HomeMy WebLinkAboutCC Resolution 9543 (Deer Valley Apartments)RESOLUTION NO. 9543
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING EXECUTION OF AN IMPROVEMENT AGREEMENT FOR
THE CONSTRUCTION OF PUBLIC IMPROVEMENTS - DEER VALLEY
APARTMENTS (FORMERLY OAKRIDGE APARTMENTS).
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL hereby resolves as
follows:
The Mayor and City Clerk are hereby authorized to execute on behalf of the City
of San Rafael, an Improvement Agreement with TCR #412 Deer Valley Limited
Partnership, dated June 22, 1995, a copy of which is attached and by this reference made a
part hereof.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, California, hereby
certify that the foregoing resolution was duly and regularly introduced and adopted at a
regular meeting of the Council of the said City held on 5th day of February, 1996, by the
following vote, to wit:
AYES: COUNCILMEMBERS• Heller, Phillips, Zappetini & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Cohen
JEANNE M. LEONCINI, City Clerk
ORIGINAL
�5�3
City of San Rafael California
Improvement Agreement for the
Construction of Public Improvements
THIS AGREEMENT is made and entered into by and between the City of San Rafael (hereinafter
referred to as "City"), and TCR #412 Deer Valley Limited Partnership, (hereinafter referred to as
"Developer").
RECITALS:
Developer has presented to City for approval some Improvement Plans for Construction of Deer
Valley Road.
The plans have been filed with the City Engineer of City for presentation to the City Council of the
City for its approval, which plans are hereby referred to and incorporated herein.
1. Performance of Work
All of the work and improvements and materials shall be done, performed and installed in strict
accordance with the approved plans and specifications for said work on file in the office of the City
Engineer of City, which said plans and specifications and standards are hereby referred to and
adopted and made a part of this agreement. In case there are not any standard specifications of
City for any of said work, it is agreed that the same shall be done and performed in accordance with
the standards and specifications of the State of California Department of Transportation.
Developer will do and perform, or cause to be done and performed, at Developer's own expense, in
a good workmanlike manner, and furnish all required materials, all under the direction and to the
satisfaction of the City Engineer of City, who shall endorse his approval thereon, all of the
following work and improvements related to the Subdivision as shown on the improvements plans
and drawings entitled: " Deer Valley " and subject to the conditions,* requirements and
recommendations as set forth in the reports of the City Engineer and Planning Director, which
reports shall be incorporated herein by reference. Further incorporated herein and made a part
hereof by reference are the appropriate resolutions of the Planning Commission and of the City
Council approving Developer's tentative map. Developer shall also do all work and furnish all
materials which, in the opinion of the City Engineer and on his order, are necessary to complete the
improvements in accordance with the plans and specifications on file as herein before specified, or
with any changes required or ordered by said Engineer, which in his opinion are necessary or
required to complete the work.
2. Soils Engineering Contractor
It is mutually agreed that the City shall determine the soils engineering firm to perform required
soils testing and investigation during the construction of public improvements.
3. Work. Places and Grades to be Fixed by Engineer
COPY
Page l
All of said work is to be done at the places, of the materials, in the manner, and at the grades, all as
shown upon the plans and specifications therefor, approved by the City Engineer and upon which
he has endorsed his approval, and to the satisfaction of the City Engineer.
4. Work. Time for Commencement and Performance
City hereby fixes the time for the commencement of said work to be not later than six (6) months
after date of this agreement, and for its completion to be within 365 calendar days from the date
when the plans are approved by the City Council. At least fifteen (15) calendar days prior to
commencement of work here under, Developer shall notify City Engineer in writing of the date
fixed by Developer for commencement thereof, so that the City Engineer shall be able to provide
services for inspection.
5. Time Is of Essence - Extension
Time is of the essence of this agreement; provided that in the event good cause is shown therefor,
the City Council may extend the time for completion of the improvements here under. Any such
extension may be granted without notice to the Developer's surety, and extensions so granted shall
not relieve the surety's liability on the bond to secure the faithful performance of this agreement.
The City Council shall be the sole and final judge as to whether or not good cause has been shown
to entitle Developer to an extension.
6. Repairs and Replacements
Developer shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes
and monuments shown on the map which have been destroyed or damaged, as the case may be. or
pay to the owner, the entire cost of replacement or repairs, of any and all property damaged or
destroyed by reason of any work done here under, whether such property be owned by the United
States or any agency thereof, or the State of California, or any public agency or political
subdivision thereof, of by the City or by any person whomsoever, or by any combination of such
owners. Any such repair or replacement shall be to the satisfaction, and subject to the approval of
the City Engineer.
7. Utility Deposits. Provision
Developer shall make all deposits legally required by each public utility corporation involved in the
provision of services for the subdivision for the connection of any and all public utilities to be
supplied by such public utility corporation within the subdivision, and shall ensure that utilities are
available to said subdivision prior to final occupancy thereof.
8. Permits. Compliance With Law
Developer shall, at Developer's expense, obtain all necessary permits and licenses for the
construction of such improvements, give all necessary notices and pay all fees and taxes required by
law.
8.5 Improvement Requirements on Land Not Owned by Developer or City
In accordance with Section 66462.5 of the Government Code, the City requires the Developer to
pay the cost of acquiring offsite real property interests required in connection with the subdivision,
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including but not limited to, appraisal fees, title reports, surveying of land to be acquired, witness
fees, attorney fees and all costs of acquisition whether by settlement with property owners or
eminent domain proceedings.
The Developer may secure the performance of this provision by separate improvement security
subject to the approval of the City Attorney.
9. Superintendence by Developer
Developer shall give personal superintendence to the work on said improvement, or have a
competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times
during progress. with authority to act for Developer.
10. Inspection by City
Developer shall at all times maintain proper facilities, and provide safe access for inspection by City
to all parts of the work and to the shops wherein the work is in preparation. The Developer shall
pay overtime incurred by City inspectors whenever the Developer elects to work on Saturdays,
Sundays, and holidays, he shall also pay overtime incurred by City Inspector when Developer
works any overtime hours. The inspection of work shall not relieve the Developer of any of his
obligations to complete the improvements as prescribed. Defective work shall be made good and
unsuitable materials may be rejected. notwithstanding the fact that such defective work and
unsuitable materials may have been previously overlooked and accepted by the City Engineer.
10.5 Inspection by Others
When required by the conditions for approval of the Tentative Map, the City may require the work
or public improvements or part thereof to be inspected by an outside consultant selected by the City
Engineer. The Developer shall be responsible for all fees, costs and expenses for said inspection
services.
11. Improvement Security
Prior to the filing of the application for final map with the City Council, the Developer shall present
to and file with the City of San Rafael a surety company bond in the sum of Four Hundred Ten
Thousand Dollars ( $410,000 )issued by a company duly and regularly authorized to do a general
surety business in the State of California conditioned upon the faithful performance of this
agreement and by its terms made to inure to the benefit of the City of San Rafael. The surety on
said bond and form thereof shall be satisfactory to the City Attorney.
Liability under said bond shall be released upon completion of all work and public improvements to
the satisfaction of the City Engineer as provided by the Subdivision Map Act of the State of
California.
12. Alternate Improvement Security
The Developer may deposit at the time for submission of the bonds mentioned in paragraph 11
above, in lieu of a surety bond, cash in the amount of said required bond with the City Treasurer of
the City as a guarantee for the faithful performance of this agreement. The City Treasurer may
disburse progress payments to the Developer on his order as the work progresses; provided first
that the Developer shall submit a demand for a progress payment and the demand for payment and
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the amount is approved, in writing, by the City Engineer of the City. No progress payment
allowable here under shall be made for more than ninety percent (90%) of the value of any
installment of work and not before each installment of work shall have been completed to the
satisfaction of the City Engineer.
The final payment for the work to be performed under this agreement shall be made 35 days after
formal acceptance of the subdivision by the City upon determination of the City Engineer that all
public improvements required by this agreement have been completed to his full and complete
satisfaction. As the herein above-mentioned deposit is a guarantee for the faithful performance of
this agreement, the City may, upon a breach, default, or violation of any of the provisions of this
agreement resort to the herein above-mentioned deposit for the purposes of taking over the work
and prosecuting the same to completion. Upon breach, default or other violation of this agreement
requiring the City to take over the work, the City Treasurer shall release, to the City Engineer,
upon written demand of the City Engineer, such amount or amounts of the deposit remaining as the
City Engineer estimates is reasonably necessary to complete the work.
In lieu of the surety bond or cash as required by Title 15 of the San Rafael Municipal Code, an
instrument or instruments of credit in the amount of said required bond may be deposited with City
upon condition the financial institution furnishing the credit pledges to the City it has the funds
necessary, that they are on deposit as guarantee for payment of the public improvements required
and that the said funds are held in trust for the purposes set forth in this agreement.
13. Labor and Material Bond (50% of Improvement Cost)
The Developer shall furnish security in the amount of Two Hundred and Five Thousand Dollars
($205,000) securing payment to the contractors, subcontractors, persons renting equipment or
furnishing labor or materials for the public improvements required to be made by this instrument.
The security may be cash, surety bond, or instrument of credit as permitted by the Subdivision Map
Act of the State of California. Such security shall be retained by the City for a period of ninety (90)
days following acceptance of the public improvements by the City or for such other period as may
be required or permitted pursuant to Government Code provisions governing the release of labor
and material bonds for subdivision improvements.
14. Monumentation Bond
Developer shall furnish a bond or cash deposit in the amount of Dollars ($ DNA ) guaranteeing the
payment for installation of permanent monumentation. The monumentation shall be done to the
satisfaction of the City Engineer and shall be completed 365 calendar days from the actual date of
commencement.
15. Maintenance Bondu'�'
Developer shall furnish prior to acceptance of theublic improvements by the City a maintenance
bond in the amount of Two Hundred and Five Dollars ($205,000) guaranteeing said public
improvements for a period of two years from date of acceptance. Issued prior to Certificate of
Occupancy.
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16. Hold Harmless Agreement
Developer hereby agrees to, and shall, hold City, its elective and appointive boards, commissions,
officers, agents, and employees harmless from any liability for damage or claims for damage for
personal injury, including death, as well as from claims for property damage which may arise from
Developer or Developer's contractors, subcontractors, agents, or employees of the Developer's
contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or
acting as agent for, Developer or any of Developer's contractors or subcontractors. Developer
agrees to, and shall, defend, indemnify and hold harmless the City and its elective and appointive
boards, commissions, officers, agents and employees from any suits or actions at law or in equity
for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations.
A. City does not, and shall not, waive any rights against Developer which it may have by reason
of the aforesaid hold harmless agreement, because of the acceptance by City of the deposit
with City by Developer of any of the insurance policies described in paragraph 18 hereof,
B. The aforesaid hold harmless agreement by Developer shall apply to all damages and claims for
damages of every kind suffered, or alleged to have been suffered, by reason of any of the
aforesaid operations, regardless of whether or not City has prepared, supplied or approved of
plans, specifications, or either, for the plans, and regardless of whether or not any insurance
policies shall have been determined to be applicable to any of such damages or claims for
damages.
C. Developer agrees that the use of any and all streets and public improvements herein above
required to be constructed shall be, at all times prior to the final acceptance of the plans by the
City, the sole and exclusive risk of the Developer. The City may, at its sole option, issue
permission to occupy all or a portion of the Public Improvements prior to Final Acceptance of
said Public Improvements. The issuance of any permission to occupy such Public
improvements located within the said plans shall not be construed in any manner to be an
acceptance and approval of any or all of said streets and improvements iri said plans, or that
stage of development of said streets and improvements represented by their conditions at the
time of issuance of said occupancy permit or permits, or any stage of their development
reached between the period commencing with the issuance of any occupancy permit, and the
final acceptance of said plans.
17. Protection of Public Safety
The Developer is obligated to protect the public safety during all phases of the work, and shall erect
and maintain all necessary barricades, signs and warning devices necessary to ensure public
protection. In the event that City discovers a condition on the site which in its determination
constitutes an Immediate danger to public safety, and Developer cannot respond at once, City may
erect any barriers, signs and warning devices it deems necessary. In such event, Developer shall
pay for the labor of City's crews at the rate of thirty-five ($35.00) dollars per hour per man; plus
the cost of any materials used and a reasonable fee for use of any barricades found necessary. In no
event shall Developer pay less than one hour minimum per man assigned if City takes action
pursuant to this paragraph.
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18. Developer's Insurance
Developer shall not commence work under this agreement until Developer shall have obtained all
insurance required under this paragraph and such insurance shall have been approved by the City
Attorney as to form and City Manager as to sufficiency, nor shall Developer allow any contractor
or subcontractor to commence work on his contract or subcontract until all similar insurance
required of the contractor or subcontractor shall have been so obtained and approved. All
requirements herein provided shall appear either in the body of the insurance policies or as
endorsements and shall specifically bind the insurance carrier.
Developer and/or his contractors and/or subcontractors shall procure and maintain for the
duration of the contract insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the work here under by the
Developer, his agents, representatives, employees, contractors or subcontractors.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence from CGY
0001).
2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile
Liability, code 1 (any auto).
3. Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
B. Minimum Limits of Insurance
Developer shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability Insurance or other form with a
general aggregate liability is used, either the general aggregate limit shall apply separately
to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer's Liability: $1,000,000 per accident for bodily injury or disease.
C. Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the
option of the City, either: the insurer shall reduce or eliminate such deductibles or self insured
retentions as respects the City, its officers, officials, employees, and volunteers; or the Developer
shall procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
Page 6
D. Other Insurance Provisions
The general liability and automobile policies are to contain, or be endorsed to contain, the
following provisions:
1. The City, its officers, officials, employees, agents and volunteers are to be covered as
insureds as respects: liability arising out of activities performed by or on behalf of the
Developer; products and completed operations of the Developer, premises owned or used
by the Developer; or automobiles owned, leased, hired or borrowed by the Developer. The
coverage shall contain no special limitations on the scope of protection afforded to the
City, its officers, officials, employees, agents or volunteers.
2. For any claims related to this project, the Developer's insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees,
agents or volunteers shall be excess of the Developer's insurance required and shall not
contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches
of warranties shall not affect coverage provided to the City, its officers, officials,
employees, agents or volunteers.
4. The Developer's insurance shall apply separately to each insured against whom claim is
made or suit is brought except, with respect to the limits of the insured's liability.
Each insurance policy required by this clause shall be endorsed to state that coverage shall
not be suspended, voided, canceled by either party, reduced in coverage or in limits
except after thirty (30) days' prior to written notice by certified mail return receipt
requested, has been given.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than "A".
F. Verification of Coverage
Developer shall furnish the City with original endorsements effecting coverage required by this
clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage
on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to
be received and approved by the City before work commences. As an alternative to the City's
forms, the Contractor's insurer may provide complete, certified copies of all required insurance
policies, including endorsements effecting the coverage required by these specifications.
G. Subcontractors
Developer shall include all subcontractors as insureds under its policies or shall furnish separate
certificates and endorsements for each subcontractor. All coverages for subcontractors shall be
subject to all of the requirements stated herein.
Page 7
19. Title of Improvements
Title to, and ownership of, all improvements constructed here under by Developer shall vest
absolutely in City, upon completion and acceptance of such improvements by City.
20. Repair or Reconstruction of Defective Work
If, within a period of two years after final acceptance of the work performed under this agreement,
any structure or part of any structure furnished or installed or constructed, or caused to be installed
or constructed by Developer, or any of the work done under this agreement fails to fulfill any of the
requirements of this agreement or the specifications referred to herein, Developer shall without
delay and without cost to City, repair or replace or reconstruct any defective or otherwise
unsatisfactory part or parts of the work or structure. Liability under the contracts of surety or
guarantee referred to in paragraphs 11 and 12 of this agreement shall be released upon the
completion of all work and public improvements to the satisfaction of the City Engineer as
provided and permitted by the Subdivision Map Act of the State of California. Should Developer
fail to act promptly or in accordance with this requirement, or should the exigencies of the case
require repairs or replacements to be made before Developer can be notified, City may, at its
option, make the necessary repairs or replacements or perform the necessary work, and Developer
shall pay to the City the actual cost of such repairs plus fifteen percent (15%).
21. Developer Not Agent of City
Neither Developer nor any of Developer's agents or contractors are or shall be considered to be
agents of City in connection with the performance of Developer's obligations under this agreement.
22. Cost of Engineering and Inspection
Developer shall pay to the City all engineering and inspection costs as required by Section
15.20.070 of the San Rafael Municipal Code. Developer shall also pay overtime incurred by the
City Inspector whenever the Developer elects to work overtime or on Saturday, Sunday and
holidays.
23. Notice of Breach and Default
If Developer refuses or fails to obtain prosecution of the work, or any severable part thereof, with
such diligence as will ensure its completion within the time specified, or any extensions thereof, or
fails to obtain completion of said work within such time, or if Developer should be adjudged a
bankrupt, or Developer should make a general assignment for the benefit of Developer's insolvency,
or if Developer, or any of Developer's contractors, subcontractors, agents or employees, should
violate any of the provisions of this agreement, City Engineer or City Council may serve written
notice upon Developer and Developer's surety of breach of this agreement, or of any portion
thereof, and default of Developer.
24. Breach of Agreement. Performance by Surety or City
In the event of any such notice, Developer's surety shall have the duty to take over and complete
the work and improvements herein specified; provided however, that if the surety, within thirty
(30) days after the serving upon it of such notice of breach, does not give City written notice of its
Page 8
intention to take over the performance of the contract and does not commence performance City
may elect to take over the work and prosecute the same to completion, by contract or by any other
method City may deem advisable, for the account and at the expense of Developer, and in such
event, City without liability for so doing, may take possession of and utilize in completing the work,
such materials, appliances, plant and other property belonging to Developer as may be on the site of
the work and necessary therefor. The Developer shall be liable to the City for any excess costs,
claims, damages, liability, or expenses of whatever nature or kind, direct or indirect, including
reasonable attorney fees which are directly or indirectly caused by the execution and enforcement
of this agreement.
25. Notices
All notices herein required shall be in writing and delivered in person or sent by registered or
certified mail, postage prepaid. Notices required to be given shall be addressed as follows:
City:
City Engineer
City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
Developer:
TCR #412 Deer Valley Limited Partnership
591 Redwood Hwy. Ste. 5275
Mill Valley, Ca. 94941
Surety of Developer:
United Pacific Insurance Co.
5660 New Northside Dr. Ste. 400
Atlanta, Georgia 30328
Developer's Insurance Company:
Propertv Casualtv
VESTA Saint Paul Casualty
3760 River Run Dr. 385 Washington St.
Birmingham, AL. 35243 St. Paul, MN 55102
It is provided that any party or the surety may change such address by notice in writing to the other
party and thereafter notices shall be addressed and transmitted to the new address.
26. Binding of Agreement
This agreement shall bind, and the benefits inure to, the respective parties thereto, their legal
representatives, executors, administrators, successors in office or interest, and assigns.
27. Legal Fees
In the event that legal action is necessary to enforce any provision of this agreement, the prevailing
party shall be entitled to reasonable attorney fees and legal costs.
28. Agreement an Offer Until Accepted by City
It is recognized that this agreement executed by the Developer is submitted at the time of
application for approval , and prior to approval of said final plans, and prior to approval of said
final map by the City Council. Until approval and execution of this agreement by City, this
agreement shall constitute an offer and may be withdrawn or modified by Developer, but upon such
withdrawal, and until an executed agreement acceptable to City is submitted, the entire application
for plans shall be considered withdrawn.
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29. Special Conditions
Dated this 77&h day of ✓�' ��
CITY OF SAN RAFAEL:
Albert Boro
Mayor %
ATTEST:
Veanne M. Leoncini
City Clerk
APPROVED AS TO FORM:
Gary T. Ragghianti
City Attorney
APP urwYED AS TO CONTENT:
1V l '.
David M. Bernardi
City Engineer
Page 10
19f)
DEVELOPER
By: ig, ��,; , /,.
William W. Thompson
Title President
TCR Northern California 1993, Inc.
General Partner of
TCR #412 Deer Valley
Limited Partnership