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HomeMy WebLinkAboutT-5966 - Agreement/Covenant - 9/27/2010 WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Fresno, CA 93721-3603 0912212010,20100124311 NO FEE-Government Code 6103 City of oILL O PUBLIC WORKS DEPARTMENT V 2600 Fresno Street W Fresno, California 93721-3616 4 (559) 621-8650 W P.W. File No. 11500 SUBDIVISION AGREEMENT FINAL MAP OF TRACT NO. 5966, Phase 1 of Vesting Tentative Map No. 5966/UGM Subdivision Agreement Final Map of Tract No. 5966 Page 2 "FH IS AGREEMENT is made this RP day of S Ep r CMjZ&Gr,, 20 10 , by and between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City," and, BN Hudson Ranch L.P., a California Limited Partnership,7030 North Fruit Avenue,Suite#101, Fresno, CA 93711, hereinafter designated and called the"Subdivider,"without regard for number or gender. RECITALS A. The Subdivider has filed with the City, a Final Map which proposes the subdivision of land owned by Subdivider, situated in the City of Fresno, County of Fresno, State of California, dividing the real property more particularly described as follows: Lots 1 through 106, inclusive, and Outlots A and B of Tract No. 5966 according to the Final Map thereof recorded on , 20 10 in Volume of Plats at Page(s) b°1 -t , Fresno County Records. B. The City requires, as a condition precedent to the acceptance and approval of the Final Map, the dedication of such streets, highways and public places and easements as are delineated and shown on the Final Map, and deems the same as necessary for the public use, and also requires that any and all streets delineated and shown on the Final Map shall be improved by the construction and the installation of the improvements hereinafter specified. C. Section 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. 5966 dated February 17, 2010 issued by the City and any amendments thereto and the Conditions of Approval for Conditional Use Permit No. C-09-280 dated February 17, 2010 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 Subdivision Agreement Final Map of Tract No. 5966 Page 3 the Final Map which may ripen into a fee have subordinated to this instrument and that all such instruments of subordination, if any, are attached hereto and made a part of this instrument. AGREEMENT In consideration of the acceptance of the offers of dedication of the streets, highways, public ways, easements and facilities as shown and delineated on the Final Map, and in consideration of finding of substantial compliance with said Tentative Map, it is mutually agreed and understood by and between the Subdivider and the City, and the Subdivider and the City do hereby mutually agree as follows: 1. The Subdivision is subject to the following: a. The work and improvements shall be performed hereinafter specified on or before one (1) year of the date of this agreement, except as noted below. b. The 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 occupancywill 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 Subdivision Agreement Final Map of Tract No. 5966 Page 4 a period justified by the effect of such delay on the completion of the work. The Subdivider shall file a written request for a time extension with the Director of Public Works prior to the above noted date, who shall ascertain the facts and determine the extent of justifiable delays, if any. Extension of time for completion of improvements. (including street trees planting)may be granted by the Public Works 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 Subdivision Agreement Final Map of Tract No. 5966 Page 5 adopted by Council prior to the actual installation of the lights and shall be approved by the City Engineer. Notwithstanding the preceding conditions, no access from the subdivision will be permitted to Chestnut Avenue until such time that the traffic signal at the International/Chestnut intersection is installed and operational. 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, oras 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. 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 Subdivision Agreement Final Map of Tract No. 5966 Page 6 deposit, the Subdivider shall be billed by the City of Fresno for the difference and shall be directly responsible for payment. i. The Subdivider shall install and maintain the fencing/walls, landscaping, irrigation system and certain miscellaneous improvements in accordance with the approved improvement plans (i.e., Landscape and Irrigation Plans, Grading Plans), within the designated easements or areas required in the Conditions of Approval and delineated on the Final Map. The improvement plans for such landscaping, irrigation system and miscellaneous improvements shall be prepared by a licensed Landscape Architect, certified irrigation designer or other persons with landscaping and irrigation design expertise acceptable to the Planning and Development Director, except that for improvements to be maintained by a City Community Facilities District("CFD"), such improvement plans shall be approved by the City Engineer. j. Perform and construct all work shown on the following construction plans and any amendments thereto, unless specifically omitted herein. i. City Drawing Nos: 10-C-11013 through 10-C-11018 inclusive(sewer and water), 15-C-15961 through 15-C-15973 inclusive(street),and 4-C-1280 (street lighting). ii. Fresno Metropolitan Flood Control District Drawing Nos: DE-23-1 and DE-23-2. 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 Fresno Municipal Code provisions, the total fees and charges due as a condition of Final Map approval. The total fees and charges are more particularly itemized and made a part of this agreement in the attached Exhibit"B." I. In connection with the amounts set forth in Exhibits "A" and "B", the City has Subdivision Agreement Final Map of Tract No. 5966 Page 7 made its best faith efforts at predicting the amounts to be credited as reimbursements for Improvements that will benefit other properties. Because the subject Improvements have not been completed at the time of execution of this Agreement, the actual cost of construction is not yet known. Some degree of reasonable estimation is incorporated into the calculations. Subdivider agrees that these figures represent City's best estimates only and that they are subject to fluctuation following calculation of actual construction costs after improvement completion and acceptance. It is further subject to Subdivider's submission and City review of a financial accounting which sets forth those actual costs, and the application, by City, of all relevant Fresno Municipal Code provisions which relate to the Subdivider's payment of fees and reimbursement thereto. This would include any pertinent provisions contained within City's Master Fee Schedule which would also apply to the payment of fees or reimbursements. M. With regard to fee credits including those referenced above and herein, Subdivider may receive designated fee credits from the City as offsets toward a UGM or development impact fee for construction of certain required infrastructure improvements either as a part of this Agreement or at some-future date. With regard to the amounts to be credited as referenced above, Subdivider acknowledges and agrees any such fee credits are provided contingent upon the City accepting required infrastructure improvements completely installed by Subdivider. Until then, and notwithstanding any other provision, Subdivider expressly agrees Subdivider has no right to any portion of any fee credit and the Director of Public Works for the City, in the Director's sole discretion, may unilaterally amend this Agreement effective upon mailed notice to Subdivider to adjust (including adding, reducing or removing) credits at any time prior to acceptance of all required infrastructure improvements by City. Upon adjustment, Subdivider shall pay in full any UGM or development impact fees, due from modification of the fee credit, prior to approval of the subdivision map or as may be deferred by a fee deferral covenant. If the subdivision map has already been approved and there is no applicable fee deferral covenant, all such fees shall be promptly paid by Subdivider. The City may enforce recovery of such fees in any manner available at law or in equity, including but not limited to private foreclosure and sale of the property in the manner provided in Section 2924 of the California Civil Code or successor statute. n. The Subdivider shall disclose to the prospective buyers of lots 16, 17,and 37 Subdivision Agreement Final Map of Tract No. 5966 Page 8 through 55, inclusive, that the private ditch within the limits of the Final Map was relocated and piped as noted on the Final Map 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 City's Controller. 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 Subdivision Agreement Final Map of Tract No. 5966 Page 9 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 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 Subdivision Agreement Final Map of Tract No. 5966 Page 10 of the Fresno Municipal Code, said warranty security shall be in the form of cash or a Certificate of Deposit. The warranty security shall be released, less any amount required to be used for fulfillment of the warranty, one (1)year after final acceptance of the subdivision Improvements. 9. This Agreement shall in no way be construed as a grant by the City of any rights to -the Subdivider to trespass upon land rightfully in the possession of, or owned by, another,whether such land be privately or publicly owned. 10. Indemnification. 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 attorneys fees and litigation expenses), arising or alleged to have arisen directly or indirectly out the construction or installation of any structures or improvements on the Subject Property, or the maintenance of the Subject Property. 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 an ss, S"Oss RP liability, fines, penalties, forfeitures, costs or damages caused by the active oreelrnegl ence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Subdivider should subcontract all or any part of the construction or installation of structures or improvements on the Subject Property, or the maintenance of the Subject Property, Subdivider shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, a is and volunteers in accordance with the terms of the preceding paragraph in this Section Potwithstanding 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 Subdivision Agreement Final Map of Tract No, 5966 Page 11 !O indemnity requirements set forth in the preceding paragraph of this Section 0, 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 anytime and property damage),and from any and all claims,demands and actions in law or equity(including reasonable attorneys 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. 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. 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. Subdivision Agreement Final Map of Tract No. 5966 Page 12 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 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 five (5) year discovery period, or(ii)the coverage shall be maintained for a minimum of five (5)years following the termination of this Agreement and the requirements of this section relating to such coverage shall survive termination or expiration of this Agreement. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers,officials, Subdivision Agreement Final Map of Tract No. 5966 Page 13 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 relieve from liability nor limit the liability of Subdivider, its principals, officers, agents, employees, persons under the supervision of Subdivider, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them. If at any time during the life of the Agreement or any extension, Subdivider fails to maintain the required insurance in Full force and effect,the Director of Public Works,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 Subdivision Agreement Final Map of Tract No. 5966 Page 14 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 complywith Street, Plumbing, Building, Electrical,Zoning Codes and any other codes or ordinances of the City. 15. It shall be the responsibility of the Subdivider to coordinate all work done by his contractors and subcontractors, such as scheduling the sequence of operations and the determination of liability if one operation delays another. In no case shall representatives of the City be placed in the position of making decisions that are the responsibility of the Subdivider. It shall 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, Subdivision Agreement Final Map of Tract No. 5966 Page 15 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, anywork done in the absence of the City Engineer will be subject to rejection. The inspection of the Improvements shall not relieve the Subdivider of any obligation to fulfill the Agreement as prescribed. Defective work shall be made good,and unsuitable materials may be rejected, notwithstanding the fact that such defective work and unsuitable materials have been previously overlooked by the City Engineer or City Inspector and accepted. 17. Adequate dust control shall be maintained by the Subdivider on all streets within and without the subdivision on which work is required to be done under this Agreement from the time work is first commenced in the subdivision until the paving of the streets is completed. "Adequate dust control" as used herein shall mean the sprinkling of the streets with water or the laying of an approved dust palliative thereon with sufficient frequency to prevent the scattering of dust bywind or the activity of vehicles and equipment onto any street area or private property adjacent to the subdivision in strict compliance with all rules and regulations established by the San Joaquin Valley Air Pollution Control Board. Whenever in the opinion of the City Engineer adequate dust control is not being maintained on any street or streets as required by this paragraph, the City Engineer shall give notice to the Subdivider to comply("Notice to Comply")with the provisions of this paragraph forthwith. If in the opinion of the City Engineer the Subdivider's failure to comply with the provisions of this paragraph is having an immediate and significant impact on the public's health, safety and welfare, the City Engineer may immediately issue a stop work order until the City receives reasonable assurances that the Subdivider shall comply with the provisions of this paragraph forthwith. Such notices and stop-work orders may be personally served upon the Subdivider or, if 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 Subdivision Agreement Final Map of Tract No. 5966 Page 16 Notice to Comply and within twenty-four (24) hours after such personal service of such notice or within forty-eight (48) hours after the mailing thereof as herein provided, the Subdivider shall not have commenced to maintain adequate dust control or shall at any time thereafter fail to maintain adequate dust control, the City Engineer may, without further notice of any kind, cause any such street or streets to be sprinkled or oiled, as it may deem advisable to eliminate the scattering of dust, by equipment and personnel of City or by contract as the City Engineer shall determine, and the Subdivider agrees to pay to City forthwith, upon receipt of billing therefore, the entire cost to City of such sprinkling or treating. When the surfacing on any existing street is disturbed, this surfacing shall be replaced with temporary or permanent surfacing within fourteen(14)calendar days,and the roadway shall be maintained in a safe and passable condition at all times between the commencement and final completion, and adequate dust control shall be maintained during these operations. 18. Concrete curbs and gutters, the sanitary sewer system and house connections, together with water mains, gas mains, and their respective service connections, and all other facilities required to be installed under ground shall be completed in the streets and alleys before starting the street and alley surfacing. 19. Time is of the essence of this Agreement, and the same shall bind and inure to the benefit of the parties hereto, their successors and assigns. 20. No assignment of this Agreement or of any duty or obligation of performance hereunder shall be made in whole or in part by the Subdivider without the written consent of City. 21. In addition to the following Covenants Affecting Land Development:: a. CFD Landscape Maintenance b. Providing Special Solid Waste Disposal Services for Certain lots c. Deferring Certain Sewer Connection Charges, Water Connection Charges, Subdivision Agreement Final Map of Tract No. 5966 Page 17 Urban Growth Management Fees, City-wide fees, and Development Fees as referenced on the Final Map and this Agreement, Subdivider shall comply with all of the Conditions of Approvals that it has not already fully complied with as of the date of the approval of the Final Map and which are not otherwise set forth in this Agreement, including but not limited to, any condition to convey to a specific party a fee interest or easement in any parcels, upon Subdivider's completion of all required improvements to said parcels. Subdivider's compliance with such conditions shall be completed within a reasonable time, as determined by the City, after receiving written notice from the City Engineer of the outstanding condition or term with which the Subdivider is required to comply. 22. In performing its obligations set forth in this Agreement, Subdivider shall complywith all applicable laws, regulations,and rules of the governmental agencies having jurisdiction including, without limitation, applicable federal and state labor standards and environmental laws and regulations. Subdivider, not the City, is responsible for determining applicability of and compliance with all local, state, and federal laws including, without limitation,the California Labor Code, Public Contract Code, Public Resources Code, Health&Safety Code, Government Code,the City Charter, and Fresno Municipal Code. The City makes no representations regarding the applicability of any such laws to this Agreement, the project, or the parties' respective rights or obligations hereunder including,without limitation, payment of prevailing wages, competitive bidding,subcontractor listing, or other matters. City shall not be liable or responsible, in law or equity, to any person for Subdivider's failure to comply with any such laws, whether the City knew or should have known of the need for Subdivider to comply, or whether the City failed to notify Subdivider of the need to comply. The Subdivider is referred to the City's Department of Public Works, Construction Management Division to obtain the current prevailing wage rates, to the extent said rates are applicable to the construction of any of the Improvements. Subdivision Agreement Final Map of Tract No. 5966 Page 18 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, 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 Final Map of Tract No. 5966 Page 19 The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO, SUBDIVIDER a Municipal Corporation BN Hudson Ranch L.P., Public Works Department a California Limited Partnership. Patrick Wiemiller, Director By: Bonadelle Homes, Inc., a California Cor tion as the sole enera Partner By: By. Scott Mozier, P.E., Assist Director hn A. Bonadelle, President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney r By: S nn' Chaffin De uty C y Attorney Date: G (Attach Notary Acknowledgments) STATE OF CALIFORNIA, COUNTY OF Fresno On August 31, 2010 , before me, Arora M. Pffm , a Notary Public, personally appeared Jdn A. Frxadel l e who proved to me on the basis of satisfactory evidence to be the personV whose name is/ar.c..subscribed to the within instrument and acknowledged to me thathe/s4@4h executed the same in his/hp4 ,authorized capacity(, and that by his/1efr- signature(s�on the instrument the personV), 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. (Notary seal or stamp) WITNESS my hand and official seal. Signature ANNA M. RENNA ` COMM.#1759837 NOTARY PUBLIC.CALIFORNIA �` • FRE5N0 COUNTY + F w My Comm.Expires A,ug.30,2011 CLERK'S CERTIFICATION State of California ) County of Fresno ) On September 16, 2010 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Scott Mozier, PE, Assistant Director, Public Works Department, who proved to me on the basis of satisfactory evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal REBECCA E. KLISCH, CMC City Clerk, City of Fresno Of xq�a o By JLittY e 4 ` Deputy 'o, �rEO OCT.\R SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on May 3, , 2010, in the office of the Fresno County Recorder,as Document No. 2010-0056413 of which the Deed of Trust in, by and between BN HUDSON RANCH L.P.,A CALIFORNIA LIMITED PARTNERSHIP as Trustor, FIRST AMERICAN TITLE INSURANCE COMPANY as Trustee and HOUSING CAPITAL COMPANY,A MINNESOTA PARTNERSHIP , 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. 5966, Phase 1 of Vesting Tentative Map No. 5966. DATED: August 1,7,2010 BENEFICIARY Jason bia Vice President Housing Capital Company By: (Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ✓J On <7 Z6/abefore me, / (� , Date Here Insert Name and Title of the Office personally appeared d' Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person() whose name(a) is/afe subscribed to the within instrument and acknowledged to me that he/s4eAbW executed the same in his/4e##;l4_* authorized capacity(+es), and that by his/14eFAH Fr signature(&) on the RM I It o HAROLD instrument the person(e), or the entity upon behalf of Com11111—fton * 1701479 which the persons) acted, executed the instrument. Are irofory ftbBo -Collfomlo FFOM County I certify under PENALTY OF PERJURY under the laws iWvVconw6"n0d28.2D10_1 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑ General _ ❑ Partner—❑ Limited ❑ General _ ❑ Attorney in Fact • ❑Attorney in Fact . • ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827 EXHIBIT A Subdivision Agreement for Tract 5966 A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES Water System Construction Cost Estimate $169,750 Sewer System Construction Cost Estimate $159,180 Storm Drain Construction Cost Estimate $116,800 Street Construction Cost Estimate $1,496,284 Final Cost Estimate (for Inspection Fee purposes) $1,942,014 J 292 Landmarks, Monuments, Lot& Block Corners ($50/ea) $14,600 Sub-Total (for bonding purposes) $1,956,614 Construction Contingency(10%) $195,661 TOTAL COST ESTIMATE* (for improvement securities purposes) $2,152,275 $2,152,000 *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 $2,044,000 5% of amount shall be in cash or a Certificate of Deposit made payable to the City of Fresno. 1 $108,000 Payment Security (50% of Total Cost Estimate) 100% of amount shall be in the form of a bond by duly authorized corporate sureties or irrevocable letter of credit $1,076,000 Faithful Performance Security to Guarantee Completion of Plans Street Plans $0 Utility Plans (Sewer.Water, Storm Water) $0 Street Light Plans $0 Landscaping/Irrigation/Walls $0 100% of amount shall be in cash or a Certificate of Deposit I $0 C. WARRANTY SECURITY REQUIREMENT*(due as condition of acceptance of the work) 5% of first$50,000 of the Total Cost Estimate $3,000 3% of next$50,000 $2,000 1% of next$400,000 $4,000 0.5% of amount over$500,000 1 $8,300 Minimum amount I $17,300 EXHIBIT A v4/28/00 Prepared By: Frank Date: 08/20/10 Print Date:08/20/10 2:58:10 PM Page 1 of 1 0 rn m a u U Q W a M D ❑ U U O O �a)❑K ❑J W ❑�a m F- w z � Ow g LL Q W O O l0 lO f0 O N f"7 O f'1 Z 69 v � � .0 N h N r W co Ln m < E!i 69 t0 ffl f` LU LU z o O Lo m 0 o Lo o cn O O C C C O C O Z O O O n O n O 69 v Ln v Ln co to U N P% IQ N P W Z (7 C7 co Ln CO '^ W 69 69 609 69 � v J W O ♦y O d d ID N N r y w N U- CL a c N J a C tU LsC N m d N .� a � a N n U a O h O O O O O O O O O Lp O O O O O O O O LL O T d fO'7 n n N cn OI NO y 6�9 'E•+ m rn m 6� 6) 69 V9 a CF; to in 'o w U aU a U o Ud U) Q1 z w _ LL, u 0 v N Q O O �'m �' W a O d etf 66e `m E `m y Ln a0 f.. 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