Loading...
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, Page 2 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 Page 3 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. Page 4 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. Page 5 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. Page 9 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