HomeMy WebLinkAboutCC Resolution 12954 (Lands of Phuong Van Nguyen and Tuam Tiet)RESOLUTION NO. 12954
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL APPROVING SUBDIVISION IMPROVEMENT AGREEMENT
FOR THE SUBDIVISION ENTITLED
"PARCEL MAP — BEING A SUBDIVISION OF THE LANDS OF
PHUONG VAN NGUYEN AND TUAN TIET"
BE IT RESOLVED by the Council of the City of San Rafael as follows:
WHEREAS, the Community Development Director of the City of San
Rafael, did on August 25, 2006, approve the tentative map entitled "Parcel Map -- Being a
subdivision of the lands of Phuong Van Nguyen and Tuan Tiet";
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of San Rafael, California, that the Subdivision Improvement Agreement for
said subdivision, approved by the Community Development Director of said City
on August 25, 2006, and entitled "Parcel Map - Being a subdivision of the lands of
Phuong Van Nguyen and Tuan Tiet" is hereby approved, and the Mayor of said
City is authorized to execute the Subdivision Improvement Agreement
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing
resolution was duly and regularly introduced and adopted at a regular meeting of the Council of
said City on the 17`h day of May, 2010, by the following vote, to wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
/iz/ ;ix G . Ae'e'ecc k
ESTHER C. BEIRNE, City Clerk
File No.: Subdivision
City of San Rafael • California
Subdivision Improvement Agreement
THIS AGREEMENT is made and entered into on the 24 a, of May, 2010, by and between
the City of San Rafael (hereinafter referred to as "City"), and Phuong Van Nguyen and
Tuan Tiet, (hereinafter referred to as "Subdivider").
RECITALS:
Subdivider has presented to City for approval a parcel map entitled: "PARCEL MAP,
being a subdivision of the lands of Phong Van Nguyen and Tuan Tiet"
The map has been filed with the City Engineer of City. Which map is hereby referred to
and incorporated herein.
Subdivider has requested approval of the 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, hereinafter
called `Subdivision', designated in the map, all in accordance with, and as required by,
the plans and specifications for all or any of said improvements in, appurtenant to, or
outside the limits of Subdivision, which plans and specifications are now on file in the
office of the City Engineer of the City.
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.
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 stan-
dards 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 specifica-
tions of the State of California Department of Transportation. Subdivider will do and
perform, or cause to be done and performed, at Subdivider'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 im-
provements plans and drawings entitled: "Improvement Plans - 222-224 Belle Avenue"
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 ap-
proving Subdivider's tentative map. Subdivider 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
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 therefore, 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 this agreement is approved by the City Council. At
least fifteen (15) calendar days prior to commencement of work here under, Subdivider
shall notify City Engineer in writing of the date fixed by Subdivider for commencement
thereof, so that the 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 improvements
here under. 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 map which have been destroyed or dam-
aged, 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, 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 in-
volved 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 such improvements, give all necessary notices and pay all fees and
taxes required by law.
8.5 Improvement Requirements on Land Not Owned by Subdivider or City
In accordance with Section 66462.5 of the Government Code, the City requires the
Subdivider to pay the cost of acquiring offsite real property interests required in con-
nection with the subdivision, 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 Subdivider may secure the performance of this provision by separate improvement
security subject to the approval of the City Attorney.
9. Superintendence by Subdivider
Subdivider 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 Subdivider.
Subdivision Agreement • 2
10. Inspection by City
Subdivider shall at all times maintain proper facilities, and provide safe access for in-
spection by City to all parts of the work and to the shops wherein the work is in prepa-
ration. The Subdivider shall pay overtime incurred by City inspectors whenever the
Subdivider elects to work on Saturdays, Sundays, and holidays, he shall also pay over-
time incurred by City Inspector when Subdivider works any overtime hours. The in-
spection of work shall not relieve the Subdivider 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 consul-
tant selected by the City Engineer. The Subdivider shall be responsible for all fees, costs
and expenses for said inspection services.
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 Fifteen
Thousand Dollars ($15,000.00) 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.
Liability under said bond shall be released upon completion of all work and public im-
provements to the satisfaction of the City Engineer as provided by the Subdivision Map
Act of the State of California.
12. Alternate Improvement Security
The Subdivider may deposit at the time for submission of the bonds mentioned in para-
graph 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 agree-
ment. The City Treasurer may disburse progress payments to the Subdivider on his or-
der 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 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 com-
pleted 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.
Subdivision Agreement • 3
13. Labor and Material Bond (50% of Improvement Cost)
The Subdivider shall furnish security in the amount of Seventy Five Hundred Dollars
($7,500.00) 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 permit-
ted pursuant to Government Code provisions governing the release of labor and
material bonds for subdivision improvements.
14. Monumentation Bond N/A
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 prop-
erty damage which may arise from Subdivider or Subdivider's contractors, subcontrac-
tors, 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. 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 the deposit with City by Subdivider of any of the insurance policies de-
scribed 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 subdivi-
sion, and regardless of whether or not any insurance policies shall have been de-
termined 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
herein above required to be constructed shall be, at all times prior to the final ac-
ceptance of the subdivision by the City, 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 Public Improvements prior to Final Acceptance of said Public
Improvements. The issuance of any permission to occupy such Public
Improvements located within the said subdivision shall not be construed in any
manner to be an acceptance and approval of any or all of said streets and im-
provements in said subdivision, or that stage of development of said streets and
improvements represented by their conditions at the time of issuance of said occu-
pancy permit or permits, or any stage of their development reached between the
period commencing with the issuance of any occupancy permit, and the final ac-
ceptance of said subdivision.
17. Protection of Public Safety
The 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 neces-
sary 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 de-
vices it deems necessary. In such event, Subdivider 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
Subdivision Agreement • 4
event shall Subdivider pay less than one hour minimum per man assigned if City takes
action pursuant to this paragraph.
18. 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 specifica-
tions 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%).
19. Subdivider Not Agent of City
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be consid-
ered to be agents of City in connection with the performance of Subdivider's obligations
under this agreement.
20. Cost of Engineering, Inspection and other fees
Subdivider shall pay to the City all engineering and inspection costs as required by
Section 15.11.040 of the San Rafael Municipal Code and condition number 4 of the
Community Development Director's approval requires the subdivider to pay In lieu
parkland dedication fee as shown. Subdivider shall also pay overtime incurred by the
City Inspector whenever the Subdivider elects to work overtime or on Saturday, Sunday
and Holidays.
Plan Check Fees
$ 596.73
Construction Inspection Fees
$ 492.30
Parcel Map Check Fee
$ 571.00
In Lieu Parkland Dedication Fee
$1.967.97
Total
$3,628.00
Amount Paid in 2008
-$1,761.00
Balance Due
$1,867.00
21. 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 as-
signment 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.
Subdivision Agreement • 5
22. 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 contract
and does not commence performance City may elect to take over the work and prose-
cute the same to completion, by contract or by any other method City may deem advis-
able, 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 therefor. The Subdivider shall be liable to the City for
any excess costs, claims, damages, liability, or expenses of whatever nature or kind, di-
rect or indirect, including reasonable attorney fees which are directly or indirectly
caused by the execution and enforcement of this agreement.
23. 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.
24. 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.
IN WITNESS VMEREOF, the parties have executed this Agreement as of the day,
month and year first above written.
CITY OF N RAFAEL:
�4c
A e Oro
Mayo
ATTEST:
Esther C. Beirne
City Clerk
APPROVED AS TO FORM:
cl
Robert F. Epstein
City Attorney
APPRO,VE-0-4S 10 CC�NTENT:
21
�recar of Public Works/City Engineer
SUBDIVIDERO
By: Ph.qq.nq Van Nguyen
Title: Owner
and
By: Tuan Tiet
Title: Owner
Subdivision Agreement - 6