HomeMy WebLinkAboutT-5564 - Agreement/Covenant - 5/1/2008 City of
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PUBLIC WORKS DEPARTMENT
2600 Fresno Street
Fresno, California 93721-3616
(559) 621-8650
P.W. File No. 11160
SUBDIVISION AGREEMENT
FINAL MAP OF TRACT NO. 5564
Subdivision Agreement
Tract No. 5564
Page 2
THIS AGREEMENT is made this 277th day of Ul oluz 20_0k, by and
between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City,"
and, GEORGE R. GODDARD, a Widower, 1625 Howard Road #321, Madera, California,
93637-5128 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 the Final Map of Tract No. 5564 (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 Tentative Map No. 5564 dated
May 17, 2006 and Special Permit No. C-06-19 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
Tract No. 5564
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 Subdividerand 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 by the City Engineer. The Subdivider shall notify the Public
Works Department - Construction Management Division of the planting schedules and to
schedule inspections.
C. The Issuance of building permits forany structure within the subdivision shall
conform to the requirements of the prevailing Uniform Fire Code (UFC). The Subdivider's
attention is particularly called to Part III,Article 9 of UFC relating to Fire Department access
and water supply. No building permit shall be issued until all Fire Department access and fire
fighting water supply requirements have been met. No occupancy permit shall be 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 norany 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
Tract No. 5564
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.
Subdivision Agreement
Tract No. 5564
Page 5
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 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, or as directed bythe City Engineer. The
Subdivider shall maintain these temporary storm drainage basins so as not to create a
nuisance as defined by Fresno Municipal Code, section 9-804 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.
The Subdivider has elected to satisfy Subdivider's maintenance obligation of such
improvements by a homeowners' association.
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
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.
Subdivision Agreement
Tract No. 5564
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 a
City Community Facilities District("CFD"), such improvement plans shall be approved by the
City Engineer.
The Subdivider has elected to satisfy Subdivider's maintenance obligation of such
improvements by a homeowner's association.
j. Perform and construct all work shown on the following construction plans and
any amendments thereto, unless specifically omitted herein.
i. City Drawing Nos: 15-C-14187 through 15-C-14188, inclusive,
(street).
Install and complete all other street improvements required by Section 12-1012 of the
Fresno Municipal Code in accordance with the Public Works Standards and the construction
plans.
k. Prior to approval of the Final Map by the City,the Subdivider shall pay to the
City and /or execute a covenant to defer certain impact fees due which are eligible to be
deferred by relevant FMC provisions,the total fees and charges due as a condition of Final
Map approval. The total fees and charges are more particularly itemized and made a part of
this agreement in the attached Exhibit "B."
I. In connection with 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
Subdivision Agreement
Tract No. 5564
Page 7
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.
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 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
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
Deposit and Irrevocable Standby Letters of Credit must be in a form acceptable to the Finance
Department.
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.
Subdivision Agreement
Tract No. 5564
Page 8
i. 95% of the final Cost Estimate shall be in the form of a bond or
irrevocable standby letter of credit; 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 irrevocable standby letter of credit.
C. Any and all other improvement security as required by Section 12-1016 of the
Fresno Municipal Code.
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
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 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 released, less any amount required to be used for fulfillment
of the warranty, one (1) year after final acceptance of the subdivision Improvements.
Subdivision Agreement
Tract No. 5564
Page 9
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. 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 and litigation expenses), arising or alleged to
have arisen directly or indirectly out of performance of this Agreement or 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. Subdivider's obligations under the preceding sentence
shall apply regardless of whether Subdivider or any of its officers, officials, employees or agents are
passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or the willful misconduct, of City or any of its
officers, officials, employees, agents or volunteers.
If Subdivider should subcontract all or any portion of the work to be performed under this
Agreement,Subdividershall require each subcontractorto indemnify, hold harmless and defend City
and each of its officers, officials, employees, agents and volunteers in accordance with the terms of
the preceding paragraph in this Section 10. 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 the preceding paragraph of this Section 9,
be required to indemnify, hold harmless and defend City and each of its officers, officials,
employees, agency and volunteers to the furthest extent allowed by law, from any and all loss,
Subdivision Agreement
Tract No. 5564
Page 10
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.
The Subdivider further agrees that the use for any purpose and by any person of any and all
of the streets and improvements hereinbefore specified, shall be at the sole and exclusive risk of the
Subdivider at all times prior to final acceptance by the City of the completed street and other
improvements thereon and therein. 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:
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 $1,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury and $1,000,000
aggregate for products and completed operations.
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.
Subdivision Agreement
Tract No. 5564
Page 11
C. PROFESSIONAL LIABILITY(Errors and Omissions)insurance appropriate to
the respective person's profession (applicable only to those subcontractors who are
providing Professional Services to the Subdivider), with limits of liability of not less than
$1,000,000 per claim/occurrence and policy aggregate.
d. WORKERS' COMPENSATION insurance as required under the California
Labor Code.
e. 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 Subdividershall 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 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
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 5 year discovery period, or (ii) the coverage shall be maintained for a minimum of 5 years
following the termination of this Agreement and the requirements of this section relating to such
Subdivision Agreement
Tract No. 5564
Page 12
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/it's subcontractors shall not be
deemed to release or diminish the liability of Subdivider,or his/her/it's 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/it's
subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relief
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,or his/her designee, may
order that the Subdivider, or its contractors or subcontractors, immediately 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.
Subdivision Agreement
Tract No. 5564
Page 13
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 underthis
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 of the City of Fresno.
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
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
Subdivision Agreement
Tract No. 5564
Page 14
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 Engineer will be
subject to rejection. The inspection of the Improvements 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.
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
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Tract No. 5564
Page 15
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
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 Corriply 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 terriporary 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.
Subdivision Agreement
Tract No. 5564
Page 16
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 Covenants Affecting Land Development which may apply for
specific purposes (e.g., temporary storm drainage basin, temporary off-street facilities, emergency
access road, etc.)and referenced on the final map and this agreement,Subdivider shall comply with
all of the Conditions of Approval set forth in the Conditions of Approval for Tentative Map No. 5564
dated May 17, 2006 and Special Permit No C-06-19 dated May 17, 2006, and any amendments
thereto 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 Fresno 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
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Tract No. 5564
Page 17
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 refered to the City's Department of Public Works, Construction
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, covenant 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.
24. The waiver by either party 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. 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.
26_ Each party 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,
Subdivision Agreement
Tract No. 5564
Page 18
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.
Subdivision Agreement
Tract No. 5564
Page 19
The parties have executed this Agreement on the day and year first above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
George R. Goddard, a Widower
Public Works Department
Patrick Wiemiller, Director
4-0 _ q 9 J
By: By: !�
Scott Mozier, P.E., Assistag Director George R. Goddard
ATTEST:
Rebecca E. Klisch, CMC
City Clerk, City of Fresno
By:�sGt17 7 o
Deputy
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: (24to
John W. Fox
Deputy City Attorney
Date:
(Attach Notary Acknowledgments)
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of CA )
County of m Qd elo' )
On before me, Jot7iple r- . Q A),,T4
(Notary Public Name)
personally appeared Q J
who proved to me on the basis of sat factory evidence to be the person(4whose name(4 is/aFe subscribed to
the within instrument and acknowledged to me that he/shefthey executed the same in his/hef4heir authorized
capacity(iesjr, and that by his/l eir signatures(s-�on the instrument the person(*)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.
DANIELLE PORTER t
I S my h lid official seal a Commission#1615503
Notary Public-California
Madera County
My Comm.Expires Oct 22,200
Signature of Notary Public
INSTRUCTIONS FOR COMPLETING THIS FORM
DESCRIPTION OF THE ATTACHED Any acknowledgment completed in California must contain verbiage exactly as
S� ``�� 11 DOCUMENT appears above in the notary section or a separate acknowledgment form must be
dllD!/I U151(In >�GIIrYP1"(�(j properly completed and attached to that document. The only exception is if a
(Title or description of aDfiched document) document is to be recorded outside of California. In such instances, any
alternative acknowledgment verbiage as may be printed on such a document so
(Title or description of attached document continued) long as the verbiage does not require the notary to do something that is illegal
for a notary in California (i.e. certifying the authorized capacity of the signer).
Number of Pages Document Date Please check the document carefully for proper notarial wording and attach this
form if required.
■ State and County information must be the State and County where the
(Additional Information) document signer(s) personally appeared before the notary public for
acknowledgement.
■ Date of notarization must be the date that the signer(s) personally appeared
which must also be the same date the acknowledgment is completed.
■The notary public must print his or her name as it appears within his or her
CAPACITY CLAIMED BY THE SIGNER commission followed by a comma and then your title(notary public).
■ Print the name(s) of document signer(s) who personally appear at the time of
❑ Individual(s) notarization.
■ Indicate the correct singular or plural forms by crossing off incorrect forms or
❑ Corporate Officer circling the correct forms. Failure to correctly indicate this information may
lead to rejection of document recording.
(Title) ■ The notary seal impression must be clear and photographically reproducible.
❑ Partner(s) Impression must not cover text or lines. If seal impression smudges,re-seal if a
❑ Attorney-In-Fact sufficient area permits,otherwise complete a different acknowledgment form.
❑ Trustee(s) • Signature of the notary public must match the signature on file with the office
❑ Other of the county clerk.
❖ Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
❖ Indicated title or type of attached document,number of pages and date.
❖ Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer,indicate the title.
■ Securely attach this document to the signed document
EXHIBIT A Subdivision Agreement for Tract 5564
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $35,120
Well Construction Cost Estimate $0
Sewer System Construction Cost Estimate $0
Storm Drain Construction Cost Estimate $0
Street Construction Cost Estimate $3,500
Final Cost Estimate (for Inspection Fee purposes) $38,620
16 Landmarks, Monuments, Lot& Block Corners ($50/ea) $800
Sub-Total (for bonding purposes) $39,420
Construction Contingency(10%) $3,942
TOTAL COST ESTIMATE*
(for improvement securities purposes) $43,36211
$43,000
*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 $40,900
5% of amount shall be in cash or a Certificate of
Deposit made payable to the City of Fresno. 1 $2,200
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 $21,500
Faithful Performance Security to Guarantee Completion of Plans
Street Plans $0
Utility Plans (Sewer.Water, Storm Water) $0
Street Light Plans $0
Landscaping/Irrigation/Walls $0
100% of amount shall be in cash or a Certificate of Deposit I $0
C. WARRANTY SECURITY REQUIREMENT*(due as condition of acceptance of the work)
5% of first$50,000 of the Total Cost Estimate $2,200
3% of next$50,000 $0
1% of next$400,000 $0
0.5% of amount over$500,000 $0
Minimum amount $2,200
EXHIBIT A v4/28/00 Prepared By: Frank Date: 03/17/08 Print Date:03/17/08 4:04:38 PM Pagel of 1
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INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
(T-5564)
In consideration for being hired by GEORGE R. GODDARD ("SUBDIVIDER") to install certain
public works of improvement as more specifically identified in the Subdivision Agreement for the Final
C-7 Map of Tract 5564 entered into between the City of Fresno ("CITY') and SUBDIVIDER, and to the furthest
O extent allowed by law, MATHESON & HERRERA CONSTRUCTION INCORPORATION, a
C'7 Z California Corporation ("CONTRACTOR") does hereby agree to indemnify, hold harmless and defend
Op rl the 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,
MCONTRACTOR or any other person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly
out of any work performed on, in or adjacent to the property comprising Final Map No. 5564 by the
CONTRACTOR or any of his/her/its principals, officers, employees, agents, volunteers, consultants,
engineers, subcontractors, vendors, suppliers, invitees or anyone employed directly or indirectly by any of
them. CONTRACTOR'S obligations under the preceding sentence shall apply regardless of whether
CITY of any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not
apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole
negligence or willful misconduct of the CITY of any of its officers, officials, employees, agents or
volunteers.
Throughout the life of this Agreement, CONTRACTOR shall pay for and maintain in full force and
effect all insurance as required in Exhibit A, which is incorporated into and part of this Agreement, or as
may be authorized or required in writing by CITY'S Risk Manager or his/her designee at any time and in
his/her sole discretion.
CONTRACTOR shall conduct all defense at his/her/its sole cost. The duty to defend hereunder is
wholly independent of and separate from the duty to indemnify and such duty to defend exists regardless
of any ultimate liability of CONTRACTOR. Such defense obligation shall arise immediately upon
presentation of a Claim by any party and written notice of such Claim being provided to CONTRACTOR.
The policy limits do not act as a limitation upon the amount of defense and/or indemnification to be
provided by CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of CONTRACTOR, its principals, officers, employees, agents,
volunteers, consultants, engineers, subcontractors vendors, suppliers, invitees or anyone employed
directly or indirectly by any of them.
CITY shall be reimbursed for all costs and attomey's fees incurred by CITY in enforcing this
Agreement.
This Indemnification and Hold Harmless Agreement shall survive the CONTRACTOR'S
completion of the work specified in the Subdivision Agreement entered into between the CITY and
SUBDIVIDER for the Final Map for Tract 5564.
1
The CONTRACTOR acknowledges that he/she/it (i) has read and fully understands 'the
content of this Indemnification and Hold Harmless Agreement; (ii) is aware that this is a contract
between the CITY and CONTRACTOR (iii) has had the opportunity to consult with his/her attorney,
in his/her discretion; (iv) is fully aware of the legal consequences of signing this document; and
(v)is the CONTRACTOR or his/her/its authorized signatory.
The parties have executed this Agreement on this r day of April, 2008.
CITY OF FRESNO, CONTRACTOR
a Municipal Corporation MATHESON & HERRERA CONSTRUCTION
INCORPORATION, a California Corporation
Public Works Department 3640 Judd Avenue
Patrick Wiemiller, Director Sanger, CA 93657
By. By.
Efr n Banu6—los, Assistant Director ,
ATTEST:
Rebecca E. Klisch, CMC
City Clerk, City of Fresno
By: � C [Contractor to print/type name and title
Deputy of officer(s) authorized to sign on behalf of
the Corporation]
(Attach Notary Acknowledgments)
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: 3rx
John W. Fox
eputy City Attorney
A0,
Dater 'ZIC6 ,
� 2
ACKNOWLEDGMENT
State of Cal
County of Mu) )
On 242OR before me, i
(inse name a d tit a of the offs r)
personally appeared
who proved to me on the basis jbf satisfactory evidence to be the person(Q whose name(EQ is/aro
subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in
his/I #eiFauthorized capacity(ies), and that by his/li�r signature(54on the instrument the
person* or the entity Upon behalf of which the person(�kacted, 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. KARYN SAPP
COMM.#1722607
f' NOTARY PUBLIC•CALIFORNIA
FRESNO COUNTY
Comm.Exp.FEB.28,2011
Signatur (Seal)
CLERK'S CERTIFICATION
State of California )
County of Fresno )
On April 30, 2008, before me, Elvia Sommerville, Deputy City Clerk, City of Fresno,
personally appeared, Efren Banuelos, Assistant Public Works Director, 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) 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.
REBECCA E. KLISCH, CMC
City Clerk, City of Fresno
rr d
\ f: O
By
Deputy
EXHIBIT A
INSURANCE REQUIREMENTS FOR CONTRACTOR
During any work performed on, in or adjacent to the property comprising Final Map
No. 5564, CONTRACTOR shall pay for and maintain in full force and effect all policies of
insurance required hereunder 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 or his/her designee.
The following policies of insurance are required:
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
$1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for
personal and advertising injury and$1,000,000 aggregate for products and completed operations.
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 $5,000,000 per accident for bodily injury and property damage.
C. PROFESSIONAL LIABILITY (Errors and Omissions) insurance appropriate to the
respective person's profession (applicable only to those consultants, engineers or subcontractors
who are providing Professional Services to the CONTRACTOR), with limits of liability of not less
than $1,000,000.00 per claim/occurrence and policy aggregate.
d. WORKERS' COMPENSATION insurance as required under the California Labor
Code.
e. EMPLOYER'S 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.
CONTRACTOR shall be responsible for payment of any deductibles contained in
any insurance policies required hereunder and CONTRACTOR 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, CONTRACTOR shall provide a new certificate evidencing renewal of such
policy 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, CONTRACTOR 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 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 CONTRACTOR'S
insurance shall be primary and no contribution shall be required of CITY. In the event claims
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made forms are used for any Professional Liability coverage, either (i) the policy(ies) shall be
endorsed to provide not less than a 5 year discovery period, or (ii) the coverage shall be
maintained for a minimum of 5 years following CONTRACTOR'S completion of the work specified
in the Subdivision Agreement entered into between the CITY and SUBDIVIDER for the Final Map
for Tract 5564. Any Workers' Compensation insurance policy shall contain a waiver of
subrogation as to CITY, its officers, officials, agents, employees and volunteers. CONTRACTOR
shall have furnished CITY with the certificate(s) and applicable endorsements for ALL
required insurance prior to work performed on, in or adjacent to the property comprising
Final Map No. 5564. CONTRACTOR shall furnish CITY with copies of the actual policies upon
the request of CITY's Risk Manager and this requirement shall survive CONTRACTOR'S
completion of the work specified in the Subdivision Agreement entered into between the CITY
and SUBDIVIDER for the Final Map for Tract 5564.
The fact that insurance is obtained by CONTRACTOR or his/her/it's consultants,
engineers or subcontractors shall not be deemed to release or diminish the liability of
CONTRACTOR or his/her/it s consultants, engineers or subcontractors including without
limitation, liability under 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 CONTRACTOR or his/her/it's consultants, engineers or
subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relief
from liability nor limit the liability of CONTRACTOR, its principals, officers, employees, agents,
volunteers, consultants, engineers, subcontractors vendors, suppliers, invitees or anyone
employed directly or indirectly by any of them.
If at any time during any work performed on, in or adjacent to the property comprising
Final Map No. 5564, CONTRACTOR fails to maintain the required insurance in full force and
effect, the Director of Public Works, or his/her designee, may order that the CONTRACTOR, or
his/her/its consultants, engineers or subcontractors immediately discontinue any further work
specified in the Subdivision Agreement entered into between the CITY and SUBDIVIDER for the
Final Map for Tract 5564 and take all necessary actions to secure the work site to insure that
public health and safety is protected. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate the Subdivision Agreement.
If CONTRACTOR should subcontract all or any portion of the services to be performed
under this Agreement, CONTRACTOR shall require each consultant, engineer or 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
consultants, engineers or subcorrtractors certificates and endorsements shall be on file with
CONTRACTOR, CITY and SUBDIVIDER prior to the commencement of any work by the
consultant,engineer or subcontractor.
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