HomeMy WebLinkAboutT-5901 - Agreement/Covenant - 6/25/2008 City of
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PUBLIC WORKS DEPARTMENT
® 2600 Fresno Street
W Fresno, California 93721-3616
y (559) 621-8650
a
J P.W. File No. 11327
a
SUBDIVISION AGREEMENT
FINAL MAP OF TRACT NO. 5901 ,
PHASE 1 OF VESTING TENTATIVE MAP NO. 5901/UGM
Subdivision Agreement
Tract No. 5901
Page 2
THIS AGREEMENT is made this-2471K day of 20 o fe, by and
between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City,"
and, BN 5312 L.P., a California Limited Partnership, 7030 North Fruit Avenue, Suite 100,
Fresno, California, 93711 hereinafter designated and called the "Subdivider," without regard for
number or Gender.
RECITALS
A. The Subdivider has presented to the City a certain final map of a proposed
subdivision of land owned by the Subdivider and located within the corporate limits of the City known
and described as the Final Map of Tract No. 5901 (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 forthe use and purposes specified thereon,and
to otherwise approve the Final Map in order that the same may be recorded, as required by law.
B. The City requires, as a condition precedent to the acceptance and approval of the
Final Map, the dedication of such streets, highways and public places and easements as are
delineated and shown on the Final Map, and deems the same as necessary for the public use, and
also requires that any and all streets delineated and shown on the Final Map shall be improved by
the construction and the installation of the improvements hereinafter specified.
C. Section 12-1014 of the Municipal Code of the City of Fresno requires the Subdivider
to enter into this Agreement with the City whereby Subdivider agrees to do, perform and complete
the work and matters required as Conditions of Approval for Vesting Tentative Map No. 5901/UGM
dated November 14, 2007 and Conditional Use Permit No. C-07-270 dated November 14, 2007
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
Subdivision Agreement
Tract No. 5901
Page 3
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 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 for any structure within the subdivision shall
conform to the requirements of the prevailing Uniform Fire Code (UFC). The Subdivider's
attention is particularly called to Part III,Article 9 of UFC relating to Fire Department access
and water supply. No building permit shall be issued until all Fire Department access and fire
fighting water supply requirements have been met. No occupancy permit shall be issued
until all Fire Department requirements for occupancy have been met. The issuance of any
occupancy permits by the City for dwellings located within said subdivision shall not be
construed in any manner to constitute an acceptance and approval of any or all of the
streets and improvements in the subdivision.
d. No certificates of occupancy will be issued nor any human occupancy allowed
for any building on any lot of the subdivision until permanent sanitary sewer and water
service is determined to exist by the Director of Public Utilities Department.
e. When a delay occurs due to unforeseen causes beyond the control and
without the fault or negligence of the Subdivider,the time of completion may be extended for
a period justified by the effect of such delay on the completion of the work. The Subdivider
Subdivision Agreement
Tract No. 5901
Page 4
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 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 bythe
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
Subdivision Agreement
Tract No. 5901
Page 5
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 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 by the 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 annexing the subdivision into the City Community Facilities District.
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. 5901
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 annexing the Subdivision into a CFD and shall maintain such
improvements until such time as the City Engineer determines that a specific CFD is
responsible for such maintenance thereafter. Additionally Subdivider shall provide each
prospective purchaser, a "Notice of Special Tax" in accordance with the provisions of
Section 53341.5 of the California Government Code and the Statement of Covenants
Affecting Land Development for the Maintenance of Certain Improvements for the Final Map
of Tract No. 5901, Phase 1 of Vesting Tentative Map No.5901/UGM recorded as Document
No. on , Fresno County Records and
incorporated into this agreement by this reference. (NOTE: The recording data for this
Statement shall be added by the City Clerk)
j. Perform and construct all work as shown on Exhibit C, and any amendments
thereto, unless specifically omitted herein.
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
Subdivision Agreement
Tract No. 5901
Page 7
this agreement in the attached Exhibit"B."
I. In connection with the amounts set forth in Exhibits"A"and "B,"the City has
made its best faith efforts at predicting the amounts to be credited as reimbursements for
Improvements that will benefit other properties. Because the subject Improvements have
not been completed at the time of execution of this Agreement, the actual cost of
construction is not yet known. Some degree of reasonable estimation is incorporated into the
calculations. Subdivider agrees that these figures represent City's best estimates only and
that they are subject to fluctuation following calculation of actual construction costs after
improvement completion and acceptance. It is Further subject to Subdivider's submission
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
Subdivision Agreement
Tract No. 5901
Page 8
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.
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.
d. Subject to the requirements of Resolution No. 2008-100 adopted by the City
Council on May 6, 2008, the Subdivider may request a one-time partial acceptance, for
maintenance only, of public improvements required by this agreement that the Subdivider
has constructed, to reduce the amount of the Performance Security required by this
Agreement. At the time of the City's partial acceptance, the City and Subdivider shall enter
into an amendment to this Agreement reducing the Performance Security to an amount
consistent with the requirements of Resolution No. 2008-10 required by this Agreement.
The City shall not release any of the original Performance Security or execute the
Amendment to this Agreement until such time as the Subdivider has provided the
Performance Security required by the Amendment.
6. Any damage to the work and improvements constructed pursuant to this agreement
that occurs after installation shall be made good to the satisfaction of the City Engineer by the
Subdivider before any securities are released or the final acceptance of the completed work.
7. The Subdivider shall remedy any defective work or labor or any defective materials
relating to the Improvements and pay for any damage to other work or improvements resulting
Subdivision Agreement
Tract No. 5901
Page 9
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 forfulfillment
of the warranty, one (1) year after final acceptance of the subdivision Improvements.
9. This Agreement shall in no way be construed as a grant by the City of any rights to
the Subdivider to trespass upon land rightfully in the possession of, or owned by, another, whether
such land be privately or publicly owned.
10. Indemnification. 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,erriployees or agents are
passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
Subdivision Agreement
Tract No. 5901
Page 10
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 10,
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,
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
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Tract No. 5901
Page 11
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.
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 Subdivider shall also be responsible for payment of any self-insured
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted 30
calendar day written notice in favor of City of policy cancellation of coverage, except for the Workers'
Compensation policy which shall provide a 10 calendar day written notice of such cancellation of
Subdivision Agreement
Tract No. 5901
Page 12
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
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
Subdivision Agreement
Tract No. 5901
Page 13
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. Any
failure to maintain the required insurance shall be sufficient cause for City to terminate this
Agreement.
If Subdivider should subcontract all or any portion of the services to be performed under this
Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of
City, its officers, officials, employees, volunteers and agents in accordance with the terms of each of
the preceding paragraphs, except that the subcontractors'certificates and endorsements shall be on
file with Subdivider and City prior to the commencement of any work by the subcontractor.
12. The Subdivider and his subcontractors shall pay for any materials, provisions, and
other supplies used in, upon, for, or about the performance of the Improvements contracted to be
done, and for anywork 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.
Subdivision Agreement
Tract No. 5901
Page 14
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 complywith 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
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
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Tract No. 5901
Page 15
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 preventthe 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 bythe San Joaquin Valley
Air Pollution Control Board. Whenever in the opinion of the City Engineer adequate dust control is
not being maintained on any street or streets as required by this paragraph,the City Engineer shall
give notice to the Subdivider to comply ("Notice to Comply") with the provisions of this paragraph
forthwith. If in the opinion of the City Engineer the Subdivider's failure to comply with the provisions
of this paragraph is having an immediate and significant impact on the public's health, safety and
welfare, the City Engineer may immediately issue a stop work order until the City receives
reasonable assurances that the Subdivider shall comply with the provisions of this paragraph
forthwith. Such notices and stop-work orders may be personally served upon the Subdivider or, if
the Subdivider is not an individual, upon any person who has signed this Agreement on behalf of the
Subdivider or, at the election of the City Engineer,such notices and stop-work orders may be mailed
to the Subdivider at his address on file with the City Engineer. If the City Engineer has issued a
Notice to Comply and within twenty-four (24) hours after such personal service of such notice or
within forty-eight (48) hours after the mailing thereof as herein provided, the Subdivider shall not
have commenced to maintain adequate dust control or shall at any time thereafter fail to maintain
adequate dust control, the City Engineer may, without further notice of any kind, cause any such
street or streets to be sprinkled or oiled,as it may deem advisable to eliminate the scattering of dust,
by equipment and personnel of City or by contract as the City Engineer shall determine, and the
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Tract No. 5901
Page 16
Subdivider agrees to pay to City forthwith, upon receipt of billing therefore, the entire cost to City of
such sprinkling or treating. When the surfacing on any existing street is disturbed, this surfacing
shall be replaced with temporary or permanent surfacing within fourteen(14)calendar days, and the
roadway shall be maintained in a safe and passable condition at all times between the
commencement and final completion, and adequate dust control shall be maintained during these
operations.
18. Concrete curbs and gutters, the sanitary sewer system and house connections,
together with water mains, gas mains, and their respective service connections, and all other
facilities required to be installed under ground shall be completed in the streets and alleys before
starting the street and alley surfacing.
19. Time is of the essence of this Agreement, and the same shall bind and inure to the
benefit of the parties hereto, their successors and assigns.
20. No assignment of this Agreement or of any duty or obligation of performance
hereunder shall be made in whole or in part by the Subdivider without the written consent of City.
21. In addition to the 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 complywith
all of the Conditions of Approval set forth in the Conditions of Approval for Vesting Tentative Map
No. 5901 dated November 14, 2007 and Conditional Use Permit No. C-07-270 dated
November 14, 2007, 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.
Subdivision Agreement
Tract No. 5901
Page 17
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, Subdividershall 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
hereunder including, without limitation, payment of prevailing wages, competitive bidding,
subcontractor listing, or other matters. City shall not be liable or responsible, in law or equity,to any
person for Subdivider's failure to comply with any such laws, whether the City knew or should have
known of the need for Subdivider to comply, or whether the City failed to notify Subdivider of the
need to comply. The Subdivider is referred to the City's Department of Public Works, Construction
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
Subdivision Agreement
Tract No. 5901
Page 18
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 hereundershall 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,
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. 5901
Page 19
The parties have executed this Agreement on the day and year first above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
BN 5312 L.P.
Public Works Department A California Limited Partnership
Patrick Wiemiller, Director
By: Bonadelle Homes, Inc.
A California Corp on, as General Partner
By:� By:
Scott Mozier, P.E., Assista Director J n A. Bonadelle, resident
ATTEST:
Rebecca E. Klisch, CMC
City Clerk, City of Fresno
4 �
By:
Deputy C� �asTog�
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By
John W. Fox
Deputy City Attorney
Date: Z a7
(Attach Notary Acknowledgments)
STATE OF CALIFORNIA,
COUNTY OF Fresno
On June 3, 2008 , before me, Anna M. Renna ,
a Notary Public, personally appeared
John A. Bonadelle
who proved to me on the basis of satisfactory evidence to be the person(/) whose name(/)
is/a&e subscribed to the within instrument and acknowledged to me that he/shay
executed the same in his/hauthorized capacity(+cs), and that by his/her
signature( on the instrument the person(4, or the entity upon behalf of which the
person(} 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.
(Notary seal or stamp)
WITNESS my hand an fficial seal.
Signature rA
ANNA MNN
COMM.#1759837
7 NOTARY PUBLIC-CALIFORNW
�• Fttl10 COUNTY
My Cartm fomes A'g.30,2011
SUBORDINATION
The undersigned as holder of the beneficial interest in and under that certain Deed of Trust
recorded on April 23 20 08 , in the office of the Fresno County Recorder, as Document
No. 2008-0059354 of which the Deed of Trust in, by and between
BN 5312 L.P. , a California limited partnership as Trustor,
Chicago Title Company as Trustee
and California Bank & Trust, a California banking corporation Beneficiary,
hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing
Subdivision Agreement for the Final Map of Tract No. 5901, Phase 1 of Vesting Tentative Map
No 5901/UGM.
DATED: June 3, 2008
BENEFICIARY
ail,
By:
Richard J. k6dino, Sr Vice President
California Bank & Trust
By:
(Beneficiary to print/type document
information, Name, Title and attach Notary
Acknowledgment)
STATE OF CALIFORNIA,
COUNTY OF Fresno
On June 3, 2008 , before me, Anna M. Renna
a Notary Public, personally appeared
Richard J. Audino
who proved to me on the basis of satisfactory evidence to be the person( whose name(
is/subscribed to the within instrument and acknowledged to me that he/��
executed the same in his/1ker,� authorized capacity(ies), and that by his/l �r
signature(Jj on the instrument the person(), or the entity upon behalf of which the
perso() 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.
(Notary seal or stamp)
WITNESS my hand and official seal.
Signatur
ANNA M.RENNA
... COMM.#1759837
NOTARY PUBLIC•CALIFORNIA
r CD
FRESNO COUNTY
My�� Ex0es Aug.30,2011
EXHIBIT A Subdivision Agreement for Tract 5901
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $0
Well Construction Cost Estimate $0
Sewer System Construction Cost Estimate $0
Storm Drain Construction Cost Estimate $0
Street Construction Cost Estimate $73,156
Final Cost Estimate (for Inspection Fee purposes) $73,156
50 Landmarks, Monuments, Lot& Block Corners ($50/ea) $2,500
Sub-Total (for bonding purposes) $75,656
Construction Contingency(10%) $7,566
TOTAL COST ESTIMATE*
(for improvement securities purposes) $83,22211
$83,000
*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 $79,000
5% of amount shall be in cash or a Certificate of
Deposit made payable to the City of Fresno. 1 $4,000
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 $41,500
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 1 $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 $1,000
1% of next$400,000 $0
0.5% of amount over$500,000 1 $0
Minimum amount 1 $4,000
EXHIBIT A v4/28/00 Prepared By: Frank Date: 05/30/08 Print Date:05/30/08 10:54:40 AM Pagel of 1
EXHIBIT B Subdivision Agreement for Tract 5901
NET AMOUNT
EXTENSION DUE
A. MISCELLANEOUS FEES&CHARGES
1. INSPECTION FEE
$83,000 Final Cost Estimate>$1 OK<$5001< $7,208.50
($4836+3.25%of amount over$10K)
Less Inspection Fees paid with Early
Sewer/Water Construction Agreement
Less Inspection Fees paid with Early Street
Construction Agreement
Inspection Fee $7,208.501 $7,208.50
2. MONUMENT CHECK FEE
22 Lots and Outlots @ $30.00 per Lot $660.00 $660.00
(Min$200)
3. STREET SIGNS
00 Street Name Sign sets @ $173.00 per set na na
00 Warning/Regulatory signs @ $77.00 sign na na
4. STREET TREES
00 Inspection Fee(when planted by subdivider) @ $30.00 per Tree na na
5. STAMPED CONCRETE STREET PAVING 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 na na
7. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-11)
Anticipated maintenance costs:
Public Works Deparment
Lum Sum Landscaping $995.26
Lum Sum Other maintained features $129.90
Lum Sum Contract Management $33.75
Lum Sum Landscape area Field Inspection Fee- @ $305.00 LS $305.00
Public Works
Total $1,463.91 $1,463.91
$519.00 Estimated assessment per Lot(information only)
8. IRRIGATION PIPELINE(one-time maintenance fee)
DO Lineal Feet @ $5.00 per LF na na
TOTAL MISCELLANEOUS FEES&CHARGES $9,332.41 $9,332.41
EXHIBIT B v11/01/01 Printed 05/30/08 4:13:14 PM Page 1 of 4
EXHIBIT B Subdivision Agreement for Tract 5901
NET AMOUNT
EXTENSION DUE
B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED
1.7988 Gross Acres
1.7988 Net Acres
21 Units(residential)
R-2 Zoning
u m Input"ugm"if within the Urban Growth Management Area or"no"
1. LOCAL DRAINAGE FEES
BV FMFCD Drainage Area
1.7988 Acres per FMFCD @ $6,520 per Acre $11,728.00
Local Drainage Fee $11728.00 $11,728.0
2. SEWER CONNECTION CHARGES
(a)Lateral Sewer Charge
0 SF; sub-total Lateral Sewer Charge @ $0.10 per SF
(b)Oversize Sewer Charge
undesignated UGM Reimbursement Area
Frontage:I East Garland Avenue 78,357 SF
Total Square Feet 78357 SF
78,357 SF;sub-total Oversize Sewer Charge @ $0.05 per SF $3,917.85
Less estimated Oversize Credits
Less estimated Overdepth Credits
Oversize Sewer Charge $3,917.85 $3,917.85
' Fee Due for Lots under Early Issuance of Building Permits Agreement
(c)Trunk Sewer Charge
Fowler Trunk Sewer Service Area
21 Units @ $344.00 per Unit $7,224.00 I $7,224.00
(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
(e)Fowler Trunk Sewer Interim Fee Surety
211 Units @ $574.00 per Unit $12,054.00 $12,0,54.001-
Payable
12,054.00 -Payable at the rate in effect at time of issuance of Certificate of
Occupancy.The fee rate currently in effect is$574 per Living Unit or
Living Unit Equivlent.
3. WATER CONNECTION CHARGES
(a)Time&Material Charges("Wet-Tie")
Estimate Number
Water Job Number
Estimated Deposit(FMC 14-111-f) 11 so-001 $0.001(B3)
(133) Deposit paid with Early Construction Agreement
(b1)Service Connection Charges
21 1"Meters to existing services @ $330.00 each $6,930.00 $0.001--
EXHIBIT
0.00 "EXHIBIT B 01/01/01 Printed 05/30/08 4:13:14 PM Page 2 of 4
EXHIBIT B Subdivision Agreement for Tract 5901
NET AMOUNT
EXTENSION DUE
(b2 Landsca a Service Connection Charges
5 2"Meters to existing services @ $530.00 each $2,650.00 $2,650.00
(c)Frontage Charge
0 1 LF; sub-total Frontage Charge(full rate) @ $6.50 per LF na
(d)Transmission Grid Main Charge
UGM Reimbursement Area
1.7988 Net Acres @ $804.00 per Net Ac $1,446.24
Less Estimated TGM Construction Credits
Transmission Grid Main Charge $1,446.241 1 $1,446.24 '
(e)Transmission Grid Main Bond Debt Service Charge
1.79881 Net Acres @ $304.00 per Net Ac $546.84
Less Estimated TGM Bond Debt Service Charge Credits
Transmission Grid Main Bond Debt Service Charge $546.84 $546.84 `
( UGM Water Supply Fee
501-S Supply Well Service Area
211 Living Units(residential) @ $1,738.00 per Unit $36,498.00
Less Estimated UGM Water Supply Fee Construction Credits
UGM Water Supply Fee 11 $36,498.0011 1 $36,498.00
( Well Head Treatment Fee
501 Well Head Treatment Service Area
21 Living Units(residential) @ $79.00 per Unit $1,659.00
Less Estimated Well Head Treatment Fee Construction Credits
Well Head Treatment Fee $1,659.0011 1 $1,659.00
(h Rechar a Fee
501 Recharge Service Area
21 Living Units(residential) @ $56.00 per Unit $1,176.00
Less Estimated Recharge Fee Construction Credits
Recharge Fee $1,176.00 $1,176.00
(i)1994 Bond Debt Service Fee
501 1994 Bond Debt Service Fee Service Area
211 Living Units(residential) @ $93.00 per Unit $1,953.00
Less Estimated 1994 Bond Debt Service Fee Construction Credits
1994 Bond Debt Service Fee $1,953.001 1 $1,953.00 '
4. NON-URBAN GROWTH MANAGEMENT(UGM)CITYWIDE IMPACT FEES&CONSTRUCTION CREDITS
(a FIRE FA IL TIES IMPACT FEE
211 Living Units(residential) @ $539.00 per Unit $11,319.00
Fire Impact Fee $11,319.00 I $11,319.00
EXHIBIT B v11101/01 Printed 05/30/08 4:13:14 PM Page 3 of 4
EXHIBIT B Subdivision Agreement for Tract 5901
NET AMOUNT
EXTENSION DUE
(b PARK FACILITY IMPACT FEE
21 Living Units(residential) @ $2,278.00 per Unit $47,838.00
Less estimated Park Facility Impact Fee Credits
Park Facility Impact Fee $47,838.00 $47,838.00 '
(c)QUIMBY PARKLAND DEDICATION FEE
211 Living Units(residential) @ $1,120.00 per Unit $23,520.00
Less estimated Quimby Parkland dedication Fee Credits
Quimby Parkland Dedication Fee $23,520.00 $23,520.00 '
(d)CITYWIDE REGIONAL STREET CHARGE
1.7988 Adjusted Gross Acres @ $8,361.00 per AG Ac $15,039.77
Less estimated Significant Street Credits
Citywide Street Charge $15,039.771 $15,039.77 '
(e NEW GROWTH AREA MAJOR STREET CHARGE
1.7988 Adjusted Gross Acres @ $18,790.00 per AG Ac $33,799.45
Less estimated Major Street Credits
Major Street Charge $33,799.45 $33,799.45 '
( POLICE FACILITIES IMPACT FEE
211 Living Units(residential) @ $624.00 per Unit $13,104.00
Police Facilities Impact Fee $13,104.00 I $13,104.00 '
( TRAFFICSIGNAL CHARGE
21 Living Units(residential) @ $440.03 per Unit $9,240.63
Less Estimated Traffic Signal Charge Construction Credits $9,240.63
Traffic Signal Charge $0.00 JPald w/Credits '
Fee Due for Lots under Early Issuance of Building Permits Agreement
Water meters paid for Lots under Early Issuance of Building Permits Agreement
Total impact Fees&Charges $232,403.15 $225,473.15
Note: EXTENSION total includes net results of construction credits
SUMMARY
TOTAL(A) MISCELLANEOUS FEES&CHARGES $9,332.41
TOTAL(B) IMPACT FEES&CHARGES $225,473.15
TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $234,805.56
EXHIBIT B v11/01/01 Printed 05/30/08 4:13:14 PM Page 4 of 4
EXHIBIT C
RACT 5901 Street Pian Pagers N/A PW File#11327 FY-08
OTY I UNIT COST INSPECTION. PIAN.CHEC KI UM Comments
Pavement-(Local) 4,0001 $2.25 $9,000 $9,000 Trench for SD pipe
Pavement-(Col lector0 $3.00 $0 $0
Pavement-(Arterial) $4.00 $0 $0
Pavement Express $6.00 $0 $0
Curb&Gutter 0 $8.00 $0 $0
Valley Gutter 0 $3,000 $0 $0
Sidewalk 6,076 $4.00 $24,304 $24,304
E-1 0 $6,000 $0 " Plan Check Fee collected by Traffic Dept.
E-2 $4,000 $0 " Plan Check Fee collected by Traffic Dept.
Safety Light $10,000 $0 " Plan Check Fee collected by Traffic Dept.
Gradin $0 'Plan Check Fee collected by Building Dept.
Handicap Ramp $500 $0 $0
Drive Approach 21 $1,000 $21,000 $21,000 Local DA =$1,000 ;All Others=$3,000
Median curbs 0 $11 $0 $0
Median Cap 0 $5.00 $0 $0
Block Wall $50 $0 ' Plan Check Fee collected by Building Dept.
Landscape 1,224 $3.00 $3,672 $3,672
Stamped Concrete $5.00 $0 $0
AC 7"Temp $3.00 $0 $0
AC Dike $3.00 $0 $0
$0 $0
Totals $57 im , $57,976
Storm Drain $15,180
Street+S.D.Total $73,156
Ins ection Fees Plan Check Fees
Total =$10-$500K $57,976 $57,976 Total=$0-$50K
Total -$10K $47,976 $2,609 Total x 4.5%
Total (-10K)x 3.25% $1,559 $3,108 4.5% +$500
3.25% +$4,836 $6,395 $3,108 Total Plan Fee Due
Insp. Fee Due $6,395 $2,6081 Plan Fee Due -$500 Deposit