after filing of
complaint in eminent domain)
$ 50. 725 . 00 Prescriptive Easement Contingency
$156 , 231 . 00 Subtotal
$ 15, 769 . 00 Contingency (ten percent of subtotal)
iii:i i i i s a i i i i i i i i i i s!i i i i i i i i i i i i i s i!iii i
$172 . 000 .00 TOTAL
LR: jld:crm
LAND308/+4878
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