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T-5141 - Agreement/Covenant - 8/2/2005
WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 0 01t� w © � NO FEE -Government Code 6103 1,j— U c 21M U City of EMMET PUBLIC WORKS DEPARTMENT 2600 Fresno Street Fresno, California 93721-3616 (559) 621-8650 P.W. File No. 10695 SUBDIVISION AGREEMENT INCLUDING "ADDENDUM TO SUBDIVISION AGREEMENT" FOR RIGHTS-OF-WAY ACQUISITION FOR TRACT NO. 5141 Subdivision Agreement w/ROW Addendum Tract No. 5141 Page 2 THIS AGREEMENT is made this oZ$ day of d��e , 2055 , by and between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City,"and Lennar Fresno, Inc.,a California Corporation, 7485 North Palm Avenue, Suite#101 Fresno, CA 93711, hereinafter designated and called the"Subdivider,"without regard for number or Gender. RECITALS A. The Subdivider has presented to the City a certain final map of a proposed subdivision of land owned by the Subdivider and located within the corporate limits of the City known and described as Tract No. 5141, (hereinafter referred to as the "Final Map" and incorporated into this agreement by this reference) and has requested the City to accept the dedications delineated and shown on the Final Map for the use and purposes specified thereon, and to otherwise approve the Final 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 the Final Map, the dedication of such streets, highways and public places and easements as are delineated and shown on the Final Map,and deems the same as necessary for the public use, and also requires that any and all streets delineated and shown on the Final Map shall be improved by the construction and the installation of the improvements hereinafter specified. C. Section 12-1014 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 No. 5141/UGM dated February 4, 2004 issued by.the City and any amendments thereto (hereinafter referred to Subdivision Agreement w/ROW Addendum Tract No. 5141 Page 3 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 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 Final Map 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. 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 the Final Map, and in consideration of finding of substantial compliance with said tentative map, 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 one (1) year of the date of this agreement, except as noted below. b. The Sidewalk and driveway approach construction for the interior lots of the subdivision shall be completed on or before two (2) years of the date of this agreement. C. The Street Trees required for each lot shall be provided and planted by the Subdivider upon occupancy of each lot. All species of Street Trees to be planted in the subdivision shall be as approved by the City Engineer. The Subdivider shall notify the Public Works Department - Construction Management Division of the planting schedules and to schedule inspections. 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 III, Article 9 of UFC relating to Fire Department access and water supply. No building permit shall be issued until all Fire Department access and fire fighting water supply requirements have been met. No occupancy permit shall be Subdivision Agreement WROW Addendum Tract No. 5141 Page 4 issued until all Fire Department requirements for occupancy have been met. 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 the 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 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 2002 Edition of the City of Fresno Standard Specifications and Drawings (City Council Resolution No. 70-36 and Resolution No. 84-361) and any amendments thereto, (hereinafter referred to as "Public Works Standards") 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. Set all landmarks, monuments and lot corners required to locate land divisions shown on the Final Map. Pursuant to Section 66497of 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. 78-522 or any amendments or modifications which may be adopted by Council prior to the actual Subdivision Agreement WROW Addendum Tract No. 5141 Page 5 installation of the lights. The Subdivider shall construct a complete underground street light system as approved by the City 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 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 Public Works 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 Public Works Standards within seven (7)days from the time said basins become operational, oras 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 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. The Subdivider shall install and maintain the fencing/walls, landscaping, irrigation system and certain miscellaneous improvements in accordance with the approved improvement plans (i.e., Landscape and Irrigation Plans, Grading Plans), within the designated easements or areas required in the Conditions of Approval and delineated on the Final Map. The improvement plans for such landscaping, irrigation system and miscellaneous improvements shall be prepared by a licensed Landscape Architect, certified irrigation designer or other persons with landscaping and irrigation design expertise acceptable to the Planning and Development Director,except that for improvements to be maintained by f. Subdivision Agreement MROW Addendum Tract No. 5141 Page 6 the City's Community Facilities District No. 2 (CFD-2), such improvement plans shall be approved by the City Engineer. The Subdivider has elected to satisfy Subdivider's maintenance obligation of such improvements by annexing the Subdivision into CFD-2 and shall maintain such improvements until such time as the City Engineer determines that CFD-2 is responsible for such maintenance thereafter. Additionally Subdivider shall provide each prospective purchaser, a "Notice of Special Tax" in accordance with the provisions of Section 53341.5 of the California Government Code and the Statement of Covenants Affecting Land Development for the Maintenance of Landscaping and Irrigation System, and Traffic Circle Treatment for Tract No. 5141 recorded as Document No. on O , Fresno County Records and incorporated into this agreement by thig refe nce. j. Perform and construct all work shown on the following construction plans and any amendments thereto i. City Drawing Nos: 15-C-12072 through 15-C-12085 (street plans); . 4-C-809 through 4-C-810(street light plans): .10-C-8827 through 10-C-8841 (water and sewer plans); and Install and complete all other street improvements required by Section 12-1012 of the Fresno Municipal Code in accordance with the Public Works Standards and the construction plans. k. Prior to approval of the Final Map by the City, the Subdivider shall pay to the City and /or execute a covenant 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." I. In connection with assigning figures set forth in Exhibits"A"and"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. Subdivision Agreement WROW Addendum Tract No. 5141 Page 7 M. ADDENDUM TO SUBDIVISION AGREEMENT. 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 Addendum to Subdivision Agreement (Right-of-Way Acquisition) ("Addendum") attached to this Agreement and incorporated herein by this reference. Subdivider shall deposit with the City 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 with the City Engineer and the Public Works Standards, which said construction plans and Public Works Standards are hereby referred to and adopted and made a part of this Agreement. In case there are not any Public Works Standards 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. 5. Prior to the approval by the Fresno City Council of the Final Map, the Subdivider Subdivision Agreement WROW Addendum Tract No. 5141 Page 8 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 licenced to do business in California subject to the approval of the City and on forms furnished by the City. a. PERFORMANCE SECURITY. Total amount to equal to 100% of the Final Cost Estimated 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 to 50% of the Final Cost Estimated 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. Any and all other improvement security as required by Section 12-1016 of the Fresno Municipal Code. 6. On 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. Subdivision Agreement MROW Addendum Tract No. 5141 Page 9 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. 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. t Subdivision Agreement WROW Addendum Tract No. 5141 Page 10 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 Public Works Standards shall at ail 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 of Fresno. 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 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 Subdivision Agreement MROW Addendum Tract No. 5141 Page 11 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 Subdivideron 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, 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 Subdivision Agreement w1ROW Addendum Tract No. 5141 Page 12 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 Subdivider without the written consent of City. Subdivision Agreement MROW Addendum Tract No. 5141 Page 13 The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO, SUBDIVIDER a Municipal Corporation Lennar Fresno Inc., a California Corporation DAVID D. HEALEY, Director Public Works Department By: By: —Al'*, Michael T. Kirn, P.E., Assistant Director Sutton, Vice-President ATTEST: (Attach Notary Acknowledgment) REBECCA E. KLISCH, CMC City Clerk _4 O By: Deputy APPROVED AS TO FORM: HILDA CANTO MONTOY City Attor y By: Deputy CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of ail I �-- County of before me, I L � - , Date � _ !� `--�' 'r(e.g.,'Jane Doe.Notary Public') personally appeared , Namets)of Signers) �Personaily known to me 1 proved to me on 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 ;,; � o) iv�gRs executed the same in his/her/their authorized capacity(ies), _ °" COMM.#135713a and that b his/her/their signature(s)natures on the instrument the L ' m Y 9 iA Nota Public-California y t� � � • FRESNO COUNTY person(s), or the entity upon behalf of which the person(s) Nip COMM.Exp.June 16,2006 ac ed, ecuted the instrument. ITNE S my han and fficial seal I / Signature of Notary Public OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: O Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attomey-in-Fact ❑ Attomey-in-Fact ❑ Trustee ❑ Trustee _ ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other. Top of thumb here Signer Is Representing: Signer Is Representing: m 1996 National Notary Association,6236 Remmet Ave.,P.O.Bax 7184•Canoga Park CA 91309-7184 Prod.No.5907 Reorder Call Toll-Free 1-800-8766827 't CLERK'S CERTIFICA TION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On June 29, 2005, before me, Elvia Sommerville, Deputy City Clerk,personally appeared, Robert Andersen,Design Services Manager, 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,, CMC CITY CLERK d i By. Deputy June 29,2005( 29pm) _ N_ ADDENDUM TO SUBDIVISION AGREEMENT (RIGHT-OF-WAY ACQUISITION) WHEREAS, this is an addendum ("Addendum")to a subdivision agreement("Agreement") entered into pursuant to theZubdivision Map Act, specifically, Government Code Section 66462, affecting the Final. Map of Tract No. 5141, ("Final Map"); and, WHEREAS, Vesting Tentative Map No. 5141/UGM, as approved by the City of Fresno ("Tentative Map") is a single family residential subdivision; and, WHEREAS, the City 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 specifically to the street improvements beyond the limits of the Final Map required in the Tentative Map conditions, which require the Subdivider to develop the infrastructure of, and dedicate the right-of-ways 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 right-of-ways by negotiation, and has requested City 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. NOW THEREFORE IT AGREED between Subdivider and City as follows: 1. Subdivider shall be responsible for the entire cost of acquiring the necessary easements, whether the City acquires through negotiation or by use of it's powers of eminent domain, including, but not limited to the fair market value of the easements, legal fees, non-legal staff time, appraisal fees, any necessary court costs. Addendum to Subdivision Agreement Tract No. 5141 Page 2 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 right-of-ways,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 shall 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 right-of-ways,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 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 it is necessary to acquire the necessary easement through Eminent domain. 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. 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 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 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. Addendum to Subdivision Agreement Tract No. 5141 Page 3 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. 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. 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-ways 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 road 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-ways on any grounds.including, but not limited to, the fact that all or a portion of the street right of ways traverse 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. Addendum to Subdivision Agreement Tract No. 5141 Page 4 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 an 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 (5)per cent of the amount(s)deposited is the reasonable cost of administering the account. 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 North Hayes Avenue between West Palo Alto Avenue & North Veterans Blvd. AMOUNT TO BE DEPOSITED ITEM $94,200.00 Appraised value of property $2,000.00 Escrow Fees $10,000.00 Real Estate Staff time $15,000.00 Attorney Staff time $3,000.00 Appraisal Cost $37,260.00 Contingency (30% ±) $161,460.00 SUB-TOTAL $161500.00 TOTAL (rounded to nearest $100) EXHIBIT A Subdivision Agreement for Tract 5141 A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES Water System Construction Cost Estimate $221,210 Well Construction Cost Estimate $0 Sewer System Construction Cost Estimate $160,890 Street Construction Cost Estimate $1,312,768 Final Cost Estimate (for Inspection Fee purposes) $1,694,868 11 364 Landmarks, Monuments, Lot& Block Corners ($50/ea) $18,200 Sub-Total (for bonding purposes) $1,713,068 Construction Contingency(110%) $171,307 TOTAL COST ESTIMATE* (for improvement securities purposes) $1,884,375 i $1,884,000 All amounts rounded to nearest$1.000 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 $1,790,000 5% of amount shall be in cash or a Certificate of Deposit $94,000 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 $942,000 Faithful Performance Security to Guarantee Completion of Plans Street Plans $0 Utility Plans (Sewer.Water, Storm Water) $0 Street Light Plans $0 Land scaping/Irrigation/WaIIs $0 100% of amount shall be in cash or a Certificate of Deposit $0 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 $6,900 Minimum amount $15,900 EXHIBIT A v4/28/00 Prepared By: Frank Date: 06/14/05 Print Date:06/14/05 8:43:10 AM Page 1 of 1 EXHIBIT B Subdivision Agreement for T- 5141 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED A. MISCELLANEOUS FEES&CHARGES 1. INSPECTION FEE $1,694,868 Final Cost Estimate over$500K $69,782.59 ($20,793+4.1%of amount over$500K) Less Inspection Fees paid with Early Sewer/Water Construction Agreement $16,929.00 Less Inspection Fees paid with Early Street Construction Agreement $52,854.00 Inspection Fee $0.00 2. MONUMENT CHECK FEE 142 Lots and Outlots @ $30.00 per Lot 4 26 $4,260.00 (Min$200) 3. STREET SIGNS 15 Street Name Sign sets @ $173.00 per set $2 595.00 $2,595.001 © Warning/Regulatory signs @ $77:00 sign $462.00 $462.00 4. STREET TREES 162 Inspection Fee(when planted by subdivider) @ $30.00 per Tree $4,860.00 $4,860.00 OTrees by Covenant(Resolution 98-129;2 trees/Lot fronting 50'streets) 5. STAMPED CONCRETE STREET PAVING MAINTENANCE For the continued maintenance& replacement of Stamped Concrete Paving @ $20.00 per SF na na 6. STREET RIGHTS OF WAY ACQUISITION/CONSTRUCTION CHARGE per FMC 11-226(f)(6� Lum Sum Charge as established by Public Works Director na na 7. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-2) 142 Lots(anticipated maintenance cost) @ $1,533.97 per Lot $217,823.74 Lum Sum Other maintained features $436.88 Incidental expenses: legal fees,publications,mailings, Lum Sum engineering,assessment district proceedings $3,500.00 Lum Sum Landscape area Field Inspection Fee- @ $305.00 LS $305.00 Public Works Total $222,065.62 $222,065.62 $1 548.00 Estimated assessment per Lot(information only) 8. IRRIGATION PIPELINE(one-time maintenance fee) OLineal Feet @ $5.00 per LF na na 9. CASH IN-LIEU FEE Lum Sum Veterans Boulevard Street Improvements $375,910.00 $375 910.00 TOTAL MISCELLANEOUS FEES&CHARGES $610,152.62 $610,152.62 EXHIBIT B 01/01/01 Printed 06/14/05 8:43:52 AM - Page 1 of 4 EXHIBIT B Subdivision Agreement for T- 5141 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED 36.0600 Gross Acres 35.5351 Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets 142 Units(residential) R-1 Zoning u m Input"ugm"if within the Urban Growth Management Area or"no" 1. LOCAL DRAINAGE FEES EG FMFCD Drainage Area 28.9771 Acres per FMFCD @ $5,100 per Acre $147 783.00 EH FMFCD Drainage Area 7.0835 Acres per FMFCD @ $5,850 per Acre $41,438.00 Local Drainage Fee 189, 1.00 $189,221.5-01 2. SEWER CONNECTION CHARGES (a)Lateral Sewer Charge SF; sub-total Lateral Sewer Charge @ $0.10 per SF (b)Oversize Sewer Charge 19 UGM Reimbursement Area Frontage: N.Polk Avenue 417956 SF Frontage: N.Veterans Boulevard 429,000 SF Total Square Feet, 470,956 SF 470,956 SF;sub-total Oversize Sewer Charge @ $0.05 per SF $23,547.80 Less estimated Oversize Credits Less estimated Overdepth Credits Oversize Sewer Charge 23,547.80 $1,514.95' $22,032.85 Fee Due for Lots under Early Issuance of Building Permits Agreement (c)Trunk Sewer Charge Grantland Trunk Sewer Service Area 142 Units @ $419.00 per Unit 59,498.00 $59,498.00 (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 acity Enhancement Charge Grantland Trunk Sewer Service Area 1421 Units @ $0.00 per Unit 0.00 $0.00 3. WATER CONNECTION CHARGES (a)Time&Material Charges("Wet-Tie") 2004 0728 Estimate Number 4989 1 Water Job Number Estimated Deposit(FMC 14-111-0 $25,600.0011 1 $0.00 (63) (0) Deposit paid with Early Construction Agreement (b1)Service Connection Charges 127 1"Meters to existing services @ $330.00 each 41 910.00 $0.00 1 $41,910.00 1-112"Meters to existing services @ I $455.00 each 4 095.00 $0,001 1 $4,095.00 EXHIBIT B v 11/01/01 Printed 06/14/05 8:43:52 AM Page 2 of 4 c r. EXHIBIT B Subdivision Agreement for T- 5141 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED (162)Landscape Service Connection Charges 2 2" Meters to existing services @ $530.00 each 1,060.00 $1,060.00 01-112"Services&Meters @ $1,825.00 each 1 825.00 $1,825.00 (c)Frontage Charge Frontage:IN.Polk Avenue 420 LF Frontage:IN.Veterans Boulevard 705 LF Sub-Total Lineal Feet(full rate) 1,125 LF 1,125 LF; sub-total Frontage Charge(full rate) @ $6.50 per LF $7,312.50 Sub-Total Frontage Charge $7,312.50 Less estimated Frontage Charge Credits Frontage Charge 7, 2.50 $470.45 ` $6,842.05 (d Transmission Grid Main Charge A UGM Reimbursement Area 36.0600 Gross Acres @ $643.00 per Gr Acre $23,186.58 Less Estimated TGM Construction Credits $69,688.00 Transmission Grid Main Charge 0.00 $0.3-01. Paid w(Credits (e)Transmission Grid Main Bond Debt Service Charge 36.0600 Gross Acres _ @ $243.00 per Gr Acre $8,762.58 Less Estimated TGM Bond Debt Service Charge Credits $0.00 Transmission Grid Main Bond Debt Service Charge 8,762.58 $563.74 ` $8,198.84 ( UGM Water Supply Fee 201-S Supply Well Service Area 1421 Living Units(residential) @ $407.00 per Unit $57,794.00 Less Estimated UGM Water Supply Fee Construction Credits UGM Water Supply Fee $57 794.00 $57,794.00 ( )Well HeadTreatment Fee 20 11 Well Head Treatment Service Area 1421 Living Units(residential) @ $0.00 per Unit (hj Recharge Fee 201 Recharge Service Area 142 Living Units(residential) @ $0.00 per Unit (i)1994 Bond Debt Service Fee 201 1994 Bond Debt Service Fee Service Area 142 Living Units(residential) @ $0.00 per Unit 4. URBAN GROWTH MANAGEMENT(UGM)FEES&CONSTRUCTION CREDITS (a)UGM FIRE STATION FEE 14 Fire Station Service Area 36.0600 Gross Acres @ $547.00 per Gr Acre $19 724.82 $1,268.991' $18,455.83 (b UG�BORHOOD PARK FEE 5 Neighborhood Park Service Area 36.0600 Gross Acres @ $2,459.00 per Gr Acre $88,671.54 $5,704.63 ' $82,966.91 EXHIBIT B 01101/01 Printed 06114/05 8:43:52 AM Page 3 of 4 r+' v EXHIBIT B Subdivision Agreement for T- 5141 NET AMOUNT AMOUNT EXTENSION DUE DEFERRED (c)UGM MAJOR STREET CHARGE C/D-2-1 Major Street Zone 35.5351 Adjusted Gross Acres @ $2;798.00 per AG Ac $99,427.21 Less Estimated Major Street Charge Construction Credits $139,529.00 Major Street Charge 0.00 $0.00 ` Paid w/Credits (d)UGM MAJOR 2 STREET BRIDGE CHARGE CID-2 Major Street Bridge Zone 35.5351 Adjusted Gross Acres @ $94.00 per AG Ac $3,340.30 Less Estimated Major Street Bridge Charge Construction Credits $0.00 Major Street Bridge Charge 3,340. 0 $214.90 - $3,125.40 (e UGM GRADE SEPARATION CHARGE Grade Separation Service Area 35.5351 Adjusted Gross Acres @ $0.00 per AG Ac na ( UGM TRUNK SEWER FEE Trunk Sewer Service Area 35.5351 Adjusted Gross Acres @ $0.00 per AG Ac na ( OVERLAY SEWER SERVICE AREA Millbrook Overlay Service Area 35.5351 Adjusted Gross Acres @ $0.00 per AG Ac na 5. NON-URBAN GROWTH MANAGEMENT(UGM)IMPACT FEES&CONSTRUCTION CREDITS (a TRAFFIC SIGNAL CHARGE 142 Living Units(residential) @ $414.69 per Unit $58,885.98 Less Estimated Traffic Signal Charge Construction Credits $7,500.00 Traffic Signal Charge 51,385.98 $2,171.15 ' $49,214.83 Total Impact Fees&Charges $583,748.52 $321,306.81 $236,841.71 Note: EXTENSION total includes net results of construction credits SUMMARY TOTAL(A) MISCELLANEOUS FEES&CHARGES $610,152.62 TOTAL(B) IMPACT FEES&CHARGES $321,306.81 $236,841.71 TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $931,459.43 EXHIBIT B v11101/01 Printed 06/14105 8:43:52 AM Page 4 of 4 Bond Number: 024020641 Premium: , 17,900.00 Executed in Duplicate FAITHFUL PERFORMANCE BOND (SubdiviS)ion Agreement) WHEREAS, the City Council of the City of Fresno, State of California, and Lenuar Fresno, Inc. (herein designated as "principal") have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated AP and identified as project Street_, Sewer, Water, Storm Drain - 5141 Polk/Herndon, is hereby referred to and made a part hereof; and, Ave. WHEREAS, said principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement. NOW, THEREFORE, we, the principal and Liberty Mutual Insurance * , as surety, are held and firmly bound unto the City of Fresno, (hereinafter called "City"), in the penal sutra Of One Million Seven Hundred Ninety Thousand and No/100-------------------- ------------------ dollars ($ 1,790,000.00 ) lawful money of the United States, for the payment of which stun well and truly be made, we bind ourselves, our heirs, successors, executors and administrators,jointly and severally, firmly by these presents. The condition of this obligation is such that if the above bounded principal, his or it's heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attomey's fees,incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgement rendered. The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the * Company , terms of the agreement or to the work or to the specifications, Faithful Performance Bonet (Subdivision Agreement) Page 2 In witness whereof, this instrument has been duly executed by the principal and surety above named, on June 9th , 2G 05 LENNAR FRESNO, INC. a California corporation By: '�� David Evans, Vi President By: Dee Baker, Assistant Principal Address of Surety 505-.S.. Main Street, Suite 830 Liberty Mutual Insurance Company Orange, CA 92868 By:_ Rhonda C. Abel, Attorney-In-Fact Surety Acknowledgement by attorney-in-fact must be attached. BONDFQRM.DOC Revised 12/30/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of Orange On June 15, 2005 before me, Dina Printy, Notary Public, personally appeared David Evans and Dee Baker, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. S DINA PRINIY Commission# 1453610 f a.:' i ,:x Notary Public -California \� d, grange County My Comm.Expires Nov 28,2007 OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulentreattachment of this form. CAPACITY CLAIMED BY SIGNER SIGNER IS REPRESENTING: David Evans -Vice President Lennar Fresno, Inc. Dee Baker- Assistant. Secretary Lennar Fresno, Inc. DESCRIPTON OF ATTACHED DOCUMENT Type of Document: Surety Bond No. 024020641 Number of Pages: Two (2) Date of Document: June 9, 2005 Signers (other than those named above):Rhonda C. Abel CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of California County of Orange On June 9 2005 before me, Rosa Estela Rivas,Notary Public DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC" personally appeared Rhonda C.Abel NAME(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(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. ROSA ESTELA RIVAS A' COMM.# 1447661 ::E r' iei NO?F,RY PUBLIC CALIFORNIA o WITNESS m hand and official seal. ORANGE COUNTY ro y ivly comm,expires Oct.28,2007 SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable.to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) LIMITED H GENERAL ® ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR NUMBER OF PAGES ❑ OTHER: SIGNER IS REPRESENTING: DATE OF DOCUMENT NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE S-4067/GEEF 2/98 ©1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Bond Number: 024020641 Premium: Included in Performance gond Ei acuted in Duplieate SUBDIVIDER'S PAYMENT BUND (Subdivision Agreement) WHEREAS, the City Council of the City of Fresno, State of California, and Lennar Fresuo, Iur— (hereinafter designated as "principal") have entered into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, dated. 1 , _ _ and identified as project Street,_ Sewer, Water., Storm Drain - o ern on ve. is hereby referred to and made a part hereof, and, WHEREAS, under the terms of said agreement, principal is required before entering upon the performance of the work, to file a good and sufficient payment gond with the City of Fresno to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California. NOW, THEREFORE, said principal and the undersigned as corporate surety, are held firmly bound unto the City of Fresno and all contractors, subcontractors, laborers, material men and other persons employed in the performance of the aforesaid agreement and referred to in the aforesaid Code of Civil Procedure in the sum of Nine Hundred Forty TWO Thousand and No/100=--------------------------------- dollars ($ 942,000.00-------- , for materials furnished or labor thereon of any kind, or for amounts due the Unemployment Insurance Act with respect to such work or labor, that said surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon, this bond, will pay, in addition to the face amount thereof, costs and reasonable attorney's fees, incurred by City in successfully enforcing such obligation, to be awarded and Fixed by the court, and to be taxed as costs and to be included in the judgement therein rendered. . It is.hereby expressly stipulated and agreed that this bond shall inure. to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in,full force and effect. The surety hereby stipulates and agrees that no change, extension of time; alteration or addition to the terms of said agreement or the specifications'accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive,notice of any such change, extension, alteration or addition. CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of Orange On June 15, 2005 before me, Dina Printy, Notary Public, personally appeared David Evans and Dee Baker, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. DINA PRINT Commission# 1453610 a - Notary Public -California Orange County My Comm.Expires Nov 28,2007 OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER SIGNER IS REPRESENTING: David Evans Vice President Lennar Fresno, Inc. Dee Baker- Assistant. Secretary Lennar Fresno, Inc. DESCRIPTON OF ATTACHED DOCUMENT Type of Document: Surety Bond No. 024020641 Number of Pages: Three(3) Date of Document: June 9, 2005 Signers(other than those named above):Rhonda C. Abel CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of California County of Orange On June 9 2005 before me, Rosa Estela Rivas,Notary Public , DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC' personally appeared Rhonda C. Abel NAME(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(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 r behalf of which the person(s) acted, executed the instrument. ROSA ESTELA RIVAS P oCOMM.# 1447661 NOTARY PUBLIC CALIFORNIA o ORANGE COUNTY N WITNESS my hand and official seal. @�M'y comm,expires Oct.28,2007,I1 SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) H LIMITED GENERAL ® ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR NUMBER OF PAGES ❑ OTHER: SIGNER IS REPRESENTING: DATE OF DOCUMENT NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S).OTHER THAN NAMED ABOVE S-40671GEEF 2198 ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 . .,THIS POWER OF ATTORNEY IS NOT VALID_UNLESS IT IS PRINTED ON RED BACKGROUND. .::.:.7h is w?ower of Attorney limits.the acts'..Tthose named':herein,and they have:no authority to.;bind the:Compa»y except in the manner:.arld to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY .- -;:BOSTON,-MASSACHUSETTS.: POWER OF ATTORNEY KNOW-ALL PERSONS. BY THESE PRESENTS That Liberty Mutual Insurance Company (the: 0ornpany�) a:Massachusetts stock insurance company,pursuant to and by authority of the By law.and Authorization hereinafter set forth,does hereby name,.constitute:and appoint = RHONDA C.ABEL; NANET I MARIELLA,MY R' S,.TAMES A SCHALLER,JANE.KEPNERi MICHAEL.D PARIZINO,' JERI APODACA,:,PATRICIA H:BREBNE' LEIGH MCDON66',ALEXISaH.'BR AN,RACHELLE RHEAULT;ALL OF :CITY OF IRVINE,:STATE OF CALIFORNIA .r, . each individually if there be:mote titan one named its true.and lawful attorrtw y ui-fact to make executes'seal,acknowledge and deliver for and on its behalf.as"surety and'as its:actand deed;anyy and all undenakin•s,bonds;cecQ nizances::iirid other.aurety obhgations m the penal* not.ezceeding... ONE HUNDRED SEVENTY-FIVE:MILLION:AND 00/1:00"*�*"***""* DOLLARS<($ 175;000,000.00'**"* )each,:.and the execution of such undertakings, bonds:recognizances and other surety:obligations m pursuance of these_ presents, shall;be as binding.upon-the- Company as if they had been duly signed:by the presiden4 and attested by.the secretary ofthe Company in their own.proper persons That this power is made,and executed pur&uant to.and by authority of the loylgwingBy lavi+and AuthonzaUoq, AflTICLE,XI11=:Execution of Contra cts:.:Section.5.Surety Bonds and Undertakings.. W. Any officer of.Elia Company:authorized:for.that purpose:tri writing by the°chairman or'the president and, iUblect'to such"-Iimitai!6,' aq tha ' chairriian or:the president may prescribe;shall`:appoinf such attorneys in-fact,as,mayba necessary to act in,:behalf;of the Company:to make to execute seal,..acknowledgo and deliver as .surety any and.all. ndertakings bonds; recognizances and othecsurety obligations: Such." �: 'vi attomeys in-fact subject to the limitations;set forth in:their respective powers of.att6mey shall have full power to:bind the company-by their.-1 Q signature and execution of any:such instruments and toattach thereto the sealof tfie Company When so executed such instruments:shall be d as binding as if Signed 6y the.president and attested by.the secretary .Q= w: 3 d' Sy the followmgtnstriirrjentthe.chairman or the president has authorized the officer or other offiaal nametl therein to appoint attorneys m=fact Q e Pursuant to Article XIII, Section 5 of the B Laws,"Garnet W Elliott Assistant.Secreta of Liba Mutual Insurance Com an is',hereb C Y ry:. nY P Y Y : 1° authorized to appoint such attorneys-in-fact as may be necessary to act in,behalf.:of the company_to.make,:execufe;,seat acknowledge and to a O:: delivgr as suretyany:and all undertakings bonds;recognizances'and other:surety`obligations e- L Of a fes- �1,y Thaf the By law.and the Authonzation set fiorth above are trite copies thereof.and are.aiow:in full force and effect: ;:`,; >.N; .19-WITNESS.:.WHERE0It this Power of Attomey,,has been subscribed by!an authon2a officer or-official of:the Company and tfie corporate:•seal of :e Q Liberty Mutual lnsurance.com an has been affixed theretp in PJ mouth.Meetm Penns vania this "`22nd .iia of Janu-&y �. P .Y y 9 YI Y p.. 2004 Q M: :.;.... • p ef_; A) . LIBERTSf.'MUTU7IL INSURANCE COMPANY o - 3= 4,0: �. 5 Garnet W..Elliott AssistantSeeretary iy oo_ cOMMONINEALTH;OF PENNSYLVANIA ss - -.t ViAn COUNTY OF:MONTGOMERY lG : Qom. r*�: On ahls' 22nd :'.day of January 2004 before me a.:Notary Public,personally came Garnet 1N:.Elliott"to me known and acknowletlged d" Q c} that he:is.an Assistant.Secretary of liberty Mutual Insurance;Company;that he:knows alio seal of said corporation;and that he executed the above- Power of Attorne-y and affixed the corporate seal of.LibertyMutual InsuranceCompany thereto with the authority and at direction of said corporation O co -IN TESTIMONY WH 4 unto subscribed my name and affixed my notarial seal at Plymouth Mettkng Pennsyl4arna on the day and year; _ . v first a04 bove written 4. �lo�.. �� `"00 to c w o y/ E oo. :. L• Ca S Tess P Ikxsry Pim /Gfd! M. .. Q OF: _' Psgwrro >c+P.;iion ! g`. C z'V My c`r�cnaabr F�Plr+i Mer.Qd� Y - Q 0.: w„;�, ��, ler sa Fast211a,Notary Pubjic y,- CERTIFICATE,, r. the undersigned Assistant ecretary of:Liberty Mutual Insurance:Company do hereby certify that the original power:of attorney ofwhich the foregoing Is-a full,true and correct copy,is in full force aril effect on tl�a dat8 of this certificate;and l:do further:eertr that the:officer:or official who executed the h! ... rebid.power:of attorney is an Assistant Secretary specialty authorized kfy thet chairman or the::president to appoint attorneys-in-fact as.:provided in Article XIII,:Section.5-of the By-laws of Libertylulutual.Lnsuranee:Company:" This certificate and the above"power of attorney may be signed by facsimile or mechanically reproduced.signatures under and by authority.of the.- following vote of the board of:directors of Liberty:Mutual.Insurance Company at a meeting duly called.and held on:the 12th.day'of March,1980 VOTED that:the facsimile.or:mechanically reproduced signature of any assistant secretary.of.;the.comp any,:wherever appearing>upon a- certified copy of any power-of atfome issued`.b the com an tin:connectionwitfi Sure bonds;-shall be valitl and bindin u on,the"corn an y. Y P .Y ty g P P Y with the same force and. effect as though manually affixed. - "lN TESTIMONY WHEREOF=1 have hereunto subscrlbed my name.and affized.the corporate seal of the said company,this day of Tune 20'05 - 5 9th ��a ml3 --David_ ._.... - M.Carey,AssWcgit,Segretary e Liberty Mutual Surety Bond Number 024020641 NOTICE FROM SURETY REQUIRED BY TERRORISM RISK INSURANCE ACT OF 2002 In accordance with the Terrorism Risk Insurance Act of 2002 (referred to hereinafter, as the "Act'), this disclosure notice is provided for surety bonds on which one or more of the following companies is the issuing surety: Liberty Mutual Insurance Company; Liberty Mutual Fire. Insurance Company; LM Insurance Corporation; The .First Liberty Insurance Corporation; Liberty. Insurance Corporation; Employers Insurance Company of Wausau (formerly "EMPLOYERS INSURANCE OF WAUSAU A Mutual Company"); Peerless Insurance Company; and any other company that is a part of or added to the Liberty Mutual Group for which surety business is underwritten by Liberty Mutual Surety(referred to collectively hereinafter as the "Issuing Sureties"). NOTICE FORMS PART OF BOND This notice forms part of surety bonds issued by any one or more of the Issuing Sureties. DISCLOSURE OF PREMIUM The premium attributable to any bond.coverage for "acts of terrorism" as defined in Section 102(1) of the Act is Zero Dollars ($0.00). DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will reimburse the Issuing Sureties for ninety percent (90%)of any covered losses from terrorist acts certified under the Act exceeding the applicable surety deductible. LMIC-6539 11/15/04 W Subdivider's Payment Bond (Subdivision Agreement) Page 2 In witness whereof, this instrument has been duly executed by the principal and surety above named, on June 9th LLNNAR FRESNO, INC. a California corporation By: l David Evans, Vic President By: Dee Baker, Assistant Secretary Principal Address of Surety 505 S. *Main Streket, Suite 830 Liberty Mutual Insurance Company___ Orange, CA ..92868 By. By_ Rhonda C. Abel, Attorney-In-Fact Surety Acknowledgement by attorney-in-fact must be attached. BON'DFORM.DOG Revised 12/30/02 TOTAL P.05 THIRD PARTY CERTIFICATE NOT SUBJECT TO CHECK .O m 0-O D n Z N Com- N C m r y x x C O m fD .. z ➢ C x C MMM _ 9 W N m ➢ m Dy037 O O y m y0 Z m2p DODO Omw y W yW m< . 020-Imy' mDr� 0my.00m =TSO V z F•( r m D C l<mm y➢m y W m:rtl a ZN m0 Z'J .. .. y W mC➢0C �ODO O W T m m0=� ,C, Z m O Z ZCSdf-m b Zlny p p T rmynryiy - �n �q n H p .... S N ,.y m m 0 0 m C yw=0 r O E-y Z m C r m 0 y m Z y x m O x m y 2 Z Q xcam O O n- n Z m 2A,W S Dye -i m :ti'.• .•:••• .. y<m O<O C3'.>(� Zx f"T .. .�. . r>fn�mm Toy oo• �i zc�m� xco •yy G yz�, mxn sy O H a�Omm c�Om Dom zv f-ri o ti m . y0 ZOO O x m .. C7 O C 9 D Z m N W 5.< ' Z yyOZ 0DZ Om T Z m Z p W 0 m m W <O m y y 4Z m 200 y SS -:D O m y 2 m m- T pm ymym 2 yT D M 0N• M O m D m N 0 m Q n <.� r r M Z {to a m 0 N .. ': .. - 70 OZ m ✓`I OZ :•.: .: is.'.,;.'.. •' . - '.'.: . CD c mAC 00 n y O iZj DS�' r m W O X J] a yxo Ul m r O m . .• .. z=c� D W O \ O - N .. _. .. a O O Cn m m m � O x0m a 7 O fyn Pn THIRD PARTY n -• •-• � C3 O 3 m. v ' r 00 o r CD aILI C� Wru CD _ g 03 [ 3sj 71 _ .o O o a11 .DevLATjc ru �o W xi LID, a tr1 N r ti co ru CD z Wim:. Ln c ` . oR 0 m m n� Ln * m Z r * N� � .. ru * D » Z =m U3 * o' O .1. �. n a� w EA N. fit Qo O 'o N 0 ¢ b NY 00 w x a00 00 m: • rn ^!' o cc :• . CA w o : N C n t~A Q � � o• C ru • i � O `�Y `ate: C n d � � � '� O .. n A. � y, eD 10 N N ru eo W N^ a ru _ ru ` m c D 1-4 ITI 0-3 Z. g m:. ui �' Z 03 mao , U-1 Z ru y p Cz7 Z �rn 0 r w mD fA . EA o *'_ WtA A rr 4.1 1 e w o W atn c' Pi •_ tea :A y PZ821UOI City of Fresno O 7/01/04 Payment Due Selection 14 : 19:20 Project nbr/desc 04 00001004 FTM FINAL TRACT NO, 5141 Project type . . . FINAL TRACT MAP Select fees due, press Enter.. 1=Select entire amount Amount Opt to apply Bal Due Fee Description Trans amt 250 .00 250 .00 PW SEWER PLAN CHECK DEPOSIT 250.00 250 .00 250. 00 PW WATER PLAN CHECK DEPOSIT 250 .00 500.00 500 .00 PW STREET PLAN CHECK DEPOSIT 500 .00 176. 00 176.00 LANDSCAPE PLAN REVIEW 176. 00 173_41.00 17341.00 LD TRACT MAP FINAL 17341.00 43 . 00 43 .00 TRACT MAP FIRE PREV FINAL 43 .00 notal 18560.00 F12=Cancel CITY OF FRESNO *** CUSTOMER RECEIPT x** Oper: TRI5HAH Type: DV Drawer: 1 Date: 7/15/04 01 Receipt no: 36529 Description Quantity Amount 204 1004 .PZ PLANNING & ZONING 1.00 lIa560.C1U LENNAR FRESNO INC 7690 N PALM & NO 101 FRESNO 93711 YAMAAE & HORN ENGINEERING INC 1300 E SHAW AVE STE 176 FRESNO 93710 244-3123 Tender detail CK CHECK 10704 $17793.00 CK CHECK, 11654 $767.00 Total tendered $18560.00 Total.payment 518560.00 Trans date: 7/15/04 Time: 14:05:03 PZ821U01 City of Fresno 7/01/04 Payment Due Selection 14.: 19:20 Project nbr/desc 04 00001004 FTM FINAL TRACT NO. 5141 Project type . . . FINAL TRACT MAP Select fees due, press Enter. 1=8elect entire amount Amount Opt to apply Bal Due Fee Description Trans amt _ 250. 00 250.00 PW SEWER PLAN CHECK DEPOSIT 250. 00 _ 2;;n-nn 250.00 PW WATER PLAN CHECK DEPOSIT 250 .00 500 . 00 500.00 PW STREET PLAN CHECK DEPOSIT 500.00 176. 00 176.00 LANDSCAPE PLAN REVIEW 176.00 17341. 00 17341.00 LD TRACT MAP FINAL 17341.00 43 . 00 43 .00 TRACT MAP FIRE PREV FINAL 43.00 Total 18560 .00 F3=Exit _ F5=Select all fees F12=Cancel t; LENNAR FRESNO, INC. 407.04 �• MANAGERS ACCOUNT ' 7690:NORTH PALM AVE., NO. 101 FRESNO;CA 93711 ` I6-66Itz24 CA PAYTOTHE L�r T br;. r /c� a J. ORDER OF �I3 � l v OLLARS Banko#America , ,;1 ;y' IDs Angeles,Califo"a• e�� � .' - �, /�. OR /`. \ u'D li( ti'IJ"=w ll■ �:`� 2:2000:66.1 23` „r L.3:Li,■ YAMABE.&' HORN. ENGINEERING, INC. I'i64 13.00 EAST.SHAW;AVENUE,-SUITE 176 0o 75 FRESNO,'CA 93710 (55.9)244-3123 90-3,772/1211 PAY Seven hundred sixty-seven and 00h00 dollars 'DATE A M,CUNT TO THE OROER.OF 4; f 7/T/Q4 . S767.00` CITY OFFRESNO PO"6x-45017. . :e. "FRESNO CA 93-718-5017-1 • 1 a- '- AUTHO ED^SJGNATURE' 1i■0 1IF= 51,11■ 1: 1 211377 261: 00 1 049116ii■