Loading...
HomeMy WebLinkAboutT-5007 - Agreement/Covenant - 8/15/2006 r 1010212002,20020113091 i MI. y`y y`y K �D4'I i5(Sk }3 f$i5 E'3k3`15#k.k.k. SUBDIVISION AGREEMENT Includes "Addendum to Subdivision Agreement" for Rights-of-Way Acquisition City of ff- ALN PUBLIC WORKS DEPARTMENT 2600 FRESNO STREET FRESNO, CALIFORNIA 93721-3616 (559) 621-8650 Tract No. 5007 Phase I of Vesting Tentative Map of Tract No. 5007/UGM P.W. File No. 10439 THIS AGREEMENT is made this day ofZC3 IV , 2001, by and between the City of Fresno, a Municipal Corporation, hereinafter designated and called the "City," and DEYOUNG COMMUNITIES, INC., a California Corporation, 2109 West Bullard Avenue, Suite 101, Fresno, California 93711-1258, hereinafter designated and called the "Subdivider,"without regard for number or Gender. Subdivision Agreement Tract No. 5007 Page 2 RECITALS A. The Subdivider has presented to the City a certain final map of a proposed subdivision of land owned by the Owner and located within the corporate limits of the City, and known and described as Tract No. 5007, said Owner 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. B. 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. C. 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 required as Conditions of Approval for Tentative Map Tract No. 5007/UGM dated November 7, 2001 issued by the City and any amendments thereto(hereinafter referred to as Conditions of Approval and incorporated into this agreement by this reference),hereinafter set forth in detail, within the time hereinafter mentioned, in consideration of the acceptance of the offers of dedication and approval of the Final Map for filing with the County of Fresno to record by the City of Fresno. D. The Subdivider desires to construct the improvements and develop the subdivision. E. 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 and that all such instruments of subordination, if any, are attached hereto and made a part of this instrument. Subdivision Agreement Tract No. 5007 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: 1. The Subdivision is subject to the following: a. The work and improvements shall be performed hereinafter specified on or before September 30, 2004, except as noted in (b), (c), and (d) listed below. b. The Sidewalk and driveway approach construction for the interior lots of the subdivision shall be completed on or before September 30, 2006, (The developer may submit a written request to the Public Works Director for an extension of time to complete the construction of the sidewalk and driveway approaches). C. The Street trees required for each lot shall be planted upon occupancy of each lot. The Subdivider shall notify the City Parks, Recreation and Community Services Department-Parks Division of the planting schedules. All species of Street Trees to be planted in the subdivision shall be as approved by the Parks Division. The responsibility to provide and plant, or to inspect the required Street Tree planting,shall be in accordance with the Street Trees fees paid in EXHIBIT"B,"attached hereto and made a part of this Agreement and/or the "Statement of Covenants Affecting Land Development to Plant and Maintain Front Yard Trees for Tract No. 5007,° per Resolution No. 98-129 requirements for 50- and 56-foot local street pattens. d.i. The Issuance of building permits for any structure within the subdivision shall conform to the requirements of the prevailing Uniform Fire Code (UFC). The Subdivider's attention is particularly called to Part III, Article 9 Subdivision Agreement Tract No. 5007 Page 4 of UFC relating to Fire Department access and water supply. No occupancy permit shall be issued until all Fire Department access and fire fighting water supply requirements have been met and access is constructed with approved street lighting 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. d.ii. In addition to the provisions of Condition 41 of said Conditions of Approval, the Subdivider agrees to obtain, construct and maintain a temporary emergency fire only lane on other properties pursuant to the recorded "Statement of Covenants Affecting Land Development for Temporary Emergency Fire Only Lane"on Assessor Parcel Numbers 577-010-02 and 07, in the manner described in the Fire Department Memorandum to the Planning Division dated August 30, 2002 (attached as Exhibit"D"). Notwithstanding the provisions of d.i. above and said Condition 41, no additional building permits for Tract No. 5007 beyond those issued under the terms of Condition 41, will be issued by the City Building Official until said temporary fire only lane is duly constructed by the Subdivider and - determined to be acceptable for its intended use and purpose by the City Engineer and the Fire Chief. e. No certificates of occupancy will be issued nor any human occupancy allowed for any building on any lot of the subdivision until permanent sanitary sewer and water service is determined to exist by the Director of Public Utilities Department. f. 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. Subdivision Agreement Tract No. 5007 Page 5 2. 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. 3. The work and improvements are as follows: a. Construct all landmarks, monuments and lot comers required to locate land divisions shown on the Final Map. Pursuant to Section 66497 of the State Subdivision Map Act, prior to the City's final acceptance of the subdivision and release of securities, the Subdivider shall submit evidence to the City of Fresno of payment and receipt thereof by the 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. 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 13-120.3315 of the Fresno Municipal Code. Subdivision Agreement Tract No. 5007 Page 6 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. Wet-Ties shall be in accordance Sections 14-107 and 14-111 of the Fresno Municipal Code. 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. L 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 side or rear property lines of all lots which side-onto or back-onto East BehymerAvenue frontages of the subdivision. The Owner 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 Owner has executed a covenant with the City of Fresno accepting the maintenance cost share responsibility of the required landscaping by agreeing to be annexed to City's Community Facilities District No.2 that provides for continued care and maintenance of the required landscaping. The Owner also agrees to sign a petition asking the Council to include this final map in the existing landscape maintenance district.Additionally,the Subdivider is required to provide the City of Fresno with copies of signed acknowledgments (see Exhibit "C") from each purchaser of a lot within the subdivision, attesting to the purchaser's understanding that the lot will have an annual landscaping maintenance assessment and that the purchaser is aware of the estimated amount of the assessment. The signed acknowledgments shall be sent to the Special Districts/Projects and Public Rights of Way Services Section, c/o Public Works Department, Engineering Services Division, 2600 Fresno Street, Fresno, California 93721-3623. i Subdivision Agreement Tract No. 5007 Page 7 j. As a condition of final map approval the Subdivider is required to submit improvement plans and profiles for landscaping/irrigation, grading and walls (FMC §12- 1011-f-3, Double Frontage Lots). Pursuant to FMC 12-1013(Improvement Plans and Profiles), the Subdivider has posted performance security to guarantee that such improvement plans and profiles more particularly itemized in Exhibit"A,"will be prepared in accordance with the requirements of the City Engineer. The Subdivider agrees that,in the event the required improvement plans and profiles have not been prepared and 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 performance security posted to cause the preparation of the required improvement plans and profiles. k. Perform and construct all work shown on the following referenced plans: a. City Drawing Nos: [10-C-8173 through 10-C-8195 with Water Job No. 4885 (22 sheets) inclusive, 15-C-10886 through 15-C-10922] (37 sheets) inclusive, Drawing No. 4-C-668 through 4-C-670 (3 sheets)], inclusive; unless specifically omitted herein. 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. I. Prior to the approval of the Final Map by the City, the Subdivider shall pay to the City and/or execute to defer certain impact fees due which are eligible to be deferred by relevant FMC provisions, the total fees and charges due as a condition of Final Map approval.The total fees and charges are more particularly itemized and made a part of this agreement in the attached Exhibit"B." m. In connection with assigning figures set forth in Exhibit "B," the City has made its best faith efforts at predicting the amounts to be credited as reimbursements for improvements that will benefit other properties. Because the subject improvements have not been completed at the time of execution of this agreement, the actual cost of construction is not yet known. Some degree of reasonable estimation is incorporated into the calculations. Subdivider agrees that these figures represent City's best estimates only and that they are subject to fluctuation following calculation of actual construction costs after improvement completion and acceptance. It is further subject to Subdivider's submission and City review of a financial accounting which sets forth those actual costs, Subdivision Agreement Tract No. 5007 Page 8 and the application, by City, of all relevant Fresno Municipal Code provisions which relate to the Subdivider's payment of fees and reimbursement thereto.This would,include any pertinent provisions contained within City's Master Fee Schedule which would also apply to the payment of fees or reimbursements . n. 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 the City's power of Eminent Domain. Subdivider agrees to observe all the terms and conditions of the Addenda to Subdivision Agreement (Right-of-Way Acquisition) ("Addendum") attached to this Agreement and incorporated herein by this reference. Subdivider shall deposit with the City the sums in a form required by the Public Works Director pursuant to the Addendum. Such sums shall be security to pay the City the initial cost to acquire the necessary easement, 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 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 cost to acquire the subject right-of-way, then at the conclusion of acquisition proceeding City shall refund the difference as soon as the City determines the amount of such excess. 4. 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 Califomia, 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. 5. Prior to the approval by the Council of the City of said final map, the Subdivider shall furnish to the City the following improvement securities in the amounts more particularly itemized in Exhibit A. Bonds shall be by one or more duly authorized corporate sureties Licence to business in Califomia subject to the approval of the City and.on forms fumished by the City. Subdivision Agreement Tract No. 5007 Page 9 a. PERFORMANCE SECURITY. Total amount to equal 100%of the Final Cost Estimate to be conditioned upon the faithful performance of this agreement. i. 95% of the final Cost Estimate shall be in the form of a bond or irrevocable instrument of credit; and ii 5% of the Final Cost Estimate shall be in cash or a certificate of deposit. b. PAYMENT SECURITY. Total amount to equal 50% of the Final Cost Estimate to secure payment to all contractors and subcontractors performing work on said improvements and all persons furnishing labor, materials, or equipment to them for said improvements. Payment Security shall be in the form of a bond or irrevocable instrument of credit. C. PERFORMANCE SECURITY. Total amount to equal 100% of the cost estimated by the City Engineer to guarantee that improvement plans and profiles not yet approved will be prepared in accordance with the requirements of the City Engineer: Said amounts shall be in the form of cash or a Certificate of Deposit. d. Deposits per Addendum for Right-of-Way Acquisition: - East Behymer Avenue. e. Any and all other improvement security as required by Fresno Municipal Code, Section 12-1016. 6. Upon acceptance of the required work by the City Engineer, a warranty security shall be furnished to or retained by the City, in the minimum amount identified in said Exhibit A, for guarantee and warranty of the work for a period of one (1) year following acceptance against any defective work or labor done or defective materials furnished. In accordance with Section 12-1016 of the Fresno Municipal Code, said warranty security shall be in the form of cash or a Certificate of Deposit. The warranty security shall be returned to the Subdivider, less any amount Subdivision Agreement Tract No. 5007 Page 10 required to be used for fulfillment of the warranty one (1) year after final acceptance of the subdivision improvement. 7. This Agreement shall in no way be construed as a grant by the City of any rights to the Subdivider to trespass upon land rightfully in the possession of, or owned by, another, whether such land be privately or publicly owned. 8. 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 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 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. 9. 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. Subdivision Agreement Tract No. 5007 Page 11 10. 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. 11. 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. 12.. The Subdivider shall comply with Street, Plumbing, Building, Electrical, Zoning Codes and any other codes of the City. 13. It shall be the responsibility of the Subdivider to coordinate all work done by his contractors and subcontractors, such as scheduling the sequence of operations and the determination of liability if one operation delays another. In no case shall representatives of the City 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 Subdivision Agreement Tract No. 5007 Page 12 notice not less than two (2) working days in advance of the actual date on which work is to be started. Failure on the part of the Subdivider to notify the City Engineer may cause delay for which the Subdivider shall be solely responsible. 14. Whenever the Subdivider varies the period during which work is carried on each day, he shall give due notice to the City Engineer so that proper inspection may be provided. 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. 15. Any damage to the sewer system, concrete work or street paving that occurs after installation shall be made good to the satisfaction of the City Engineer by the Subdivider before release of bond, or final acceptance of completed work. 16. Adequate dust control shall be maintained by the Subdivider on all streets within and without the subdivision on which work is required to be done under this Agreement from the time work is first commenced 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 an approved dust palliative thereon with sufficient frequency to prevent the scattering of dust by wind or the activity of vehicles and equipment onto any street area or private property adjacent to the subdivision. Whenever in the opinion of the City Engineer adequate dust control is not being maintained on any street or streets as required by this paragraph, the City Engineer shall give notice to the Subdivider to comply with the provisions of this paragraph forthwith. Such notice may be personally served upon the Subdivider or, if the Subdivider is not.an individual, Subdivision Agreement Tract No. 5007 Page 13 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 treated. 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. 17. 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. 18. 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. 19. No assignment of this Agreement or of any duty or obligation of performance hereunder shall be made in whole or in part by the Owner or Developer without the written consent of City. Subdivision Agreement Tract No. 5007 Page 14 The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO, SUBDIVIDER a M nicipal Corporation WA)A&.0g41' DEYOUNG COMMUNITIES, INC. •, a California Corporation INTERIM DIRECTOR PUBLIC WORKS DEPARTMENT By: By: vlav-k -., Jerry 06young, resident ATTEST: REBECCA E. KLISCH CITY CLERK (Attach Notary Acknowledgment) O O By: - J Deputy APPROVED AS TO FORM: HILDA CANTO MONTOY City Attomey By: 2ZW5 � puty DATE:September 12,2002 STATE OF CALIFORNIA, COUNTY OF Fresno } S.S. On September 13, 2002 , before me, Anna M. Renna a Notary Public in and for said County and State, personally appeared -ferry A. DeYoung personally known to me (or proved te FOR NOTARY SEAL OR STAMP to be the person( whose name(p) is/em subscribed to the within instrument and acknowledged to me that he/sheAkey executed the same in hisffim fteirr�F ANNA M. NNA authorized capacity(ies), and that by his/I is RE �� COMM.#1231165 00 signature on the instrument the person(, or m ® o NOTARY PUBLIC CALIFORNIA 7 PRINCIPAL OFFICE IN 00 FRESNO COUNTY the entity upon behalf of which the person( f �(IFOPM�� My Commission Exp.Aug.30,2003 acted, executed the instrument. WIES �dn al se . Signa STATE OF CALIFORNIA, COUNTY OF } S.S. On , before me, a Notary Public in and for said County and State, personally appeared personally known to me (or proved to me on FOR NOTARY SEAL OR STAMP the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature TE 180 Legal(2-94) This form is furnished by Chicago Title Company Tract No. 5007 P.W. File No. 10439 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on July 3, 2002, in the office of the Fresno County Recorder, Document No. 2002- 0110333, Official Records of which the Deed of Trust in by and between DeYoung Communities, Inc., a California Corporation and Bonadelle Development Corporation, a California Corporation, as Trustor, Chicago Title Company, a California Corporation, as Trustee and IndyMac Bank, F.S.B., as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Subdivision Agreement for Tract No. 5007, Phase I of Vesting Tentative Map Tract No. 5007/ UGM. S 4 DATED: RSC 20 d Z BE FICIARY IND MAC BANK F.S . By. lel�1>li>�RO <00 At SkP. By: (Attach Notary Acknowledgement) STATE OF CALIFORNIA, }COUNTY OF S.S. ti(tt� -�cY' On J�, L-�-CJ , before me, Z e a,N/otary Public in and for said County and State, personally appeared personally known to me (O FOR NOTARY SEAL OR STAMP tsatisfaetery evideRee to be the person(&) whose name(h) is/are-subscribed to the within instrument and acknowledged to me that he/sheflhey executed the same in his/herftheir DRINDAS.COOK authorized ca acit Commission#1354897 p y(iee}; and that by his/11er�en SNotary Public-CaNfom{a � signature(b) on the instrument the person(, or i Los Angeles County the entity upon behalf of which the person(( 10Myr,, Mey31,2008 acted, executed the instrument. WITNESS my hand and official seal. Signature ZA STATE OF CALIFORNIA, COUNTY OF } S.S. On , before me, a Notary Public in and for said County and State, personally appeared personally known to me (or proved to me on FOR NOTARY SEAL OR STAMP the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature TE 180 Legal(2-94) This.form is furnished by Chicago Title Company EXHIBIT A Subdivision Agreement for Tract 5007 A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES Water System Construction Cost Estimate $255,174 Well Construction Cost Estimate $0 Sewer System Construction Cost Estimate $273,440 Street Construction Cost Estimate $1,613,491 Final Cost Estimate(for Inspection Fee purposes) $2,142,105 481 Landmarks, Monuments, Lot& Block Comers($50/ea) $24,050 Sub-Total(for bonding purposes) $2,166,155 Construction Contingency(10%) $216,616 TOTAL COST ESTIMATE* (for Improvement securities purposes) IF $2,382,771 $2,383,000 *All amounts rounded to nearest$1000 B. IMPROVEMENT SECURITY REQUIREMENTS(due with subdivision agreement) Performance Security (100%of Total Cost Estimate) 95%of amount shall be in the form of a bond by duly authorized corporate sureties or irrevocable letter of credit $2,264,000 5%of amount shall be in cash or a Certificate of Deposit $119,000 _ Payment Security (50%of Total Cost Estimate) 100%of amount shall be in the form of a bond by duly authorized corporate sureties or irrevocable letter of credit $1,191,500 Faithful Performance Security to Guarantee Completion of Plans Street Plans $0 Utility Plans(Sewer.Water, Storm Water) $0 Street Light Plans $0 Landscaping/Irrigation/Walls $2,000 100%of amount shall be in cash or a Certificate of Deposit I $2,000 C. WARRANTY SECURITY REQUIREMENT*(due as condition of acceptance of the work) 5%of first$50,000 of the Total Cost Estimate $3,000 3%of next$50,000 $2,000 1%of next$400,000 $4,000 0.5%of amount over$500,000 $9,400 Minimum amount $18,400 EXHIBIT A v4/28/00 Prepared By: Rick Date:, 08/20/02 Print Date:08/29/02 9:02:30 AM Page 1 of 1 EXHIBIT B Subdivision Agreement for T-5007 NET AMOUNT AMOUNT A. MISCELLANEOUS FEES&CHARGES EXTENSION DUE DEFERRED 1. INSPECTION FEE SO Final Cost Estimate<$10K (7%;$300 minimum tee) SO Final Cost Estimate>$10K<$500K ($700+4%of amount over$10K) 52,142,105 Final Cost Estimate over$500K 561,352.63 ($20,300+2.5%of amount over$500K) Less Inspection Fees paid with Early Sewer/Water Construction Agreement $25,279.00 Less Inspection Fees paid with Early Street Construction Agreement $0.00 Inspection Fee $36,073.63 536,073.63 2. MONUMENT CHECK FEE 223 Lots and Outlots 530.00 per Lot $6,690.00 (Min$200) 3. STREET SIGNS 0 Street Name Sign sets 5173.00 per set 53 806.00 $3,806.00 10 Waming/Regulatory signs 577.00 sign $770.00 5770.00 4.STREET TREES 21 City Installed(15-gallon)Street Trees 5129.00 per Tree 52,709.00 $2,709.00 C�Inspection Fee(when planted by subdivider) 530.00 per Tree ® na C Trees by Covenant(Resolution 98-129;2 trees/Lot fronting 50'streets) 5.STREET RIGHTS OF WAY ACQUISITIONICONSTRUCTION CHARGE per FMC 11-226(1)(6) Lum Sum Charge as established by Public Works Director I nal na 6. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-2) ®Lots(anticipated maintenance cost) 535.48 per Lot 57,907.58 Lots(Incidental sea:legal tees, per Lot publications,mailings, engineering, ($1,500 223 assessment district proceedings min) 51,500.00 Lum Sum Landscape area Field Inspection Fee-Parks ® 5305.00 LS $305.00 Total $9,712.58 $9,712.58 547.70 Estimated assessment per Lot(information only) 7. IRRIGATION PIPELINE(one-time maintenance fee) 0 Lineal Feet a 55.00 per LF nal 8. URBAN RESERVE 41 CORRIDOR NEXUS STUDY CONTRIBUTION Freewa 41/Friant Road/Herndon Corridor 44.7448 Adjusted Gross Acres Q 5250.00 per AG Ac $11.186.20 TOTAL MISCELLANEOUS FEES&CHARGES $70,947.41 $70,947.41 EXHrarT 8 x11101101 PrWAW 09/12102 2:53:09 PM Pape 1 of 5 EXHIBIT B Subdivision Agreement for T-5007 NETAMOUNT AMOUNT EXTENSION DUE DEFERRED B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED 47.7186 Gross Acres 0.0000 Net Acres 44.7448 Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets 223 Units(residential) 0 LUE(non-residential) R-1 Zoning m Input"ugm"if within the Urban Growth Management Area or"no" 1. LOCAL DRAINAGE FEES FMFCD Drainage Area 0.0000 Acres per FMFCD @ 30 per Acre na Local Drainage Fee $0.00 $0.0-01(81) (B1)All or portion of fee obligation satisfied pursuant to FMFCD agreement. 2. SEWER CONNECTION CHARGES (a)Labral Sewer Charge Lateral Sewer Charge 1 313-00 0.00 0.00 (b Owrsizs Sewer Charge 43 UGM Reimbursement Area Frontage: Beh mer 134,313 SF Frontage: Wilkr// J 1 161,631 SF Total Square Feet 1 295, SF 295 944 SF;sub-total Oversize Sewer Charge @ 30.05 per SF 314,797.20 Less estimated Oversize Credits 32,483.00 Lose estimated Overdepth Credits 3893.00 Oversize Sewer Charge $11,3217n $0.00 11,321. 0 (c Trunk Sewer Charge Herndon I Trunk Sewer Service Area 223 Units @ 3496.00 per Unit $110-,608.00 (d)Wastewater Facilities Charge Fee to be paid at the rate in effect at time of issuance of building permit The fee rete currently in effect is$2,119 per Unit(FMC 9-503-b) (s�Tru Enhancement Charge Herndon Trunk Sewer Service Area 223 Units @ 3874.00 per Unit $194,902.00 3. WATER CONNECTION CHARGES (a)Time 3 Material Charges("Wet-Tie") 2002 0605 1 Estimate Number 4885 Water Job Number Estimated Deposit(FMC 14-111-n 0 0.00 (83) (B3) Deposit paid with Early Construction Agreement Connection (bi)Service16 1-1/2-Meters 171 V Meters to xi tinagatierviervioes @ $4 .00 each $ 32,820.00 1 $0.00 32,820.0 EXHIBIT B A VOI 01 PrlMed 09/12002 2:53:09PM Page 2 of 5 EXHIBIT B Subdivision Agreement for T-5007 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED (b2)Landscape Service Connection Charges 211"Meters to ebsbng services @ 5320.00 each 640.00 $640.00 (c)Frontage Charge Frontage Charge 35-71 $0.00 50.00 (d)Fire Hydrant Charge 1 511 381 SF;residential zoning @ 50.75 per 100 SF $� 11,335. 6 (e)Transmission Grid Main Charge A UGM Reimbursement Area 47.7186 Gross Acres ® 5560.00 per Gr Acre 526,722.42 Less Estimated TGM Construction Credits 5129,895.00 Transmission Grid Main Charge 1 ($103,172.58)1 1 Paidw its ( Transmission Grid Main Bond Debt Service Charge 47.7188 Gross Acres ® 5243.00 per Gr Acre 511,595.62 Less Estimated TGM Bond Debt Service Charge Credits 50.00 Transmission Grid Main Bond Debt Service Charge I $11,595M 1 $0.00 11, 9 .62 ( UG�SuPPN Fee 101s Supply Well Service Area 223 Living Units(residential) @ 5397.00 per Unit 588,531.00 Less Estimated UGM Water Supply Fee Constriction Credits 5127,000.00 UGM Water Supply Fee a w i s (h Well Heed Treatment Fee 101 Weil Head Treatment Service Area 223 Living Units(residentiaq @ 50.00 per Unit 50.00 Less Estimated Well Head Treatment Fee Construction Credits 50.00 Well Head Treatment Fee C 0. 0 $0.00 ( Recharge Fee 101 Recharge Service Area 223 Living Units(residential) ® 50.00 per Unit 50.00 Leas Estimated Recharge Fee Construction Credits 50.00 Recharge Fee 1 $0.00 1 1 0.00 Qj 1994 Bond Debt Service Fee 101 1994 Bond Debt Service Fee Service Area 223 Living Units(residential) ® 5895.00 per Unit 5199,585.00 Less Estimated 1994 Bond Debt Service Fee Construction Credits 50.00 1994 Bond Debt Service Fee ®0E-11-9728750701 4. URBAN GROWTH MANAGEMENT(UGM)FEES&CONSTRUCTION CREDITS (a UG�TATI to FEE 21 Fire Station Service Area 47.7186 Gross Acres @ 51,388.00 per Gr Acre 566,233.42 so 66,233.42 EXHIBIT 8 01A1A1 Prktod 08/12/02 2:53:09 PM Pape 3 of 5 EXHIBIT B Subdivision Agreement for T-5007 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED (b UG�BORHOOD PARK FEE 7 Neighborhood Park Service Area 47.7186 Gross Acres @ $1,690.00 per Gr Acre $80,644.43 $0.00 $80,644.43 (c UG) M MAJOR STREET CHARGE F Major Street Zone 44.7448 Adjusted Gross Acres @ $2,500.00 per AG Ac $111,882.00 Less Estimated Major Street Charge Construction Credits $165,790.00 Major Street Charge 1 ($53,928.3M 1 $0.0-0-1 1 Paidw Its (d UG) M MAJORSTREET BRIDGE CHARGE F Major Street Bridge Zone 44.7448 Adjusted Gross Acnes @ $50.00 per AG Ac $2,237.24 Less Estimated Major Street Bridge Charge Construction Credits Major Street Bridge Charge 1 $2,237.24 1 so-Ml 2,23 .2 (a)UGM TRAFFIC SIGNAL CHARGE 44.7448 Adjusted Gross Acres $860.00 per AG Ac $38,480.53 Less Estimated Traffic Signal Charge Construction Credits Traffic Signal Charge $38,480.01 1 $0.00 $38,480.53 ( UGM GRADE SEPARATION CHARGE Grade Separation Service Area 44.7448 Adjusted Gross Acres @ $0.00 per AG Ac Less Estimated Grade Separation Charge Construction Credits Grade Separation Charge I so-001 I $0. 0.00 ( UG RADE RAILROAD CROSSING FEE At-Grade RRX Ing Service Area 44.7448 Adjusted Gross Acres @ $0.00 per AG Ac Less Estimated At-Grade RRX Ing Charge Construction Credits At-Grade RRX Ing Fee $0.001 ®0 �. 0 (h)UGM TRUNK SEWER FEE Trunk Sewer Service Area 44.7448 Adjusted Gross Acres_ ® $0.00 per AG Ac Less Trunk Sewer Fee Credits Trunk Sewer Fee $0.00 0. 0 0.00 (i OVERLAY SERVICE AREA Millbrook Overlay Service Area 44.7448 Adjusted Gross Acres @ $0.00 per AG Ac $0.00 5. COPPER f WILLOW INFRASTRUCTURE CONTRIBUTIONS Copper f Willow 0.0000 Vehicle Trips @ $74.76 per Vehicle $0.00 $0.00 Trip 6. POLICE SUBSTATION FEE Informational Only This Fee Due With Issuance of Building Permits Northwest Fresno Service Area 223 Residential Living Units @ $66.00 per Unit EXHIBIT 8 01101101 Printed 09/12002 2:53:09 PM' Page 4 of 5 EXHIBIT B Subdivision Agreement for T-5007 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED Total Impact Fees 6 Charges $614,733.22 $317,485.36 $482,357.44 Note: EXTENSION total includes net results of construction credits SUMMARY TOTAL(A) MISCELLANEOUS FEES&CHARGES $70,947.41 TOTAL(B) IMPACT FEES&CHARGES $317,485.36 3482,357.44 TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $388,432.77 EXHIBIT 8 vi tptpt Purled 08112/012 2:53:08 PM Pape 5 of 5 ACKNOWLEDGMENT AND UNDERSTANDING OF LANDSCAPING MAINTENANCE ASSESSMENT I/We the undersigned have been advised by the Subdividers Representative and hereby acknowledge and understand that the property I/We have purchased lot(s) of Tract No. 5007/UGM, is subject to an annual assessment currently estimated at$ 47.70. The annual assessment represents my/our fair share of the costs for maintenance of the landscaped easements maintained by the City within Tract No. 5007/UGM. I/We understand that the current estimated assessment is only an estimate for the current year and that the current year and that the assessment may increase or decrease in future years. I/We also understand that by signing this document I/We have not waived my/our rights to protest the assessment amount at the noticed annual public hearing held by the City Council. Purchaser Date Co-Purchaser Date Subdividers Representative Date FTW07 Subaivislon Agieement.wpd (September 28,2002) EXHIBIT "C" EXHIBIT "D" City of L!sInn\I FIRE DEPARTMENT DATE: August 30, 2002 TO: PLANNING DIVISION FROM: MIKE SCHMIDT,�Supervising Senior Fire Prevention Inspector SUBJECT: FIRE DEPARTMENT REQUIREMENTS FOR TRACT NO. T-5007 This tract was originally reviewed using existing public streets to determine the actual travel distance from temporary Fire Station No. 21 to the tract. The distance was determined to be over three miles and therefore, the UGM ordinance would require that the houses be sprinklered or only built on every other lot, etc. The developer has proposed to provide and maintain a temporary"emergency only fire lane" in approximately the Olympic Avenue alignment that would connect between Millbrook Avenue and Cedar Avenue. This temporary-fire lane would shorten the travel distance between temporary Fire Station No.21,and Tract No. 5007 to three miles or less. Therefore, with this proposed access in place, we would have no restrictions on construction such as fire sprinklers, building on intermittent lots, etc. To implement this change, the following things must happen: 1. Developer must provide a map to show the location of the proposed fire lane and the shortened path from temporary Station 21 to T-5007. 2. Developer must provide covenants for the installation and maintenance of the proposed fire lane. 3. The fire lane shall be a minimum 20' wide all weather surface road capable of carrying a minimum of 72,000 pounds and approved by Fresno Fire Department. 4. The fire lane shall be installed (approved by Fire Prevention Bureau) prior to issuance of any building permits. 5. The fire lane shall be maintained until permanent Fire Station No. 21 is.occupied ands eperationai dit Tract T-5007 Memo ADDENDUM TO SUBDIVISION AGREEMENT (RIGHT-OF-WAY ACQUISITION) 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 rights-of-way 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 the City commence such proceedings as are necessary and proper to acquire said easements and rights-of-ways 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. Page 1 ADDENDUM TO SUBDIVISION AGREEMENT TRACT NO. 5007, East Behymer Avenue 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 the 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 judgement. 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 the 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 deed necessary to pursue the condemnation action to final judgement. 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 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 Page 2 ADDENDUM TO SUBDIVISION AGREEMENT TRACT NO. 5007, East Behymer Avenue prosecution or compromise of the condemnation proceedings, as he deems necessary and appropriate in the exercise of his sole professional judgement 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 cost actually incurred, and upon any amounts thereafter incurred, at the rate of ten (10) percent per annum until paid. In any action brought by the City as the result of Subdivider's failure to timely and fully deposit the amounts demanded, City may recover its reasonable attorney's fees and litigation costs. 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. Page 3 ADDENDUM TO SUBDIVISION AGREEMENT TRACT NO. 5007, East Behymer Avenue 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 an be created 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, and 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 Section 65920, et sec.). -_ 14. No partial invalidity of this agreement shall invalidate the remainder. III / /// /// /// /// /// Page 4 ADDENDUM TO SUBDIVISION AGREEMENT TRACT NO. 6007, East Behymer Avenue