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T-5103 - Agreement/Covenant - 8/11/2006
WHEN RECORDED MAIL TO p City Clerk W City of Fresno +� }• 2600 Fresno Street Q 0. Fresno, CA 93721-3603 z 09/09/2093,20030214580 0 NO FEE-Government Code 6103 P.W. File No. 10474 City of SUBDIVISION AGREEMENT Includes "Addendum to Subdivision Agreement" for Rights-of-Way Acquisition Tract No. 5103 Phase III of Vesting Tentative Map Tract No. 4188/UGM 400 PUBLIC WORKS DEPARTMENT 2600 FRESNO STREET FRESNO, CALIFORNIA 93721-3616 (559) 621-8650 THIS AGREEMENT is made this day of Se�•*PA!-M4f - ,2003, by and between the City of Fresno,a Municipal Corporation, hereinafter designated and called the"City," and Northern Sun Villas Estates, a California Limited Partnership, 2278 Trade Zone Boulevard, San Jose, California 95131, hereinafter designated and called the"Subdivider,"without regard for number or Gender. r� Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 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. 5103/UGM, 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 Vesting Tentative Map Tract No. 4188/UGM 400 dated October 25, 1996 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. F. All such instruments of subordination, if any, are attached hereto and made a part of this instrument. gubdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 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 July 1, 2004, except as noted in (b), and (c) listed below. b. The Sidewalk and driveway approach construction for the interior lots of the subdivision shall be completed on or before July 1, 2005, (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. 5103,°per Resolution No.98-129 requirements for 50-foot and 56-foot local street pattens. d. 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 lll, Article 9 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. 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 Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 4 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. 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 corners required to locate land divisions shown on the Final Map. Pursuant to Section 66497 of the State Subdivision Map Act, prior to the City's final acceptance of the subdivision and release of securities, the Subdivider shall submit evidence to the City of Fresno of payment and receipt thereof by the 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. 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 e Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 5 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. i. A condition of approval of Vesting Tentative Map No. 4188, is the Subdivider's responsibility to maintain the landscaping within the 20-foot wide landscape easement required - - - -- along the rear and side property lines of all lots along South Minnewawa Avenue. The Subdivider has elected that all final map phases of Vesting Tentative Map No. 4188 are to be to annexed into the City's Community Facilties District No. 2 (CFD-2) and be assessed a fair share of the maintenance costs for such landscape easements whether or not such easements are within a final map phase. The Final Map of Tract No. 5103 has been duly annexed into the CFD-2 to satisfy this requirement. The Subdivider has agreed to provide notice to each prospective purchaser of a lot within the subdivision,the"Notice of Special Tax", in accordance with the provisions of Section 53341.5 of the California Government Code. j. As a condition of final map approval the Subdivider is required to submit improvement plans and profiles for sewer, water, storm sewer, street, street lighting, landscaping/irrigation(Outlot A,T-4188),grading and walls(FMC§12-10114-3,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: i. City Drawing Nos: [10-C-8207 through 10-C-8212 with Water Job No. 4892 (6 sheets) inclusive, 15-C-5593 through 15-C-5597 ( 5 sheets) inclusive, 4-C-686( 1 sheet) inclusive; unless specifically omitted herein. ii. Landscape and Irrigation plans for Outlot"A" of Tract 4188. Install and complete all other street improvements required by Section 12-1012 of the Fresno Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 6 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, 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. o. Subdivider shall improve Outlot"A"of Tract 4188 as said tract map is recorded in Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 7 Volume 60 of Plats, Pages 60,61, and 62, as Document No. 97035410, Fresno County Records, in accordance with the landscaping and irrigation plans approved by the Planning and Development Department, such improvements shall be completed and accepted prior to occupancy of the first lot of Tract No. 5103. Quilet "A" Y "A" 11 1 1 . /a, 7//?I03 P. The Subdivider is required to provide a second point of access to the subdivision pursuant to Condition No. 38, of the Conditions of Approval. The City Engineer has made the requirement, and Subdivider agrees,that prior to the completion of the construction of the second - --point of access or an acceptable alternative, that issuance of building permits within-Tract-5103 shall be limited to 50% of the lots ( 24 lots). Said requirement shall remain in place and be enforced until an acceptable design and construction of the second point of access, is approved by the Public Works Department. Said requirement shall be removed when the second point of access or an alternative as approved by the City Engineer, becomes operational. 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 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. 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 California subject to the approval of the City and on forms furnished by the City. 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 Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 8 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. Is d. DEPOSITS per Addendum for Right-of-Way Acquisition: 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 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 Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 9 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. 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 complywith Street,Plumbing, Building,Electrical,Zoning Codes and any other codes of the City. Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 10 13. It shall be the responsibility of the Subdividerto coordinate all work done by his contractors and subcontractors, such as scheduling the sequence of operations and the determination of liability if one operation delays another. In no case shall representatives of the City of Fresno be placed in the position of making decisions that are the responsibility of the Subdivider. It shall further be the responsibility of the Subdivider to give the City Engineer written notice not less than two(2)working days in advance of the actual date on which work is to be started. Failure on the part of the Subdivider to notify the City Engineer may cause delay for which the Subdivider shall be solely responsible. 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 Subdivision Agreement for Tract No. 5103 Phase III of Tentative Tract 4188 Page 11 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 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 for Tract No. 5103 Phase III of Tentative Tract 4188 Page 12 The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO, SUBDIVIDER a Municipal Corporation Northern Sun Villas Estates, Jon R. Ruiz, Director a California Limited Partnership Public Works Department Northern California Universal Enterprise Co. a California Corporation, as Partner By: - Michael T. Wirn, Assistant Director Public Works Department By: Joe Wu, P i ent ATTEST: REBECCA E. KLISCH CITY CLERK By: (Attach Notary Acknowledgment) Deputy APPROVED AS TO FORM: HILDA CANTO MONTOY City Attorney By: Deputy , CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA } COUNTY OF C L fr�Z f4- } SS. On \( 21 before me, the u77 g d, a Notary Public in and for said State personally appeared me(s)of Signer(s) ❑ Personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name( A/are subscribed to the within instrument and acknowledged to me that he/she/bey executed the same in his/herlthW— authorized capacity(jes), and that by his/her/their dLMBHWI B.DESAI signature(sfion the instrument the person(s), or the COMM.#1253197 3 entity upon behalf of which the person(s) acted,. W NOTARY PUBl.1C-C,4L�FORNIA m executed the instrument. SANTA CLARA COUNTY P MY Commissbn Expires FEB.11,2004 Witness my hand and official seal. Signature of Notary gHW- T1 f� -J)t7 41 (Area above for official notarial seal) Name(Typed or Printed) Capacity Claimed by Signer Description of Attached Document Individual(s) (Although this information is optional, it could prevent fraudulent ❑ Corporate Officer(s) -Title(s) attachment of this certificate to another document.) This certificate is for attachment to the document described below: Title or type of document'g Q 31)1 V t s I oT/ ❑ Partner(s) /4 Gf-Er tq C- T ❑ Attorney-in-Fact --"- ❑ Trustee(s) ❑ Guardian/Conservator Number of pages ❑ Other: Date of document E:Z 2 Signer(s) other than named above Signer is Representing: Name of person(s) or Entity(ies) SAVA 91 A(7/98) CLERK'S CERTIFICATION STA TE OF CALIFORNIA ) CO LINTY OF FRESNO ) CITY OF FRESNO ) On September 4,2003, before me, Elvia Sommerville, Deputy City Clerk,personally appeared, Michael T. Kirn,Assist. Public Works Director, known to me(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) 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(s) the person(s), or the entity upon behalf of the City of Fresno of which the person(s) acted, executed the instrument. WITNESS my hand and official City Seal. REBECCA E. KL ISCH CITY CLERK c o By�. .aJ Deputy ADDENDUM TO SUBDIVISION AGREEMENT (RIGHT-OF-WAY ACQUISITION) WHEREAS, this is an addendum ("Addendum") to a subdivision agreement ("Agreement")entered into pursuant to the Subdivision Map Act, specifically, Government Code Section 66462, affecting the Final Map of Tract No. 5103 ("Final Map"); and, WHEREAS, Revised Vesting Tentative Map No. 4188/UGM 400, as approved by the City of Fresno ("Tentative Map") is a single family residential subdivision; and, WHEREAS,the City of Fresno approved the project subject to certain conditions of approval, which conditions required several public improvements in order to mitigate the impacts of the project upon urban infrastructure and physical environment; and, WHEREAS, in order to approve the Final Map, the Fresno City Council, as the Legislative Body approving final maps under the Map Act, must find the final map is in substantial compliance with the tentative map; and, WHEREAS, the Agreement pertains to subdivision improvements not completed and accepted at the time of approval of the Final Map; and, WHEREAS,this Addendum pertains specificallyto the street improvements beyond the limits of the Final Map required in the Tentative Map conditions, which require the Subdividerto develop the infrastructure of, and dedicate the right-of-way for, certain public streets that will directly or indirectly serve the project; and, WHEREAS,with respect to such street improvements required to be developed and dedicated, neither the Subdivider nor the City has sufficient title or interest at the time of final map filing to permit the improvements to have been completed prior to final map filing; and, WHEREAS,the Subdivider has notified the City(through the Public Works Director or Planning and Development Department Director) of the Subdivider's inability to acquire the necessary easements and rights-of-way by negotiation, and has requested City to use its best efforts to acquire the necessary easements at Subdivider's expense; and, WHEREAS, the City of Fresno desires to proceed with the acquisition of the necessary easements for the required public right-of-ways, at the expense of the Subdivider. Addendum to Subdivision Agreement Tract No. 5103 Page 2 NOW THEREFORE IT IS AGREED between Subdivider and Cityps follows: 1. Subdivider shall be responsible for the entire cost of acquiring the necessary easements, including, but not limited to the fair market value of the easements, legal fees, non-legal staff time, appraisal fees, any necessary court costs. 2. Subdivider shall initially deposit, upon execution of this agreement,the sums set out in the paragraph below captioned, "Summary of Initial Deposit". Such sums shall be utilized by the City to acquire the necessary easement and right-of-ways. If the 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 conclude the matters, such further payments to be made within ten (10) days of the mailing to the Subdivider of a notice requesting such additional funds.The notice shah state what costs have been incurred to date, what additional costs are anticipated; and how the City intends to apply these additional deposits. Subdivider's dissatisfaction with the adequacy or sufficiency of the notice for any reason shall not excuse Subdivider from any duty or obligation, including the obligation to deposit additional sums. If deposited sums exceed the actual full cost to acquire the subject rights-of-way, then at the conclusion of acquisition, City shall refund the difference as soon as the City determines the amount of such excess. 3. Subdivider shall have the option of providing timely 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. 4. Subdivider acknowledges that the initial cash deposits are estimates only and may increase if City's acquisitions costs related to any City efforts to acquire the property increase. Subdivider agrees to pay all proper and necessary charges incurred or paid by City in pursuing the acquisition of the subject property. City incurs no liability for its failure to accurately or properly estimate the actual costs incurred in the condemnation action. 5. 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 the proceedings and the termination and abandonment thereof. C. In the alternative,City may, in its sole discretion, allow the project to proceed 1 Addendum to Subdivision Agreement Tract No. 5103 Page 3 and treat all costs incurred pursuant to this agreement as p 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 the 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. 6. It is anticipated that it may be necessary for City to exercise its powers of eminent domain in order to acquire the necessary public right-of-way easements. Any determination to proceed with eminent domain will be made by the City Council of the City of Fresno, upon necessary findings. The City Council does not make any representations, guarantees or warranties, nor commits under this agreement, that it will exercise any of its authority or powers of eminent domain. 7. In the event eminent domain proceedings are commenced, 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 prosecution or compromise of the condemnation proceedings, as she deems necessary and appropriate in the exercise of her sole professional judgement and discretion. 8. Subdivider agrees that, if for any reason the City determines it necessary to assign the City's rights and responsibilities under this task to the County in order for the offsite road conditions to be implemented,the City may do so with written notice to Subdivider. Upon such assignment, all references to statutorily required actions on the part of the City in connection with eminent domain proceedings shall be construed to mean those same actions or legal equivalents on the part of the County. The Subdivider's responsibilities remain unchanged. 9. Compliance with the terms and conditions of this agreement is a condition of approval of any and all UGM subdivision map projects which are the subject of the principal agreement to which this ancillary agreement is a part. 10. Subdivider agrees that the Final Map shall be deemed filed as of the date the City Council finds the Final Map in substantial compliance with the tentative map and approves the same. Addendum to Subdivision Agreement Tract No. 5103 Page 4 11. Subdivider.acknowledges that, by execution of the Agreement, including this Addendum and the City's acceptance of the Final Map, Government Code Section 66462.5 is inapplicable to this subdivision. 12. Subdivider acknowledges that the tentative map approval was expressly conditioned upon the street improvement and right-of-way being provided as project mitigation. Nothing herein shall constitute as a waiver by the City of its police power or of its authority to protect the public against adverse development project impacts. Nothing herein modifies the tentative map conditions imposing offsite street improvements, or of any other tentative map condition, except as expressly provided for in the Agreement or in this Addendum. Subdivider will not seek to invalidate any claim or defense made by or on behalf of the City in pursuance of procurement of the street and right-of-way on any grounds including, but not limited to, the fact that all or a portion of the street right of way traverses through unincorporated territory within the jurisdiction of the County of Fresno. Subdivider agrees to act in good faith in implementing the road condition and to actively assist City in seeking to obtain the County Approvals. 13. City shall have a lien upon any and all performance, payment and other bonds or deposits posted by or for Subdivider in conjunction with the development as security for the payment of any costs, charges or fees called for by this Agreement. 14. Upon recordation of the Subdivision Agreement to which this addendum is incorporated by reference, City shall have a lien upon the lands more particularly described in the Subdivision Agreement as security for the payment of any costs, charges or fees called for by this Agreement. 15. At the conclusion of the acquisition of the necessary easements, 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. 16. 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 created for the benefit of Subdivider, less the City's reasonable or actual costs of administering the account and less any other charges which may be required or authorized by law. The parties agree that five per cent of the amount(s) deposited is the reasonable cost of administering the account. p 1 Addendum to Subdivision Agreement Tract No. 5103 Page 5 17. 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 her litigation expenses and reasonable attorney's fees and sanctions imposed by the Permit Streamlining Act (Government Code Section 65920, et seq.). 18. No partial invalidity of this agreement shall invalidate the remainder. 19. Summary of Initial Deposit. Easement Acquisition for property required to provide a 2"d point of access to Tract No. 5103. AMOUNT DEPOSITED: ITEM: $ 1,870 Estimated Land Value of Property $ 1,000 Escrow Fees $ 1,000 Appraisal $ 2,500 Real Estate Staff time $ 7,500 Attorney Staff time $ 3,468 Contingency (25%) $ 17,340 TOTAL (rounded) EXHIBIT A Subdivision Agreement for Tract 5103 A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES Water System Construction Cost Estimate $34,485 Well Construction Cost Estimate $0 Sewer System Construction Cost Estimate $31,980 Street Construction Cost Estimate $170,7251 Final Cost Estimate(for Inspection Fee purposes) $237 190 109 Landmarks, Monuments, Lot& Block Comers ($50/ea) $5,450 Sub-Total (for bonding purposes) $242,640 Construction Contingency (10%) $24,264 TOTAL COST ESTIMATE" (for improvement securities purposes) $26619041 $267,0 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 $254,000 5%of amount shall be in cash or a Certificate of Deposit $13,0001 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 $133,5001 Faithful Performance Security to Guarantee Completion of Plans Street Plans $0 Utility Plans(Sewer.Water, Storm Water) $0 Street Light Plans $0 Landscaping/Irrigation for Outlot"A"of T 4188 $1,000 100%of amount shall be in cash or a Certificate of Deposit $1,0001 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 $2,000 0.5%of amount over$500,000 $0 Minimum amount �— $7,000 EXHIBIT A v4/28/00 Prepared By: Rick Date:01/14/2003 Print Date:07/29/03 1:49:10 PM Page 1 of 1 EXHIBIT B Subdivision Agreement for T-5103 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED A. MISCELLANEOUS FEES&CHARGES 1. INSPECTION FEE s0 Final Cost Estimate<$10K na (7%;$300 minimum fee) 278 815 Final Cost Estimate>$1 OK<$500K 511 452.60 ($700+4%of amount over 510K) 50 Final Cost Estimate over$500K na ($20,300+2.5%of amount over$500K) Less Inspection Fees paid with Early Sewer/Water Construction Agreement $2,959.001 Less Inspection Fees paid with Early Street Construction Agreement 55 630.00 Inspection Fee 52 863.601 $2,863.601 2. MONUMENT CHECK FEE 49 Lots and Outlots @ 530.00 per Lot s1 470.00 $1,470..00 (Min$200) 3. STREET SIGNS ®Street Name Sign sets @ 5173.00 per set 5692.00 $692.00 ©Waming/Regulatory signs @ 577.00 sign 2.00 $462.00 4. STREET TREES City installed(15-gallon)Street Trees @ 5129.00 per Tree na nal 98 Inspection Fee(when planted by subdivider) @ 530.00 per Tree s2 940.00 $2,940.001 98 Trees by Covenant(Resolution 98-129;2 trees/Lot fronting 50'streets) 5. STREET RIGHTS OF WAY ACQUISITIOWCONSTRUCTION CHARGE per FMC 11-2260(6 Lump Sum Charge as established by Public Works Director 1 $0.00 s0.00 6. LANDSCAPE MAINTENANCE DISTRICT FEES(CF13-2) 49 Lots(anticipated maintenance cost) @ 50.00 per Lot na Lots(Incidental expenses:legal fees, per Lot publications,mailings,engineering, ($1,500 49 assessment district proceedings @ 50.00 min) 51 500.00 Lum Sum Landscape area Field Inspection Fee-Parks @ 5305.00 LS 305.00 Total 51805.00 $1805.00 623.00 Estimated assessment per Lot(information only) 7. IRRIGATION PIPELINE(one-time maintenance fee) Lineal Feet @ 65.00 per LF 0 [ e 8. URBAN RESERVE 41 CORRIDOR NEXUS STUDY CONTRIBUTION Freewa 4111 Friant Road/Herndon Corridor 0.0000 Adjusted Gross Acres @ 5250.00 per AG Ac E $0.00' $0.00 TOTAL MISCELLANEOUS FEES 8 CHARGES $10,232.60 $10,232.60 EXHIBIT 8 v11/01/01 Printed 07/01M3 11:39:27 AM Page 1 of 4 V ► EXHIBIT B Subdivision Agreement for T-5103 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED 9.4838 Gross Acres 9.4838 Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets 49 Units(residential) R-1 Zoning u m Input"ugm"if within the Urban Growth Management Area or"no" 1. LOCAL DRAINAGE FEES BG I FMFCD Drainage Area 9.4838 Acres per FMFCD @ $4 240 per Acre $40 211.00 Local Drainage Fee 0 11. $40,211.001 2. SEWER CONNECTION CHARGES (a)Lateral Sewer Charge Lateral Sewer Charge $0.00 $0.00 • Fee Due for Lots under Early Issuance of Building Permits Agreement (b)Oversize Sewer Charge Oversize Sewer Charge $0.00 $0.00 • (c)Trunk Sewer Charge Fowler Trunk Sewer Service Area 49 Units @ $344.00 per Unit $1 856.00 $16,856.001 (d)Wastewater Facilities Charge Fee to be paid at the rate in effect at time of issuance of building permit.The fee rate currently in effect is$2,119 per Unit(FMC 9-503-b) (e Sewer Ca achy Enhancement Charge na Trunk Sewer Service Area 49 Units @ $0.00 per Unit na nal 3. WATER CONNECTION CHARGES (a)Time&Material Charges("Wet-Tie') 2002 0829 Estimate Number 4892 Water Job Number Estimated Deposit(FMC 14-111-f) ® $0.001(133) (0) Deposit paid with Early Construction Agreement (b1)Service Connection Charges 43 1"Meters to existing services @ $320.00 each $13.760.001 $0.001 $13 760.00 (c)Frontage Charge Frontage Charge $0.00 $0.00 • (d)Fire Hydrant Charge 334 391 SF;residential zoning @ F---—$0-7-51 per 100 SFr---$2 507.93 1 $2,507.931 (e Transmission Grid Main Charge UGM Reimbursement Area 9.4838 Gross Acres @ $560.00 per Gr Acre $5 310.93 Less Estimated TGM Construction Credits Transmission Grid Main Charge 1 $5 310.931 1 $620.31 " $4 690.62 EXHIBIT 8 v11101/01 Prided 07J01/03 11:39:27 AM Page 2 d 4 EXHIBIT B Subdivision Agreement for T-5103 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED ( Transmission Grid Main Bond Debt Service Charge 9.4838 Gross Acres @ $243.00 per Gr Acre $2 304.56 Less Estimated TGM Bond Debt Service Charge Credits $0.00 Transmission Grid Main Bond Debt Service Charge 3 4 •• $0.00 ' $0.00 ••Subject to vesting tentative map date,fee may not be applicable until 2-years after date of Final Map recordation;when applicable,fee is due at Building Permit for all undeveloped lots at the fee rete then in effect. ( UGM Water Supply Fee 501s Supply Well Service Area 49 Living Units(residential) @ $507.00 per Unit $24 843.00 Less Estimated UGM Water Supply Fee Construction Credits UGM Water Supply Fee $24,843.001 $24,1143.00 (hil Well Head Treatment Fee 501 Well Head Treatment Service Area 49 Living Units(residential) @ 5207.00 per Unit 510 143.00 Less Estimated Well Head Treatment Fee Construction Credits Well Head Treatment Fee $10 143.00 $10 143.00 (I)Recharge Fee 5011 Recharge Service Area 49 Living Units(residential) @ $61.00 per Unit $2 989.00 Less Estimated Recharge Fee Construction Credits 0.00 Recharge Fee 2 89.00 $2,989.0-01 Q 1994 Bond Debt Service Fee 501 1994 Bond Debt Service Fee Service Area 49 Living Units(residential) ® 5244.00 per Unit $11 958.00 Less Estimated 1994 Bond Debt Service Fee Construction Credits 1994 Bond Debt Service Fee $11.9 $1,464.001- 4. 1 464.00 •4. URBAN GROWTH MANAGEMENT(UGM)FEES&CONSTRUCTION CREDITS (e UG�TATI FEE 15 Fire Station Service Area 9.4838 Gross Acres @ $605.00 per Gr Acre $5 737.70 $670.16 • $5 067.54 r (b)UGM NEIGHBORHOOD PARK FEE 2 Neighborhood Paris Service Area 9.4838 Gross Acres (d $1 650.00 per Gr Acre $i3,94--8.0 $1,827.70 V $13 820.57 (c UG 21 STREET CHARGE D-11E-2 Major Street Zone 9.4838 Adjusted Gross Acres @ $2 180.00 per AG Ac 520 674.68 Less Estimated Major Street Charge Construction Credits $0.00 Major Street Charge $20,674.681 $2 414.78 ' $18 259.89 EXHIBIT B v1 V0V01 Printed 07101103 11:39:27 AM Page 3 of 4 EXHIBIT B Subdivision Agreement for T-5103 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED (d)UGM MAJOR STREET BRIDGE CHARGE D-1/E-2 Major Street Bridge Zone 9.4838 JAdjusted Gross Acres @ $210.00 per AG Ac $1 991.60 Less Estimated Major Street Bridge Charge Construction Credits Major Street Bridge Charge 1 .60 $232.6-21- $1 758.98 (e UG) M TRAFFIC SIGNAL CHARGE 9.4838]Adjusted Gross Acres Qa $860.00 per AG Ac $8156.07 Less Estimated Traffic Signal Charge Construction Credits Traffic Signal Charge $8,156,071 $952.6-21- (fl 952.62 -( UGE SEPARATION CHARGE Grade Separation Service Area 9.4838 Adjusted Gross Acres @ $0.00 per AG Ac na Less Estimated Grade Separation Charge Construction Credits Grade Separation Charge $0.0-01- (g) 0.00 -( UG RADE RAILROAD CROSSING FEE At-Grade RRX ing Service Area 8.4838 Adjusted Gross Acres @ $0.00 per AG Ac na Less Estimated At-Grade RRX ing Charge Construction Credits At-Grade RRX ing Fee (h)UGK SEWER FEE Trunk Sewer Service Area 9.4838 Adjusted Gross Acres @ $0.00 per AG Ac na Less Trunk Sewer Fee Credits Trunk Sewer Fee (i)OVERLAY EWER SERVICE AREA Millbrook Overlay Service Area 9.4838 Adjusted Gross Acres @ $0.00 per AG Ac na $0.00 - na Total Impact Fees&Charges $188,68914 $105,732.13 $75,063.05 Note: EXTENSION total includes net results of construction credits SUMMARY TOTAL(A) MISCELLANEOUS FEES&CHARGES 1 $10,232.601 TOTAL(B) IMPACT FEES&CHARGES $105 732.13 $75 053.05 TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $115,964.73 EXHIBITS vil/01/01 Printed 07/01/03 11:39:27 AM Page 4 or 4 � r SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on March 11, 2003, in the office of the Fresno County Recorder, Document No. 2003-0055914 of which the Deed of Trust in by and between Northern Sun Villas Estates, a California Limited Partnership, as Trustor, First American Title Company, a Corporation, as Trustee and Grand Pacific Financing Corporation, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Subdivision Agreement for Tract No. 5103, Phase III of Vesting Tentative Tract No. 4188/UGM. DATED: August 12 , 200 i Richa dao, Senior Vice President Grand A6-(ic. FInQncins �`.P By: (Attach Notary Acknowledgment) State of California ) ) s.s , County of Los Angeles ) On August 12, 2003 before me, Keith Lam, Notary Public, personally appeared Richard Tao, personally known to me (ef to me n the is of.a fis f e*er•a ideftee) to be the person(s)whose name(s) is/e&e subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/ authorized capacity(ies), and that by his/her signature(&) on the instrument the person(&), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. + Con mbdm 12917V k t W Public-ccefomla Un Angeles County MvCMM BPhMJm2M=5 Signatur4No ublic (Seal)