HomeMy WebLinkAboutT-5538 - Agreement/Covenant - Subdivision Agreement - ROW Acquisition Addendum - 5/7/2018 llll Ill I IIII II II Illl I II I IIII II IIIII I IIII I!II!II II
RECORDING REQUESTED BY FRESNO County Recorder
AND WHEN RECORDED MAIL TO: Paul Dittos, C,P,A,
City Clerk DOC— 2018-0058253
City of Fresno Acct 8017-First American Title - Fresno SPL
2600 Fresno Street Monday, MAY 07, 2018 08:00:00
Fresno, CA 93721-3603 Ttl Pd $0,00 Rcpt # 0004991517
ARG/R3/1-34
NO FEE-Government Code 6103
City of
PUBLIC WORKS DEPARTMENT
2600 Fresno Street
Fresno, California 93721-3616
(559) 621-8650
P.W. File No. 11410
SUBDIVISION AGREEMENT
FINAL MAP OF TRACT NO. 5538
including ADDENDUM TO SUBDIVISION AGREEMENT FOR
RIGHTS OF WAY ACQUISITION
Subdivision Agreement
Final Map of Tract No. 5538
Page 2
THIS AGREEMENT is made this day of o/P62,/L 20/, by and
between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City,"
and,WESTERN PACIFIC HOUSING,INC,a Delaware Corporation, 1341 Horton Circle,Arlington,
TX 76011,hereinafter designated and called the"Subdivider,"without regard for number or gender.
RECITALS
A. The Subdivider has filed with the City,a Final Map which proposes the subdivision of
land owned by Subdivider, situated in the City of Fresno, County of Fresno, State of California,
dividing the real property more particularly described as follows:
Lots 1 through 93, inclusive and Outlots A, B and C of the Final Map of Tract
No. 5538 according to the map thereof recorded on Y14-7, 2Dl�?
in Volume 9Z of Plats at Page(s) 93 �� , Fresno County Records.
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 15-3806 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. 5538 dated
May 17,2006 issued by the City and any amendments thereto(hereinafter referred to as"Conditions
of Approval',)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.
Subdivision Agreement
Final Map of Tract No. 5538
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 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 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 bythe City Engineer. The Subdividershall notifythe Public
Works Department - Construction Management Division of the planting schedules and to
schedule inspections.
C. 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 Chapter 5, Part 9 of Title 24 of California Code of
regulations 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 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.
d. 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.
e. 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
Subdivision Agreement
Final Map of Tract No. 5538
Page 4
planting)may be granted by the Public Works Directorwith 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 ("Improvements"), more specifically shown on the
referenced plans which are incorporated by reference and made a part of this Agreement, shall be
done in accordance with the construction standards contained in the most current 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. The construction cost estimates, and corresponding Improvement and warranty security
requirements for these Improvements are set forth in Exhibit"A"which is incorporated by reference.
3. The 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 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. 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 serviced
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
Subdivision Agreement
Final Map of Tract No. 5538
Page 5
applicable provisions of Chapter 6,Article 5 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 6,Article 3 of the Fresno Municipal Code and all applicable
charges shall apply.
e. All storm water runoff and other surface drainage shall be discharged in
accordance with the California Building Code as may be amended and City approval of a
storm drainage and grading plan obtained by the Subdivider.
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 drainage basins constructed or enlarged to serve this
subdivision 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. The
Subdivider shall maintain these temporary storm drainage basins so as not to create a
nuisance as defined by Section 10-605 of the Fresno Municipal Code or California Law until
such time as the City Engineer provides official notice to the Subdivider, its successors or
assignees, that these temporary storm drainage basins are no longer required. This term
shall survive the termination or expiration of this Agreement.
h. "Wet-Ties" (i.e., the physical connection of newly constructed water system
facilities to the existing water system facilities already in service) shall be in accordance with
Chapter 6, Article 5 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
S
Subdivision Agreement
Final Map of Tract No. 5538
Page 6
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
Development and Resource Management Department Director, except that for
improvements to be maintained by a City Community Facilities District ("CFD"), such
improvement plans shall be approved by the City Engineer.
j. Perform and construct all work shown on the following construction plans and
any amendments thereto, unless specifically omitted herein.
i. City Drawing Nos: 10-C-10967 through 10-C-10973 inclusive(sewer
and water), 15-C-15691 through 15-C-15701T inclusive (street and
landscaping), and 4-C-1229 (street lighting).
ii. Fresno Metropolitan Flood Control District Drawing Nos: AK-x-1
through AK-x-2 inclusive.
Install and complete all other street improvements required by Section 15-3804 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 Fresno Municipal Code 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 the amounts 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
6
Subdivision Agreement
Final Map of Tract No. 5538
Page 7
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.
m. With regard to fee credits including those referenced above and herein,
Subdivider may receive designated fee credits from the City as offsets toward a UGM or
development impact fee for construction of certain required infrastructure improvements
either as a part of this Agreement or at some future date. With regard to the amounts to be
credited as referenced above, Subdivider acknowledges and agrees any such fee credits
are provided contingent upon the City accepting required infrastructure improvements
completely installed by Subdivider. Until then, and notwithstanding any other provision,
Subdivider expressly agrees Subdivider has no right to any portion of any fee credit and the
Director of Public Works for the City, in the Director's sole discretion,may unilaterally amend
this Agreement effective upon mailed notice to Subdivider to adjust (including adding,
reducing or removing) credits at any time prior to acceptance of all required infrastructure
improvements by City. Upon adjustment; Subdivider shall pay in full any UGM or
development impact fees, due from modification of the fee credit, prior to approval of the
subdivision map or as may be deferred by a fee deferral covenant. If the subdivision map
has already been approved and there is no applicable fee deferral covenant, all such fees
shall be promptly paid by Subdivider. The City may enforce recovery of such fees in any
manner available at law or in equity, including but not limited to private foreclosure and sale
of the property in the manner provided in Section 2924 of the California Civil Code or
successor statute.
n. 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. 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
Subdivision Agreement
Final Map of Tract No. 5538
Page 8
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 Improvements. All of the 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 the event there are not any Public Works Standards for any of said
Improvements, it 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
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 shall
furnish to the City the following improvement securities in the amounts set forth in Exhibit A. Bonds
shall be by one or more duly authorized corporate sureties licensed to do business in California
subject to the approval of the City and on forms furnished or approved by the City, Certificates of
Subdivision Agreement
Final Map of Tract No. 5538
Page 9
Deposit that is made payable only to the City of Fresno in a form acceptable to the City Attorney's
office.
a. PERFORMANCE SECURITY. The total amount shall equal 100% of the
final Cost Estimate, as approved by the City Engineer, 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.
certificate of deposit that is made payable only to the City of Fresno ; and
ii. 5% of the final Cost Estimate shall be in cash or a certificate of
deposit that is made payable only to the City of Fresno.
b. PAYMENT SECURITY. The total amount shall equal 50%of the final Cost
Estimate, as approved by the City Engineer, 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 certificate of deposit that is made payable only to the City of Fresno .
C. Any and all other improvement security as required by Section 15-3806 of the
Fresno Municipal Code.
d. Subject to the requirements of Resolution No.2008-100 adopted by the City
Council on May 6, 2008, the Subdivider may request a one-time partial acceptance, for
maintenance only, of public improvements required by this agreement that the Subdivider
has constructed, to reduce the amount of the Performance Security required by this
Agreement. At the time of the City's partial acceptance,the City and Subdivider shall enter
into an amendment to this Agreement reducing the Performance Security to an amount
consistent with the requirements of Resolution No. 2008-100 required by this Agreement.
The City shall not release any of the original Performance Security or execute the
Amendment to this Agreement until such time as the Subdivider has provided the
Performance Security required by the Amendment.
6. Any damage to the work and improvements constructed pursuant to this agreement
that occurs after installation shall be made good to the satisfaction of the City Engineer by the
Subdivider before any securities are released or the final acceptance of the completed work.
7. The Subdivider shall remedy any defective work or labor or any defective materials
Subdivision Agreement
Final Map of Tract No. 5538
Page 10
relating to the Improvements and pay for any damage to other work or improvements resulting
therefrom which shall occur within a period of one (1) year from the date of acceptance of the
Improvements.
8. To insure the Subdivider complies with its obligations set forth in paragraph 7, on
acceptance of the required work by the City Engineer, a warranty security shall be furnished to or
existing securities retained by the City, in the minimum amount identified in said Exhibit A, as a
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 15-3806
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 released, less any amount required to be used for fulfillment
of the warranty, one (1) year after final acceptance of the subdivision Improvements.
9. 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.
10. Indemnification.
a. To the furthest extent allowed by law, Subdivider shall indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract,tort or strict liability, including but not limited to personal injury,death at
any time and property damage) incurred by City, Subdivider or any other person, and from
any and all claims,demands and actions in law or equity(including attorney's fees, litigation
and legal expenses incurred by City or held to be the liability of City, including plaintiffs or
petitioner's attorney's fees if awarded, in connection with City's defense of its actions in any
proceeding), arising or alleged to.have arisen directly or indirectly out of performance or in
any way connected with: (i) the making of this Agreement; (ii) the performance of this
Agreement; (iii)the performance or installation of the work or improvements by Subdivider
and Subdivider's employees, officers, agents, contractors or subcontractors;(iv)the design,
installation, operation, removal or maintenance of the work and improvements; or(v)City's
granting, issuing or approving use of this Agreement.
/Q
Subdivision Agreement
Final Map of Tract No. 5538
Page 11
b. Subdivider's obligations under the preceding sentence shall apply regardless
of whether City or any of its officers,.officials, employees or agents are negligent, but shall
not apply to any loss, liability,fines, penalties,forfeitures,costs or damages caused solely by
the gross negligence, or caused by the willful misconduct, of City or any of its officers,
officials, employees, agents or authorized volunteers.
c. If Subdivider should subcontract all or any portion of the work to be performed
under.this Agreement, Subdivider shall require each subcontractor to indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of paragraphs "a" and "b" of this Section.
Notwithstanding the preceding sentence, any subcontractor who is a"design professional"
as defined in Section 2782.8 of the California Civil Code shall, in lieu of indemnity
requirements set forth in paragraphs "a" and "b" of this Section, be required to indemnify,
hold harmless and defend City and each of its officers, officials, employees, agents and
volunteers to the furthest extent allowed by law, from any and all loss, liability, fines,
penalties,forfeitures,costs and damages(whether in contract,tort or strict liability,including
but not limited to personal injury,death at any time and property damage),and from any and
all claims, demands and actions in law or equity(including reasonable attorney's fees and
litigation expenses)that arise out of, pertain to, or relate to the negligence, recklessness or
willful misconduct of the design professional, its principals, officers, employees, agents or
volunteers in the performance of this Agreement.
d. 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 Subdivider at all times prior to final acceptance by City of the completed
street and other improvements thereon and therein. .
e. This Section shall survive termination or expiration of this Agreement.
11. Insurance. Throughout the life of this Agreement, Subdivider shall pay for and
maintain in full force and effect all policies of insurance described in this Section with an insurance
company(ies) either(i) admitted by the California Insurance Commissioner to do business in the
State of California and rated not less than"A-VII"in Best's Insurance Rating Guide,or(ii)authorized
by City's Risk Manager. The following policies of insurance are required:
Subdivision Agreement
Final Map of Tract No. 5538
Page 12
a. COMMERCIAL GENERAL LIABILITY insurance, which shall be at least as
broad as the most current version of Insurance Services Office(ISO)Commercial General
Liability Coverage Form CG 00 01 and shall include insurance for bodily injury, property
damage, and personal and advertising injury with coverage for premises and operations
(including the use of owned and non-owned equipment), products and completed
operations,contractual liability(including indemnity obligations under this Agreement),with
limits of liability of not less than $5,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000
aggregate for products and completed operations, and $10,000,000 general aggregate.
b. COMMERCIAL AUTOMOBILE LIABILITY insurance,which shall be at least
as broad as the most current version of Insurance Services Office (ISO) Business Auto
Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code 1-Any Auto), with combined single limits of
liability of not less than $1,000,000 per accident for bodily injury and property damage.
C. WORKERS' COMPENSATION insurance as required under the California
Labor Code.
d. EMPLOYERS' LIABILITY with minimum limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each
employee.
Subdivider shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and Subdivider shall also be responsible for payment of any self-insured
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted 30
calendar day written notice in favor of City of policy cancellation of coverage,except for the Workers'
Compensation policy which shall provide a 10 calendar day written notice of such cancellation of
coverage. In the event any policies are due to expire during the term of this Agreement,
Subdivider shall provide a new certificate evidencing renewal of such policy(ies) not less
than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance
by the insurer, broker,or agent of a notice of cancellation in coverage, Subdivider shall file with City
a new certificate and all applicable endorsements for such policy(ies).
The General Liability and Automobile Liability insurance policies shall be written on an
Subdivision Agreement
Final Map of Tract No. 5538
Page 13
occurrence form and shall name City, its officers,officials,agents,employees and volunteers as an
additional insured. Such policy(ies)of insurance shall be endorsed so Subdivider's insurance shall
be primary and no contribution shall be required of City. In the event claims-made forms are used
for any Professional Liability coverage,either(i)the policy(ies)shall be endorsed to provide not less
than a five(5)year discovery period, or(ii)the coverage shall be maintained for a minimum of five
(5)years following the termination of this Agreement and the requirements of this Section relating to
such coverage shall survive termination or expiration of this Agreement. Any Workers'
Compensation insurance policy shall contain a waiver of subrogation as to City,its officers,officials,
agents, employees and volunteers.
Subdivider shall have furnished City with the certificate(s) and applicable
endorsements for ALL required insurance prior to City's execution of the Agreement.
Subdivider shall furnish City with copies of the actual policies upon the request of City's Risk
Manager at any time during the life of the Agreement or any extension, and this requirement shall
survive termination or expiration of this Agreement.
The fact that insurance is obtained by Subdivider or his/her/its subcontractors shall not be
deemed to release or diminish the liability of Subdivider or hislherlits subcontractors including
without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify
City, its officers, officials, agents, employees and volunteers, shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by Subdivider or his/her/its
subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relieve
from liability nor limit the liability of Subdivider, its principals, officers, agents, employees, persons
under the supervision of Subdivider, vendors, suppliers, invitees, subcontractors, consultants or
anyone employed directly or indirectly by any of them.
If at any time during the life of the Agreement or any extension, Subdivider fails to maintain
the required insurance in full force and effect, the Director of Public Works for the City, or his/her
designee, may order that the Subdivider, or its contractors or subcontractors, immediately
�3
Subdivision Agreement
Final Map of Tract No. 5538
Page 14
discontinue any further work under this Agreement and take all necessary actions to secure the
work site to insure that public health and safety is protected. All payments due or that become due
to Subdivider shall be withheld until notice is received by City that the required insurance has been
restored to full force and effect and'that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City
to terminate this Agreement.
If Subdivider should subcontract all or any portion of the services to be performed under this
Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of
City, its officers,officials,employees,volunteers and agents in accordance with the terms of each of
the preceding paragraphs,except that the subcontractors'certificates and endorsements shall be on
file with Subdivider and City prior to the commencement of any work by the subcontractor.
12. The Subdivider and his'subcontractors shall pay for any materials, provisions, and
other supplies used in, upon, for, or about the performance of the Improvements 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.
13. Compaction and other materials testing performed for determination of compliance
with Public Works Standards shall conform to Section 2-11 of the City Standard Specifications,
entitled"Materials Acceptance Testing." Materials testing shall at all times remain under the review
of the City Engineer who may determine additional test procedures, and additional locations to be
tested. All materials testing for improvement work within the public easements and rights-of-way
shall be ordered and paid for by the Subdivider.
14. The Subdivider shall comply with Street,Plumbing,Building,Electrical,Zoning Codes
and any other codes or ordinances of the City.
15. 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
be placed in the position of making decisions that are the responsibility of the Subdivider. It shall
Subdivision Agreement
Final Map of Tract No. 5538
Page 15
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.
16. Whenever the Subdivider varies the period.during which work is carried on each day,
it 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 City Engineer will be
subject to rejection. The inspection of the Improvements shall not relieve the Subdivider of any
obligation 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 City Engineer or City Inspector and accepted.
17. 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 in strict compliance with all rules and regulations established by the San Joaquin Valley
Air Pollution Control Board. 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("Notice to Comply") with the provisions of this paragraph
forthwith.'If in the opinion of the City Engineer the Subdivider's failure to comply with the provisions
of this paragraph is having an immediate and significant impact on the public's health, safety and
welfare, the City Engineer may immediately issue a stop work order until the City receives
reasonable assurances that the Subdivider shall comply with the provisions of this paragraph
forthwith. Such notices and stop-work orders may be personally served upon the Subdivider or, if
�S
Subdivision Agreement
Final Map of Tract No. 5538
Page 16
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 notices and stop-work orders may be mailed
to the Subdivider at his address on file with the City Engineer. If the City Engineer has issued a
Notice to Comply and 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 it 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 therefore,the entire cost to City of
such sprinkling or treating. 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.
18. Concrete curbs and gutters, the sanitary sewer system and house connections,
together with water mains, gas mains, and their respective service connections, and all other
facilities required to be installed under ground shall be completed in the streets and alleys before
starting the street and alley surfacing.
19. 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.
20. 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.
21. In addition to the following Covenants Affecting Land Development:
a. Maintenance of Certain Public Improvements
/6
Subdivision Agreement
Final Map of Tract No. 5538
Page 17
b. Providing Special Solid Waste Disposal Services for Certain Lots
c. Deferring Certain Sewer Connection Charges, Water Connection Charges,
Urban Growth Management Fees, City-wide fees, and Development Fees
d. Acknowledging Right-to-Farm Law
e. Relinquishing Access Rights for Certain Lots
as referenced on the Final Map and this Agreement, Subdivider shall comply with all of the
Conditions of Approvals that it has not already fully complied with as of the date of the approval of
the Final Map and which are not otherwise set forth in this Agreement, including but not limited to,
any condition to convey to a specific party a fee interest or easement in any parcels, upon
Subdivider's completion of all required improvements to said parcels. Subdivider's compliance.with
such conditions shall be completed within a reasonable time, as determined by the City, after
receiving written notice from the City Engineer of the.outstanding condition or term with which the
Subdivider is required to comply.
22. In performing its obligations set forth in this Agreement,Subdivider shall comply with
all applicable laws, regulations,and rules of the governmental agencies having jurisdiction including,
without limitation, applicable federal and state labor standards and environmental laws and
regulations. Subdivider, not the City, is responsible for determining applicability of and compliance
with all local, state, and federal laws including,without limitation,the California Labor Code, Public
Contract Code, Public Resources Code, Health&Safety Code,Government Code,the City Charter,
and Fresno Municipal Code. The City makes no representations regarding the applicability of any
such laws to this Agreement, the project, or the parties' respective rights or obligations hereunder
including,without limitation, payment of prevailing wages,competitive bidding,subcontractor listing,
or other matters. City shall not be liable or responsible, in law or equity, to any person for
Subdivider's failure to comply with.any such laws,whether the City knew or should have known of
the need for Subdivider to comply, or whether the City failed to notify Subdivider of the need to
comply. The Subdivider is referred to the City's Department of Public Works, Construction
r7
Subdivision Agreement
Final Map of Tract No. 5538
Page 18
Management Division to obtain the current prevailing wage rates, to the extent said rates are
applicable to the construction of any of the Improvements.
23. If either party is required to commence any proceeding or legal action to enforce or
interpret any term or condition of this Agreement,the prevailing party in such proceeding or action
shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
For the purposes of this Agreement, "attorneys' fees" and "legal expenses" include, without
limitation, paralegals'fees and expenses,attorneys,consultants fees and expenses,expert witness
fees and expenses, and all other expenses incurred by the prevailing party's attorneys in the course
of the representation of the.prevailing party in anticipation of and/or during the course of litigation,
whether or not otherwise recoverable as"attorneys'fees"or as"costs"under California law,and the
same may be sought and awarded in accordance with California procedure as pertaining to an
award of contractual attorneys' fees.
24. The waiver by either parry of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a
different provision of this Agreement. No provisions of this Agreement may be waived unless in
writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be
deemed to be a waiver of any other provision herein.
25. The provisions of this Agreement are severable. The invalidity or unenforceability of
any one provision in this Agreement shall not affect the validity or enforceability of the other
provisions, which shall remain in full force and effect.
26. This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California, excluding, however, any conflict of laws rule which would
apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the
enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
I°
Subdivision Agreement
Final Map of Tract No. 5538
Page 19
27. Each parry acknowledges that they have read and fully understand the contents of
this Agreement. This Agreement represents the entire and integrated agreement between the
parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be modified only by
written instrument duly authorized and executed by both City and Subdivider.
( 1
Subdivision Agreement
Final Map of Tract No. 5538
Page 20
The parties have executed this Agreement on the day and year first above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
WESTERN PACIFIC HOUSING, INC.
Public Works Department A Delaware Corporation
Scott Mozier, P.E., Director
By: By:
An rew J. Benet ', P.E., Assistant Director P trick Dar II,
Vice President of Land
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:
a at an-Doidge
puty City Attorney
G (Attach Notary Acknowledgments)
Date: I
d,,C)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Tulare )
On March 8, 2018 before me, R. Hensley, Notary Public
(insert name and title of the officer)
personally appeared Patrick Darnell
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
NAM
H.HENSLEY
WITNESS my hand and official seal. Notary Public-California Z
a o Tulare County z
Z Commission*2172956 n
My Comm.Ex fres Nov 20.2020
Signature (Seal)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On April 9, 2018 before me, Cherisea Barnes, Deputy City Clerk, personally appeared, Andrew
J. Benelli, P.E., Assistant Director of Public Works of the City of Fresno, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true.and correct.
WITNESS my hand and official seal
YVONNE SPENCE, CMC _
City Clerk, City of Fresno ��a°F FREsy
v o
� e
n q�TED OCS..
By auivor
Deputy
EXHIBIT A Subdivision Agreement for Tract No. 5538
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $278,952
Well Construction Cost Estimate n/a
Sewer System Construction Cost Estimate $175,590
Storm Drain Construction Cost Estimate $70,570
Street Construction Cost Estimate $2,081,000
Final Cost Estimate(for Inspection Fee purposes) $2,606,11211
286 Landmarks, Monuments, Lot& Block Corners ($50/ea) $14,300
Sub-Total (for bonding purposes) $2,620,412
Construction Contingency(10%) $262,041
TOTAL COST ESTIMATE*
(for improvement securities purposes) $2,882,453 $2,882,000
*All amounts rounded to nearest$1000
B. IMPROVEMENT SECURITY REQUIREMENTS (due with subdivision agreement)
Performance Security (100%of Total Cost Estimate)
95% of amount shall be in the form of a bond by duly
authorized corporate sureties or certificate of deposit $2,738,000
5%of amount shall be in cash or a Certificate of
Deposit made payable to the City of Fresno. $144,000
Payment Security (50%of Total Cost Estimate)
100% of amount shall be in the form of a bond by duly
authorized corporate sureties or certificate of deposit $1,441,000
Faithful Performance Security to'Guarantee Completion of Plans
Street Plans $0
Utility Plans (Sewer.Water, Storm Water) $0
Street Light Plans $0
Landscaping/Irrigation/Walls $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 $11,900
Minimum amount $20,900
EXHIBIT A v4/28/00 Prepared By: Frank Date: 02/22/18 Print Date:02122/18 4:16:39 PM Page 1 of 1
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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. 5538 ("Final Map"); and,
WHEREAS, Vesting Tentative Map No. 5538 as approved by the City of Fresno
("Tentative Map") are 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 Development and Resource Management 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.
3 c�
Addendum to Subdivision Agreement
Tract No. 5538
Page 2
NOW THEREFORE ITIS 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 its 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.
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
31
Addendum to Subdivision Agreement
Tract No. 5538
Page 3
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.
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.
Addendum to Subdivision Agreement
Tract No. 5538
Page 4
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.
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
33
Addendum to Subdivision Agreement
Tract No. 5538
Page 5
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 APN: 511-011-08
511-011-09
511-011-10
511-011-11
511-011-12
511-011-13
511-011-14
511-011-15
511-011-16
511-011-17
511-012-01
511-012-06
511-012-07
511-012-08
511-012-09
AMOUNT TO BE DEPOSITED ITEM
$191,000 Value of Easements
$0 Appraisal
$15,000 Escrow and Title
$35,000 Staff time
$5,000 Attorney Review
$246,000 SUB-TOTAL
$49,000 Contingency (20% ±)
$295,000 TOTAL (rounded to nearest $1000)
3Y