HomeMy WebLinkAboutT-5374 - Agreement/Covenant - 4/25/2006 (2) t ,
WHEN RECORDED MAIL TO:
City Clerk
City of Fresno
2600 Fresno Street
Fresno, CA 93721-3603
04116/2116,21161061177
NO FEE-Government Code 6103
p City of
oLgz.- rn��.-..,,��=
z V PUBLIC WORKS DEPARTMENT
C:) 2600 Fresno Street
U Fresno, California 93721-3616
(559) 621-8650
P.W. File Nos. 10832 and 10833
SUBDIVISION AGREEMENT
FOR THE FINAL MAPS OF TRACT NOS. 5374 and 5313 INCLUDING
"ADDENDUM TO SUBDIVISION AGREEMENT" FOR
RIGHTS-OF-WAY ACQUISITION FOR THE FINAL MAP OF
TRACT NO. 5374
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 2
THIS AGREEMENT is made this 50- day of A�►�( , 20 ,
by and between the City of Fresno, a Municipal Corporation, hereinafter designated and called
the "City," and BEAZER HOMES HOLDINGS CORPORATION, a Delaware Corporation,
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. 5374 and Tract No. 5313 (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 Nos. 5374 and
5313 dated December 15, 2004 and November 17, 2004, respectively, issued by the City and any
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 3
amendments thereto(hereinafter referred to as"Conditions of Approval"and incorporated into this
agreement by this reference), hereinafter set forth in detail, within the time hereinafter mentioned,
in consideration of the acceptance of the offers of dedication 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 111,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
f
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
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 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.
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 5
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 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, or as directed by the City Engineer.
The construction and maintenance of such facilities shall also comply with the Statement
of Covenants Affecting Land Development for Temporary Storm Drainage Facilities for
Tract No. 5374 recorded as Document No. -,2061- n[Lf l Sd
on 12, Fresno County Records and incorporated into this
agreement by this reference.
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.
r ,
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 6
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
the City's Community Facilities District No.11 (CFD-11), such improvement plans shall be
approved by the City Engineer.
The Subdivider will satisfy Subdivider's maintenance obligation of such improvements by
annexing the Subdivision into CFD-11 at a later date by complying with the Agreement to
Advance Consideration of Tract Map No. 5313 recorded as Document No. 2t')OG,-61OR119l
on , Fresno County Records and incorporated into this
agreemenf by this reference.
The Subdivider will satisfy Subdivider's maintenance obligation of such improvements by
annexing the Subdivision into CFD-11 at a later date by complying with the Agreement to
Advance Consideration of Tract Map No. 5374 recorded as Document No.,2"-/1? ?
on Dpi J4 2oof., Fresno County Records and incorporated into this
agreement by this reference.
and shall maintain such improvements until such time as the City Engineer determines that
CFD-11 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.
j. Perform and construct all work shown on the following construction plans
and any amendments thereto :
i. City Drawing Nos: 15-C-12974 through 15-C-12993(street plans);
4-C-911 through 4-C-912 (street light plans): 10-C-9081 through 10-C-9093
(water and sewer plans); and
ii. Fresno Metropolitan Flood Control District Drawing Nos:BD-12-1
through BD-12-5.
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
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 7
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.
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.
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 8
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
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 (provided, however, this shall be 100% of the Final Cost Estimated if same or
actual cost exceeds $25,000) 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.
Subdivision Agreement MROW Addendum
Tract Nos. 5374 and 5313
Page 9
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.
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
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 10
person of any and all of the streets and improvements hereinbefore specified, shall be at the sole
and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the
completed street and other improvements thereon and therein.
9. The Subdivider shall remedy any defective work or labor or any defective materials
and pay for any damage to other work resulting therefrom which shall occur within a period of one
(1) year from the date of acceptance of the work.
10. The Subdivider and his subcontractors shall pay for any materials, provisions, and
other supplies used in, upon,for, or about the performance of the work contracted to be done, and
for any work or labor thereon of any kind,and for amounts due under the Unemployment Insurance
Act of the State of California,with respect to such work or labor,and shall file with the City pursuant
to Section 3800 of the Labor Code, a Certificate of Workers' Compensation and shall maintain a
valid policy of Workers' Compensation Insurance for the duration of the period of construction.
11. Initial soils compaction testing for public utility improvement work within the
right-of-way shall be ordered by and paid for by the City of Fresno. Public utility improvements
shall include street surface improvements, sanitary and storm sewers, City water facilities and
irrigation lines. All other compaction testing for private utility installations shall be paid for by the
Subdivider or his agent. Compaction testing performed for determination of compliance with Public
Works Standards shall at all times remain under the control and direction of the City Engineer who
shall determine locations and depths to be tested. Any compaction tests failing to meet the City's
requirements shall be reordered by the City and paid for by the Subdivider or his agent. Billing for
the private utility tests and any required retesting due to failures shall be made directly to the
Subdivider or his agent.
12. The Subdivider shall comply with Street, Plumbing, Building, Electrical, Zoning
Codes and any other codes of the City of Fresno.
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 11
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
obligations to fulfill the Agreement as prescribed. Defective work shall be made good, and
unsuitable materials may be rejected, notwithstanding the fact that such defective work and
unsuitable materials have been previously overlooked by the Engineer or Inspector and accepted.
15. Any damage to the sewer system, concrete work or street paving that occurs after
installation shall be made good to the satisfaction of the City Engineer by the Subdivider before
release of bond, or final acceptance of completed work.
16. Adequate dust control shall be maintained by the Subdivider on all streets within and
without the subdivision on which work is required to be done under this Agreement from the time
work is first commenced in the subdivision until the paving of the streets is completed. "Adequate
dust control' as used herein shall mean the sprinkling of the streets with water or the laying of an
approved dust palliative thereon with sufficient frequency to prevent the scattering of dust by wind
or the activity of vehicles and equipment onto any street area or private property adjacent to the
subdivision. Whenever in the opinion of the City Engineer adequate dust control is not being
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 12
maintained on any street or streets as required by this paragraph, the City Engineer shall give
notice to the Subdivider to comply with the provisions of this paragraph forthwith. Such notice may
be personally served upon the Subdivider or, if the Subdivider is not an individual, upon any person
who has signed this Agreement on behalf of the Subdivider or, at the election of the City Engineer,
such notice may be mailed to the Subdivider at his address on file with the City Engineer. If, within
twenty-four (24) hours after such personal service of such notice or within forty-eight (48) hours
after the mailing thereof as herein provided, the Subdivider shall not have commenced to maintain
adequate dust control or shall at any time thereafter fail to maintain adequate dust control,the City
Engineer may, without further notice of any kind, cause any such street or streets to be sprinkled
or oiled,as he may deem advisable to eliminate the scattering of dust, by equipment and personnel
of City or by contract as the City Engineer shall determine,and the Subdivider agrees to pay to City
forthwith, upon receipt of billing therefor,the entire cost to City of such sprinkling or 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,
togetherwith 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 Nos. 5374 and 5313
Page 13
20. In the event that the actual cost or Final Cost Estimated is in excess of$1,000, all
of the work and improvements and materials in the planning, design, pre-construction and
construction phases of the work and improvements, and any maintenance of such improvements,
constitutes a "public work"as defined in Chapter 1, Part 7, Division 2 of the California Labor Code
to which Section 1771 thereof applies, and Subdivider shall cause the work to be performed as a
"public work" in accordance with such Chapter of the California Labor Code; and (ii) Subdivider
shall fulfill all its duties, if any, under the Civil Code or any other provision of law pertaining to the
maintenance of bonds to secure payment of contractors, including the payment of wages to
workers performing the work.
Subdivision Agreement WROW Addendum
Tract Nos. 5374 and 5313
Page 14
The parties have executed this Agreement on the day and year first above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
BEAZER HOMES HOLDING CORPORATION,
DAVID D. HEALEY, Director A Delaware Corporation _-
Public Works Department
By: Y/�7—I�v) B .
Michael T. Kim, P.E., Assistant Director Alan Wew an, Vice President of Operations
APPROVED AS TO FORM:
JAMES C. SANCHEZ (Attach Notary Acknowledgment)
Interim City Attorney
By:
Deputy
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
Countyof
RY-e L) ss.
On 1r'C Qbefore me, �SC?�� Y1� /V � /c,
Date
Date Name and Title of Offic .g.,"Jane Doe,Notely Public")
personally appeared Alw
e personally known to me
❑ 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
RM E.LONG he/she/they executed the same in his/her/their
CO1"iwbsion#1631"7 authorized capacity(ies), and that by his/her/their
Nokxy .C°N01~O signature(s) on the instrument the person(s), or the
Fiwno County
UVC 80ftD8c 1e, entity upon behalf of which the person(s) acted,
-4
executed the instrument.
WITNE my han an o 'cial seal.
Place Notary Seal Above
Signature o otaablic
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 D u e t6,33
Title or Type of Document: �� V - CEr44
7
10
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Cl��med byvim
Signer's Name: }}{{�' 0ASigner's Name:
❑ Vividual ❑ Individual
'Corporate Officer—Title(s): ❑ Corporate Officer—Title(s)
❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ eneral
❑ Attorney in Fact Top of thumb here ❑ Attorney in FaMOM
ct Top of thumb here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or C servator
❑ Other: ❑ Other:
Sigqqr Is Representing: Signer IS resenting:
0 2004 National Notary Association•9350 De Soto Ave.,PO.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1-800-876-6827
CLERK'S CERTIFICATION
State of California)
County of Fresno)
On April 6. 2006, before me, Elvia Sommerville, Deputy City Clerk, personally appeared,
Michael T. (M.T.)Kirn.Assistant Public Works Director, 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 be within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the
instrument the person(s), or the entity upon behalf of which the person(s)acted, executed
the instrument.
WITNESS my hand and official seal.
REBECCA E. KLISCH
CITY CLERK, CMC
J
Byi
Deputy
ADDENDUM TO SUBDIVISION AGREEMENT
(RIGHT-OF-WAY ACQUISITION)
WHEREAS, this is an addendum ("Addendum")to a subdivision agreement("Agreement")
entered into pursuant to the Subdivision Map Act, specifically, Government Code Section 66462,
affecting the Final Map of Tract No. 5374 "Final Map"); and,
WHEREAS,Vesting Tentative Map No.5374,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 IS 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. 5374 and Tract No. 5313
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. 5374 and Tract No. 5313
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. 5374 and Tract No. 5313
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.
Addendum to Subdivision Agreement
Tract No. 5374 and Tract No. 5313
Page 5
19. Summary of Initial Deposit.
Easement Acquisition for APN: 481-120-03
AMOUNT TO BE DEPOSITED ITEM
$7,900 Value of Street Easement
1,000 Escrow and Title expenses
5,000 Real Estate Staff time
10,000 Attorney Staff time
4,780 Contingency (20% ±)
$28,680 SUB-TOTAL
$ 28,700 TOTAL (rounded to nearest $100)
K:\CONSULTANT SERVICES - URS\URS T-5374 & T-5313\5374 & 5313 Subdivision Agreement Final Map ADDENDUM
v01-09-06.wpd
EXHIBIT A Subdivision Agreement for Tracts 5313 & 5374
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $178,930
Well Construction Cost Estimate $800,000
Sewer System Construction Cost Estimate $208,412
Street Construction Cost Estimate $2,332,424
Final Cost Estimate (for Inspection Fee purposes) $3,519,76611
412 Landmarks, Monuments, Lot& Block Corners ($50/ea) $20,600
Sub-Total (for bonding purposes) $3,540,366
Construction Contingency(10%) $354,037
TOTAL COST ESTIMATE*
(for improvement securities purposes) IF $3,894,403 $3,894,000
*All amounts rounded to nearest$1000
B. IMPROVEMENT SECURITY REQUIREMENTS (due with subdivision agreement)
Performance Security (100%of Total Cost Estimate)
95% of amount shall be in the form of a bond by duly
authorized corporate sureties or irrevocable letter of
credit $3,699,000
5% of amount shall be in cash or a Certificate of Deposit $195,000
Payment Security (50%of Total Cost Estimate)
100% of amount shall be in the form of a bond by duly
authorized corporate sureties or irrevocable letter of
credit $1,947,000
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 $17,000
Minimum amount $26,000
EXHIBIT A v4/28/00 Prepared By: Frank Date: 03/23/06 Print Date:03/23/06 12:08:08 PM Page 1 of 1
EXHIBIT B Subdivision Agreement for Tracts 5313 & 5374
NET AMOUNT AMOUNT
EXTENSION DUE DEFERRED
A. MISCELLANEOUS FEES&CHARGES FOR TRACTS 5313&5374
1. INSPECTION FEE
$0 Final Cost Estimate<$101< na
(11.52%;$600 minimum fee)
$0 Final Cost Estimate>$10K<$500K na
($4836+3.25%of amount over$10K)
$3,519,766 Final Cost Estimate over$500K $144,603.41
($20,793+4.1%of amount over$500K)
Less Inspection Fees paid with Early
Sewer/Water Construction Agreement $20,796.00
Less Inspection Fees paid with Early Street
Construction Agreement $91,319.00
Inspection Fee $32,4 .41 $32,488.41
2. MONUMENT CHECK FEE
176 Lots and Outlots(T-5313,5374) @ $30.00 per Lot 5,280.0 $5,280.00
(Min$200)
3. STREET SIGNS
DO Street Name Sign sets @ $173.00 per set na na
DO Warning/Regulatory signs @ $77.00 sign na na
4. STREET TREES
OCity installed(5-gallon)Street Trees @ $129.00 per Tree na na
220 Inspection Fee(when planted by subdivider) @ $30.00 per Tree $6,600.00 $6,600.001
OTrees by Covenant(Resolution 98-129;2 trees/Lot fronting 50'streets)
5. STAMPED CONCRETE STREET PAVING MAINTENANCE
For the continued maintenance&
0 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 nal na
7. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-2)
OLots(anticipated maintenance cost) @ $0.00 per Lot na
Lum Sum Other maintained features $0.00
Incidental expenses: legal fees,publications,mailings.
Lum Sum engineering,assessment district proceedings ------F $0.00
Lots(Incidental expenses:legal fees,
publications,mailings,engineering, per Lot
0 assessment district proceedings @ $0.00 ($1,500 min) $0.00
Lum Sum Landscape area Field Inspection Fee- @ $305.00 LS na
Public Works
Total na na
$0.00 Estimated assessment per Lot(information only)
8. IRRIGATION PIPELINE(one-time maintenance fee)
OLineal Feet @ $5.00 per LF na na
TOTAL MISCELLANEOUS FEES&CHARGES $44,368.41 $44,368.41
EXHIBIT B v11/01/01 Printed 03/23/06 12:08:21 PM Page 1 of 4
.
EXHIBIT B Subdivision Agreement for Tracts 5313 & 5374
NET AMOUNT AMOUNT
EXTENSION DUE DEFERRED
B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED FOR TRACTS 5313&5374
F
6467 Gross Acres
2099 Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets
171 Units(residential)
R-1 Zoning
u m Input"ugm"if within the Urban Growth Management Area or"no"
1. LOCAL DRAINAGE FEES
BD FMFCD Drainage Area
0.0000 Acres per FMFCD @ $0 per Acre na
Local Drainage Fee $0.00 $0.00 (B1)
(B1)All or portion of fee obligation satisfied pursuant to FMFCD agreement.
2. SEWER CONNECTION CHARGES
(a)Lateral Sewer Charge
Frontage: S.Peach Avenue 66 600 SF
Total Square Feet 66,600 SF
66 600 SF; sub-total Lateral Sewer Charge @ $0.10 per SF $6 660.00
Less estimated Lateral Sewer Charge Credits
Lateral Sewer Charge $6,660. 0 $683.521-
Fee
683.52 'Fee Due for Lots under Early Issuance of Building Permits Agreement
(b) versize Sewer Charge
35 UGM Reimbursement Area
Frontage: S.Peach Avenue (:7)6—,6-0-01 SF
Frontage: E.Jensen 61 800 SF
Total Square Feet 128 400 SF
128 400 SF;sub-total Oversize Sewer Charge @ $0.05 per SF $6,420.00
Less estimated Oversize Credits $3,225.00
Less estimated Overdepth Credits $5 160.00
Oversize Sewer Charge .00 $0.00 Paid w/Credits
(c)Trunk Sewer Charge
Fowler Trunk Sewer Service Area
171 Units @ $344,001 per Unit 58 824.00 $58,824.00
(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 Capacity Enhancement Charge
Trunk Sewer Service Area
171 Units @ $0.00 per Unit 0.00 $0.00
3. WATER CONNECTION CHARGES
(a)Time&Material Charges("Wet-Tie")
2005 0730 Estimate Number
5053 1 Water Job Number
Estimated Deposit(FMC 14-111 $35,400.00 $0.001(B3)
(B3) Deposit paid with Early Construction Agreement
EXHIBIT B v11/01/01 Printed 03/23/06 12:08:21 PM Page 2 of 4
4.
EXHIBIT B Subdivision Agreement for Tracts 5313 & 5374
NET AMOUNT AMOUNT
EXTENSION DUE DEFERRED
(b1)Service Connection Charges
15311"Meters to existing services @ $330.00 each 50,490.00 $0.001 $50,490.00
(b2)Landscape Service Connection Charges
212"Meters to existing services @ $530.00 each 1 060.00 $1,060.00
(c)Frontage Char e
Frontage:IS.Peach Avenue 591 LF
Frontage:I E.Grove Avenue 1,800 LF
Sub-Total Lineal Feet(full rate) 2,391 LF
2,391 LF; sub-total Frontage Charge(full rate) @ $6.50 per LF $15,541.50
Sub-Total Frontage Charge $15,541.50
Less estimated Frontage Charge Credits
Frontage Charge $15,541.501 $1,609.54 ' $13,931.96
(d)Transmission Grid Main Charge
D UGM Reimbursement Area
40.6467 Gross Acres @ $643.00 per Gr Acre $26,135.83
Less Estimated TGM Construction Credits $40,455.00
Transmission Grid Main Charge 0.00 $0.00 Paid w/Credits
(e)Transmission Grid Main Bond Debt Service Charge
40.6467 Gross Acres @ $243.00 per Gr Acre $9,877.15
Less Estimated TGM Bond Debt Service Charge Credits
Transmission Grid Main Bond Debt Service Charge9,877.15 $1,022.8-61- $8,854.29
( UGM Water Supply Fee
501-S Supply Well Service Area
171 Living Units(residential) @ $1 738.00 per Unit $297,198.00
Less Estimated UGM Water Supply Fee Construction Credits $800,000.00
UGM Water Supply Fee 0.00 Paid w/Credits
( Well Head Treatment Fee
501 Well Head Treatment Service Area
1711 Living Units(residential) @ $79.00 per Unit $13,509.00
Less Estimated Well Head Treatment Fee Construction Credits
Well Head Treatment Fee $13,509.00 $13,509.00
(h)Recharge Fee
501 Recharge Service Area
1711 Living Units(residential) @ $56.00 per Unit $9,576.00
Less Estimated Recharge Fee Construction Credits
Recharge Fee $9,576.001 1 $9,576.001
(I)1994 Bond Debt Service Fee
501 1994 Bond Debt Service Fee Service Area
1711 Living Units(residential) @ $93.00 per Unit $15,903.00
Less Estimated 1994 Bond Debt Service Fee Construction Credits
1994 Bond Debt Service Fee $15,903.00 $1,674.00 ' $14,229.00
EXHIBIT B v11/01/01 Printed 03/23/06 12:08:21 PM Page 3 of 4
EXHIBIT B Subdivision Agreement for Tracts 5313 & 5374
NET AMOUNT AMOUNT
EXTENSION DUE DEFERRED
4. URBAN GROWTH MANAGEMENT(UGM)FEES&CONSTRUCTION CREDITS
(a)UGM FIRE STATION FEE
15 Fire Station Service Area
40.6467 Gross Acres @ $605.00 per Gr Acre $24,591.25 $24,591.251 $0.00
(b)UGM NEIIHBORHOOD PARK FEE
2 Neighborhood Park Service Area
40.6467 Gross Acres @ $2,392.00 per Gr Acre $97,226.91 $97,226.91 1 $0.00
(c UGM STREET CHARGE
D-1/E-2 Major Street Zone
39.2099 Adjusted Gross Acres @ $3,161.00 per AG Ac $123 942.49
Less Estimated Major Street Charge Construction Credits $139 603.00
Major Street Charge $0.001 $0.001 Paid w/Credits
(d UGM MAJOR STREET BRIDGE CHARGE
D-1/E-2 Major Street Bridge Zone
39.2099 Adjusted Gross Acres @ $304.00 per AG Ac $11,919.81
Less Estimated Major Street Bridge Charge Construction Credits
Major Street Bridge Charge11 919.81 1 $1,234.40* $10 685.36
(e UGM GRADE SEPARATION CHARGE
Grade Separation Service Area
39.2099 Adjusted Gross Acres @ $0.00 per AG Ac na
(q UGM TRUNK SEWER FEE
Fowler Trunk Sewer Service Area
39.2099 Adjusted Gross Acres @ $0.00 per AG Ac na
5. NON-URBAN GROWTH MANAGEMENT(UGM)CITYWIDE IMPACT FEES&CONSTRUCTION CREDITS
(e T) RAFFI_C SIGNAL CHARGE
0171 Living Units(residential) @ $414.69 per Unit $70,911.99
Less Estimated Traffic Signal Charge Construction Credits
Traffic Signal Charge 70,911.9 $7,464.42-1-
Total
7,464.42 •Total Impact Fees&Charges $421,490.61 $218,475.95 $167,6
Note: EXTENSION total includes net results of construction credits
SUMMARY
TOTAL(A) MISCELLANEOUS FEES&CHARGES $44,368.41
TOTAL(B) IMPACT FEES&CHARGES $218,475.95 1 $167,614.66
TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $262,844.36
EXHIBIT B v 11101101 Printed 03/23/06 12:08:21 PM Page 4 of 4