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PW 51 Gold Hill Grade Subdivision Impr AgrCity of San Rafael • California Subdivision Improvement Agreement THIS AGREEMENT is made and entered into as of the 17th day of April, 2017, by and between the City of San Rafael (hereafter, the "City"), and Martin J. Covne (hereafter, the "Subdivider"). RECITALS: A. Subdivider is developing a subdivision called 51 Gold Hill Grade, San Rafael, California (hereafter, the "Subdivision"). B. Subdivider has presented to City for approval a parcel map entitled: Parcel Map 51 Gold Hill Grade (hereafter, the "Parcel Map"). C. The Parcel Map has been filed with the City Engineer and City Clerk of the City. D. Subdivider has requested approval of the Parcel Map prior to the construction and completion of improvements, including all streets, highways or public or private ways and public utility facilities which are a part of, or appurtenant to, the Subdivision as designated in the Parcel Map (hereafter, the "Subdivision Improvements"), all in accordance with, and as required by, the plans and specifications for said improvements, entitled "Improvement Plans 51 Gold Hill Grade", dated September 2016 (the "Improvement Plans), on file in the office of the City Engineer of the City. E. This agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Title 15 of the San Rafael Municipal Code. NOW, THEREFORE, the parties agree as follows: 1. Performance of Work Subdivider shall furnish all required materials for, and shall perform or cause to be performed, at Subdivider's own expense and in a good workmanlike manner, all of the work and improvements related to the Subdivision as shown on the Improvement Plans. All of the work and improvements and materials shall be performed and installed in strict accordance with the Improvement Plans; provided that 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. Subdivider shall also perform and supply such additional work and materials which, in the opinion of the City Engineer and on his order, are necessary to complete the improvements in accordance with the Improvement Plans, or with any changes to the Improvement Plans ordered by said Engineer as necessary or required to complete the work. All such work shall be subject to the conditions, requirements and recommendations as set forth by the San Rafael City Council Resolution No. 14309 adopted at the regular meeting of the City Council held on the 17th of April 2017, and shall be performed under the direction and to the satisfaction of the City Engineer of City. 2. Soils Engineering Contractor It is mutually agreed that the City shall determine the soils engineering firm to perform required soils testing and investigation, at the Subdivider's sole expense, during the construction of the Subdivision Improvements. Subdivision Agreement • 1 3. Work. Places and Grades to be fixed by Engineer 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 Improvement Plans and to the satisfaction of the City Engineer. 4. Work. Time for Performance City hereby fixes the time for the completion of the Subdivision Improvements to be within two (2) vears from the date when this agreement is approved by the City Council. At least fifteen (15) calendar days prior to commencement of work hereunder, Subdivider shall notify City Engineer in writing of the date fixed by Subdivider 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 therefore, the City Council may extend the time for completion of the Subdivision Improvements hereunder pursuant to San Rafael Municipal Code Section 15.11.130. Any such extension may be granted without notice to the Subdivider'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 Subdivider to an extension. 6. Repairs and Replacements Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes and monuments shown on the Parcel Map which have been destroyed or damaged, as the case may be, or shall pay to the owner(s) thereof, the entire cost of replacement or repairs, of any and all pipes and monuments damaged or destroyed by reason of any work done hereunder, whether such pipes and monuments be owned by the United States or any agency thereof, or the State of California, or any public agency or political subdivision thereof, or 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 Subdivider 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 Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of the Subdivision Improvements, and shall give all necessary notices and pay all fees and taxes required by law. 9. Superintendence by Subdivider Subdivider shall give personal superintendence to the work on the Subdivision Improvements, 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 Subdivider. 10. Inspection by City Subdivider 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 Subdivider shall pay overtime incurred by City inspectors whenever the Subdivider elects to work on Saturday, Sundays, and holidays, and he shall also pay overtime incurred by any City inspector when Subdivider works any Subdivision Agreement • 2 overtime hours. The inspection of work shall not relieve the Subdivider of any of his obligations to complete the Subdivision 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. 11. Improvement Security Prior to the filing of the Parcel Map by the City Engineer, the Subdivider shall present to and file with the City of San Rafael a surety company bond in the sum of One Hundred Sixty Three Thousand, Seven Hundred and Seventy Five Dollars ($163,775.00) 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. 12. Alternate Improvement Security Subdivider 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 Finance Director of the City as a guarantee for the faithful performance of this agreement. The City Finance Director may disburse progress payments to the Subdivider on his order as the work progresses; provided first that the Subdivider shall submit a demand for a progress payment and the demand for payment and the amount is approved, in writing, by the City Engineer of the City. No progress payment allowable hereunder 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 improvements required by this agreement have been completed to his full and complete satisfaction. As the hereinabove -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 hereinabove -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 Finance Director 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) Subdivider shall furnish security in the amount of Eighty One Thousand, Eight Hundred and Eighty Eight Dollars ($81,888.00) securing payment to the contractors, subcontractors, persons renting equipment or furnishing labor or materials for the Subdivision Improvements. 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 Subdivision 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 N/A Subdivision Agreement • 3 15. Maintenance Bond N/A 16. Hold Harmless Agreement Subdivider 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 Subdivider or Subdivider's contractors, subcontractors, agents, or employees of the Subdivider's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Subdivider or any of Subdivider's contractors or subcontractors arising out of Subdivider's performance of its obligations or conduct of its operations under this Agreement. Subdivider 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 Subdivider which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by City of any of the insurance policies described in paragraph 18 hereof. B. The aforesaid hold harmless agreement by Subdivider 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 Subdivision, 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. Subdivider agrees that the use of any and all streets and public improvements hereinabove required to be constructed shall be, at all times prior to the final acceptance of the subdivision by the City, at the sole and exclusive risk of the Subdivider. The City may, at its sole option, issue permission to occupy all or a portion of the Subdivision Improvements prior to final acceptance of said Subdivision Improvements. The issuance of any permission to occupy the Subdivision Improvements located within the Subdivision shall not be construed in any manner to be an acceptance and approval of any or all of the streets and improvements in Subdivision, 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 the Subdivision. 17. Protection of Public Safety Subdivider 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 Subdivider cannot respond at once, City may erect any barriers, signs and warning devices it deems necessary. In such event, Subdivider shall pay for the labor of City's crews as specified on the latest fully -burdened rate schedule at the time the work is performed, per worker; plus the cost of any materials used and a reasonable fee for use of any barricades found necessary. In no event shall Subdivider pay less than one hour minimum per worker assigned if City takes action pursuant to this paragraph. 18. Insurance Subdivision Agreement • 4 A. Scope of Coverage. During the term of this Agreement, Subdivider shall maintain, at no expense to City, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. Worker's compensation as required by the State of California, with statutiory limits, and employer's liability insurance with limits of no less than one million dollaras ($1,000.000) per accident for bodily injury or disease. Subdivider's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against City. B. Other Insurance Requirements. The insurance coverage required of the Subdivider in subparagraph A above shall also meet the following requirements: 1. The commercial general liability insurance policies shall be specifically endorsed to include the City, its officers, agents, employees, and volunteers, as additionally named insureds under the policy. 2. The additional insured coverage under the commercial general liability insurance policies shall be primary with respect to any insurance or coverage maintained by City and shall not call upon City's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in the Subdivider's policy shall be at least as broad as ISO form CG20 0104 13. 3. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the City. 4. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 5. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 6. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 7. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; Subdivision Agreement • 5 or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR'S. Any deductibles or self-insured retentions in Subdivider's insurance policies must be declared to and approved by the City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or City or other additional insured party. At City's option, the deductibles or self-insured retentions with respect to City shall be reduced or eliminated to City's satisfaction, or Subdivider shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. Subdivider shall provide to the City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. City reserves the right to obtain a full certified copy of any insurance policy and endorsements from the Subdivider. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by the City Attorney. 19. 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 Subdivider, 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, Subdivider 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 Subdivider 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 Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Subdivider shall pay to the City the actual cost of such repairs plus fifteen percent (15%). 20. Subdivider Not Agent of City Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this agreement. 21. Cost of Engineering, Inspection and Other Fees Subdivider shall pay to the City all costs as required by Section 15.11.040 of the San Rafael Municipal Code. Subdivider shall also pay overtime incurred by the City's inspector whenever the Subdivider elects to work overtime or on Saturday, Sunday and Holidays. Parcel Map Plan Check Deposit $3,285.00 Improvement Plan Check Fee $2,615.00 Improvement Inspection Fee $1,464.00 Total $7,364.00 Additional Fees Due Prior to Recordation of Parcel Map: Parkland Dedication Fee $5,903.93 Subdivision Agreement • 6 22. Notice of Breach and Default If Subdivider 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 Subdivider should be adjudged a bankrupt, or Subdivider should make a general assignment for the benefit of Subdivider's insolvency, or if Subdivider, or any of Subdivider's contractors, subcontractors, agents or employees, should violate any of the provisions of this agreement, City Engineer may serve written notice upon Subdivider and Subdivider's surety of breach of this agreement, or of any portion thereof, and default of Subdivider. 23. Breach of Agreement. Performance by Surety or City In the event of any such notice, Subdivider'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 intention to take over the performance of the agreement 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 Subdivider, 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 Subdivider as may be on the site of the work and necessary therefore. The Subdivider 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. 24. 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. 25. 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. CITY OF SAN RAFAEL: SUBDIVID Bv: Jim,'ch ttz Martin Coyn� City _ nager Owner ATTEST: ,*-o,4� Esther C. Beirne City Clerk Subdivision Agreement • 7 AP ROVED AS TO FORM: Robert F. Epstein City Attorney APPROVED AS TO CONTENT: Kevin McGowan Assistant Public Works Director/City Engineer Subdivision Agreement • 8 �jl�loc��UlS1C'ih ' W�rmUZWv�^Y IS► CA C-, APR 1 1 2011 CIT_ Y_ ATTORNEY CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works `- Y/J./,7 Project Manager: Kevin McGowan/Josh Minshall Extension: 3158 Contractor Name: Martin J. Coyne Contractor's Contact: Ray Cassidy Contact's Email: marinplastering@sbcglobal.net�—vz ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor i.:lrcl-� here to ❑ enter a date. b. Email contract (in Word) & attachments to City 3/29/2017 Atty c/o Laraine.Gittens@cityofsanrafael.org ❑ 2 City Attorney a. Review, revise, and comment on draft agreement 4/7/2017 and return to Project Manager 4/6/2017 M ETD b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ® ETD 3 Project Manager Forward three (3) originals of final agreement to 4/7/2017 ❑ contractor for their signature 4 Project Manager When necessary, * contractor-siened agreement ❑ N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or ❑ Public Works Contract > $125,000 Date of Council approval en dale. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 4/10/2017 Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed 7 agreement 7 City Attorney Review and approve insurance in PINS, and bonds 7 LLA (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official V 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager