HomeMy WebLinkAboutPW Peacock Gap Median Improvementsaft
Agenda Item No: 16
Meeting Date: Oct. 5, 2009
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: Manager Approval:
,, Director of Public Works (NM)
SUBJECT: RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE
AN AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS
IN CERTAIN MEDIANS AND OTHER LANDSCAPE AREAS IN THE CITY RIGHT OF
WAY IN THE PEACOCK GAP HOMEOWNER ASSOCIATION NEIGHBORHOOD.
RECOMMENDATION: Adopt Resolution
BACKGROUND:
Due to a variety of reasons, such as the budget cuts and droughts, the maintenance of traffic medians
throughout the City has been reduced or cut since the midl990's. The Public Works' Parks Division has
been able to provide minimal annual maintenance to ensure public safety by providing adequate line of
sight and weed abatement near the intersections. They also have been annually trimming vegetation for
all medians. In many medians in the City the water was turned off in the mid -1990's and has not been
turned on since then, resulting in unsightly medians. The very limited landscaping that exists is only
established plant material that has survived without supplemental water. The condition of the median
landscaping has deteriorated so much that many neighborhoods in the city find them to be unacceptable.
There are many traffic medians with similar conditions on the Pt. San Pedro peninsula and in the Peacock
Gap neighborhood.
In 2006 representatives from the Peacock Gap Homeowners Association contacted the City and inquired
about re-establishing the landscaping on the medians in their neighborhood. The Public Works staff
worked with the neighborhood association to form a partnership to address their concerns. In November
2007 the Peacock Gap Homeowners Association formed a "grass roots" effort to improve the medians
and asked their members to join their median committee to come up with solutions for the neighborhood
association's Board of Directors.
The Homeowners Association was able to raise $80,000 in funds. According to the Peacock Gap
Homeowners Association web site, four hundred twenty seven (427) properties were asked to vote on the
median improvement project. Two hundred sixty eight (268) (63%) properties responded, and one
hundred sixty (160) (60%) voters supported the median improvements, The Peacock Gap Homeowners
Association and the Peacock Estates Homeowners Association agreed to contribute $80,000 towards the
cost of landscaping and the annual maintenance cost of these medians.
Based on subsequent meetings with the City staff, it was agreed that the City pay for the design
improvements, and the Peacock Gap Homeowners Associations fund the construction and maintenance
FOR CITY CLERK ONLY
File No.:
Council Meeting:
Disposition:
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
of the selected islands. In May 2008 Public Works hired landscape architect Ralph Alexander and
Associates to assess the current landscaping and irrigation system and propose design alternatives for
landscape medians for $15,500. Based on the collaboration between the neighborhood association and
city staff, a preferred design alternative was selected and a final design was prepared by Ralph Alexander
and Associates. The design includes new irrigation systems on Peacock Drive islands and the first island
on Riviera Drive, plus various landscaping in the medians on Peacock Gap Drive, Riviera Drive, Biscayne
Drive, and on the southwest corner of San Marino Drive and Point San Pedro Road. In order to move the
project forward an agreement between the city and the Peacock Gap Homeowners Association is
required.
ANALYSIS
An agreement between the City of San Rafael and the Peacock Gap Homeowners Association for the
construction and maintenance of the improvements in certain medians and other landscape areas in the
City right of way in the Peacock Gap neighborhood was drafted, reviewed, and approved by the Peacock
Gap Homeowners Association Board of Directors and the Public Works Department, and has been
approved as to form by the City Attorney's office. The Peacock Gap Homeowner Association has
budgeted $79,000 to construct the median improvements and will transfer the funds to the City prior to
the bid of the median improvement project. The City of San Rafael will bid and manage the project
construction. If the bid results exceed the budgeted $79,000 budget, the project will be re -scoped to fit the
available budget. The City will oversee the construction management and pay for the water. Upon
completion of the improvements the Peacock Gap Homeowners Association is obligated to hire a
contractor to maintain the median islands, and the Parks Division of Public Works will oversee the
maintenance work to ensure the minimum landscaping standards are followed. The City will be obligated
to fund the water use.
This is a very good example of private/public partnership to improve medians in the public right-of-way
with a very limited impact to the city budget and staff involvement.
FISCAL IMPACT:
The City has budgeted $15,500 for design that has already been paid, plus approximately $1,500 a year
for water use.
OPTIONS:
1. Staff recommends adopting the resolution approving and authorizing the City Manager to execute the
agreement with Peacock Gap Homeowners Association for the construction and maintenance of certain
medians and other landscape areas in the right of way in the Peacock Gap Homeowner Association
neighborhood.
2. City Council may chose to reject the agreement and direct staff to re -negotiate the terms of conditions
with the Peacock Gap HOA.
ACTION REQUIRED:
Enclosures:
Resolution
Agreement
Exhibit A to Agreement
Exhibit B to Agreement
Exhibit C to Agreement
RESOLUTION NO. _
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF
IMPROVEMENTS IN CERTAIN MEDIANS AND OTHER LANDSCAPE AREAS
IN THE CITY RIGHT OF WAY IN THE PEACOCK GAP HOMEOWNER
ASSOCIATION NEIGHBORHOOD.
WHEREAS, since the mid -1990's due to budget cuts and droughts the
maintenance of landscaping on the median islands on streets throughout the City has
been cut back and their condition has deteriorated; and
WHEREAS, the Point San Pedro peninsula has many median islands in a
deteriorated condition that are unacceptable to the neighborhoods; and
WHEREAS, through a partnership between the Peacock Gap Homeowners
Association and the City, a solution to address the median island condition was
developed; and
WHEREAS, the Peacock Gap Homeowners Association has been able to raise
funds for the construction and maintenance of landscape improvements for the medians
in their neighborhood; and
WHEREAS, the Peacock Gap Homeowners Association Board of Directors has
approved an Agreement with the City of San Rafael under which the City will supervise
the construction of the median landscape improvements and provide water for the
landscape improvements in the Peacock Gap neighborhood, and the Association will
fund the cost of construction and maintenance of the median landscape improvements;
and
WHEREAS, the Public Works Department has recommended entering into the
proposed Agreement as a model of a public-private partnership that will significantly
improve the appearance of the City's streets and neighborhoods;
NOW, THEREFORE, IT IS HEREBY ORDERED AND RESOLVED that the
City Council approves and authorizes the City Manager to execute the agreement
with the Peacock Gap Homeowners Association, in the form on file with the City
Clerk, for the construction and maintenance of improvements in certain medians
and other landscape areas in the City right -of -way in the Peacock Gap
Homeowners Association neighborhood.
I, ESTHER C. BEIRNE, City 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 held on the 5th day of October
2009, by the following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ESTHER C. BEH2NE, City Clerk
File No. 06.01.192
AGREEMENT BETWEEN THE CITY OF SAN RAFAEL
AND THE PEACOCK GAP HOMEOWNERS ASSOCIATION
FOR THE CONSTRUCTION AND MAINTENANCE OF
IMPROVEMENTS IN CERTAIN MEDIAN AND OTHER
LANDSCAPE AREAS IN THE CITY RIGHT OF WAY IN
THE PEACOCK GAP HOA NEIGHBORHOOD
THIS LICENSE AGREEMENT is entered into as of the day of
2009, by and between the CITY OF SAN RAFAEL, a charter city duly incorporated under the
laws of the State of California ("CITY", herein), and the PEACOCK GAP HOMEOWNERS
ASSOCIATION, a corporation ("HOA" herein), with reference to the following:
WHEREAS, CITY is the owner of certain medians and landscape areas in the Peacock
Gap Neighborhood, which areas are more particularly described in EXHIBIT A, Items 1-4, and
depicted on the map attached hereto as EXHIBIT B, attached hereto and incorporated herein
("MEDIANS", herein); and
WHEREAS, HOA is the association representing the mutual interests of the
homeowners in the Peacock Gap Neighborhood in which MEDIANS are located; and
WHEREAS, HOA and CITY, after numerous discussions of a public-private partnership
for the improvement and maintenance of MEDIANS in the Peacock Gap Neighborhood, have
concluded a conceptual agreement to construct and maintain improvements in MEDIANS; and
WHEREAS, CITY will design (subject to HOA criteria and approval), bid, manage and
inspect construction of landscaping, irrigation and associated fixtures ("PROJECT", herein) in
MEDIANS, with CITY paying for the design, bid, inspection and management part of PROJECT
and with HOA paying for all direct and indirect construction costs of PROJECT; and
WHEREAS, CITY will grant HOA a license for use of MEDIANS and HOA will be
responsible for and will pay for the ongoing maintenance costs of PROJECT; and
WHEREAS, HOA and CITY now want to memorialize their agreement to delineate the
respective duties and obligations of each party under this Agreement.
NOW, THEREFORE, the parties agree as follows:
Grant of License
In consideration of the benefit to the CITY and/ or its residents, CITY grants to HOA
under this Agreement a non-exclusive License for the maintenance of the MEDIANS.
2. Term of Agreement
This Agreement shall commence as of the date first hereinabove written and shall
continue until terminated as provided in Section 3. HOA understands, acknowledges and agrees
that the grant of the License under this Agreement does not convey any interest in real property,
and that the License is personal to the HOA.
3. Termination
This Agreement is terminable with or without cause by the CITY at any time. HOA shall
remove or relocate any of its property, fixtures, equipment or any other material, at HOA's sole
cost and expense, within thirty (30) days after written notice of termination by the CITY. In the
event that HOA fails to remove said material and restore CITY Property within this time period,
CITY shall have the right to do so without notice, and shall charge HOA for cost of said removal.
4. Purpose of License
CITY grants a License to HOA for the limited purpose of maintaining and operating the
landscaping and associated fixtures in or on the MEDIANS. HOA understands, acknowledges
and agrees that its License to enter upon, occupy and use the MEDIANS is for this sole purpose
and for no other purpose.
5. License Non -Exclusive
CITY grants this License to HOA subject to any and all licenses, leases, easements,
conditions, restrictions, covenants, encumbrances, liens and claims of title which may affect the
MEDIANS as of the effective date of License. CITY reserves the right to use the MEDIANS in
any manner, provided that such use does not unreasonably interfere with HOA's rights granted
herein. CITY agrees to cooperate with HOA in the exercise of CITY'S right to use the
MEDIANS.
6. Duties of CITY
CITY shall:
A. Pay the cost for design of the PROJECT improvements to be constructed in the
MEDIANS.
B. Submit the design to the HOA for approval, and mutually agreeable modifications
to the design.
C. Pay the cost of preparation of the PROJECT plans and specifications and related
documents.
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D. When the PROJECT plans and specifications are completed, prepare and submit
to the HOA the "engineer's estimate" of the cost of the PROJECT. In the event the estimated
total costs exceed $79,000, the CITY shall immediately inform the HOA and the parties shall
meet and confer with the goal of modifying the bid specifications to reduce total costs to within
the $79,000.00 limit; parties shall consider phasing construction of the PROJECT. The parties
shall mutually agree to the final estimated total costs. Upon such agreement, the HOA shall
transfer the agreed upon amount to the CITY. The CITY shall hold all HOA funds in trust for
the PROJECT and shall make payments as required by the PROJECT. All CITY expenditures
for the PROJECT from the funds provided to the CITY by the HOA shall be subject to audit by
the HOA upon reasonable advance notice to the CITY. Any excess amounts shall be refunded by
the CITY to the HOA upon completion of the PROJECT.
E. Limit all financial commitments on behalf of the HOA to $79,000 total for this
PROJECT, except for the HOA's maintenance obligations under this Agreement.
F. Put the PROJECT out to bid as required by the San Rafael Municipal Code, with
the goal of completion during the winter of 2009-2010.
G. Award the bid, if acceptable bids are received.
H. Schedule, manage, and inspect construction of the PROJECT.
I. Provide and pay for all on-going water costs both during and after construction of
the PROJECT. During construction and maintenance phases, HOA shall manage the use of
irrigation water in a prudent manner, in an effort to preserve valuable resources and avoid the
assessment of water use penalties for excessive water consumption.
7. Duties of HOA
I1V;FIII
A. Promptly review and approve, reject, or propose modifications to the proposed
designs for the Project.
B. Upon agreement between the parties as to the final estimated total costs within the
$79,000.00 limit, prior to the bidding of the PROJECT, the HOA shall transfer the agreed upon
amount to the City.
C. Meet and confer in good faith to resolve in a mutually agreeable fashion all
unexpected issues and costs, with the understanding that in no event can total costs for this
PROJECT exceed $79,000, except for the HOA's maintenance obligations under this Agreement.
If the lowest responsible bid amount plus a 15% contingency amount is less than or equal to
$79,000, then the CITY shall award the bid and proceed with the PROJECT. If the lowest
responsible bid amount plus a 15% contingency amount is greater than $79,000, the HOA and
the CITY shall meet and confer with the goal of reducing the PROJECT costs, and the PROJECT
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bid will not be awarded until there is a mutually agreeable resolution. Upon such agreement, the
HOA shall transfer the agreed upon amount to the CITY. The CITY shall hold all HOA funds in
trust for the project and shall make payments as required by the project.
D. Pay any fees or charges required by any other public agencies in connection with
construction of the PROJECT.
E. Subject to the CITY'S obligation to provide water to the MEDIANS both during
and after construction of the PROJECT, maintain the MEDIANS at its sole cost and expense in a
good and safe condition, free from waste and in good repair, including but not limited to
maintenance and, if necessary, replacement of plant materials, irrigation systems and related
items, in accordance with CITY'S minimum maintenance standards, attached hereto as EXHIBIT
C.
F. At its sole cost and expense, retain and pay, at applicable prevailing wage rates, a
landscape maintenance contractor to provide maintenance services required herein. Such
contractor shall be required to have general liability, automobile liability and workers
compensation insurance coverage. HOA shall require the contractor to name HOA and CITY as
additional insureds under the general liability and automobile liability policies in the limits set
forth in Section 10 herein. The contractor must be a licensed contractor in the State of
California. The contractor shall obtain from the CITY a no -fee Encroachment Permit to perform
required landscape maintenance to the MEDIANS.
G. Immediately repair any damage to or nuisance arising from the PROJECT in the
MEDIANS.
8. Assumption of Risk
HOA shall assume all risk of damage or injury to its property, to itself, its agents, its
employees, its or the neighborhood's volunteers and to any persons or property while using,
working or being upon the MEDIANS.
9. Indemnity
HOA shall hold harmless, release, indemnify and defend (with legal counsel reasonably
satisfactory to CITY) the CITY, its officers, agents, employees and volunteers, their successors
and assigns (the "Indemnities"), from and against all liability, cost and expense for loss of or
damage to property and for injuries to or death of any person (including, but not limited to, the
property and employees of each party) when arising out of or resulting from the activities of or
presence of HOA or the HOA's employees, members, invitees, volunteers, contractors or
subcontractors, upon the MEDIANS. The duty of HOA to indemnify and save harmless the
Indemnities herein, includes the duties to defend as set forth in Section2778 of the Civil Code. It
is the express intent of the parties under this section, that HOA will defend, indemnify and hold
harmless the Indemnities from any and all claims, suits or actions arising from any cause
whatsoever as set forth above, other than the willful misconduct or criminal acts of the
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Indemnities. HOA waives any and all rights to any type of express or implied indemnity against
the CITY'S use of or activities on the MEDIANS except for indemnification of the CITY for
liability and loss arising out of the willful misconduct or criminal acts of the Indemnities. This
indemnity shall survive termination of this Agreement. It is the intention of the parties that
should any term of this indemnity provision be found to be void or un -enforceable, the remainder
of the provision shall remain in full force and effect.
Any person, firm, corporation or other entity HOA authorizes, directly or indirectly, to
enter upon the MEDIANS, including any subcontractor, shall be deemed to be HOA's agent and
shall be subject to all the applicable terms of this Agreement.
HOA expressly understands acknowledges and agrees to the obligations expressed in this
indemnity provision.
10. Insurance
A. Insurance Coverages Required. HOA shall provide CITY with satisfactory
evidence, in the form of a Certificate of Insurance, that HOA is insured in accordance with the
following terms and conditions. Such insurance shall remain in effect throughout the term of this
Agreement and failure to maintain the required insurance shall automatically terminate this
Agreement.
1. Liability Insurance.
HOA shall, at its own cost and expense, procure and maintain and shall
require its agents, contractors and/or subcontractors, at their own cost and expense, to procure
and maintain general liability insurance. This insurance shall provide bodily injury and property
damage coverage with a combined single limit of at least $1,000,000.00 each occurrence or claim
and a general aggregate limit of at least $2,000,000.00. This insurance shall include but not be
limited to premises and operations and contractual liability covering the indemnity provisions
contained in this Agreement.
2. Automobile Liability Insurance.
HOA shall, at its own cost and expense, procure and maintain and require
its agents, contractor(s) and/or subcontractors, at their own cost and expense, to procure and
maintain automobile liability insurance providing bodily injury and property damage with a
combined single limit of at least $500,000.00 per occurrence for all owned, non -owned and hired
automobiles. This insurance shall provide contractual liability covering all motor vehicles and
mobile equipment to the extent coverage may be excluded from general liability insurance. All
of the insurance specified in this section, shall remain in full force and effect during the term of
this Agreement. The failure to procure or maintain insurance required in this section will
constitute a material breach of this Agreement and shall terminate the Agreement.
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3. Workers Compensation Insurance.
If it employs any person, HOA shall maintain workers compensation and
employers liability insurance, as required by the State Labor Code and other applicable laws and
regulations, and as necessary to protect both HOA and CITY against all liability for injuries to
HOA's officers and employees. Likewise, HOA shall require its agents, contractors and/or
subcontractors, at their own cost and expense, to procure and maintain worker's compensation
insurance if any of them employ any person to perform activities covered by this Agreement.
B. The insurance policies shall also include the following:
1. The CITY, its officers, employees, agents and volunteers, and their
successors or assignees shall be named as additional insureds under the policies and HOA shall
provide MY with policy endorsements so stating.
2. The insurance company(s) issuing such policy(s) shall give written notice
to the CITY of any material alteration, or reduction in aggregate limits, if such limits apply, and
provide at least ten (10) days' notice of cancellation.
3. The policy(s) shall be primary insurance and the insurance company(s)
providing such policy(s) shall be liable hereunder for the full amount of any loss or claim for
which HOA is liable, up to and including the total limit of liability, without right of contribution
from any other insurance affected or which may be affected by CITY.
4. By their inclusion as additional insureds, the rights of CITY, its officers,
agents, employees and volunteers shall not be affected in regard to any claim, demand, suit or
judgment made, brought or recovered against the HOA or its contractors, agents, and the CITY,
its officers, agents, employees or volunteers, shall have the same rights and shall be treated in the
same manner as though a separate insurance policy had been issued to each, but nothing in said
policy shall operate to increase the insurance company(s) liability as set forth in its policy beyond
the amount or amounts shown or to which the insurance company would have been liable if only
one interest had been named as an insured.
5. The insurance specified in this section shall be provided on an occurrence
basis.
6. The insurance company(s) providing the insurance required in this section
shall be insurers admitted to do business in California.
11. Compliance with Laws
HOA shall, with respect to elements for which it has sole responsibility or over which it
has sole control, comply, at HOA's sole expense, with all other applicable laws, regulations,
rules, and orders, regardless of when they become or became effective, including, without
limitation, those relating to construction, grading, signage, health, safety, accessibility, noise,
environmental protection, hazardous materials, waste disposal, and water and air quality, and
furnish satisfactory evidence of such compliance upon request of CITY.
12. Notices
All notices required or permitted to be given under this LICENSE shall be in writing and
mailed postage prepaid, or by personal delivery or by overnight courier, to the appropriate
address indicated below or at such other place or places as either CITY or HOA may, from time
to time, respectively, designate in a written notice given to the other. Notices shall be deemed
sufficiently served four (4) days after the date of mailing by certified or registered mail, one (1)
day after mailing by overnight courier, or upon personal delivery.
To CITY: Director of Public Works
City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1560
Fax: 415-485-3334
To HOA: Peacock Gap Homeowners Association
c/o Eugene Burger Property Management Corp.
6600 Hunter Drive
Rohnert Park, CA 94928-2418
13. Successors and Assigns
CITY'S grant of this License to HOA is the grant of a personal right to the use of the
MEDIANS. HOA shall not assign nor sublet, in whole or in part, any rights granted by this
Agreement, or permit any other person, firm, entity, or corporation to use, in whole or in part,
any of the rights or privileges granted pursuant to this Agreement.
14. No Waiver
No waiver of any default or breach of any covenant of this Agreement by either party
shall be implied from any omission by either party to take action on account of such default if
such default persists or is repeated, and no express waiver shall affect any default other than the
default specified in the waiver, and then the waiver shall be operative only for the time and to the
extent stated. Waivers of any covenant, term, or condition by either party shall not be construed
as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or
approval by either party to or of any act by either party requiring further consent or approval shall
not be deemed to waive or render unnecessary their consent or approval to or of any subsequent
similar acts.
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15. Severability
Each provision of this Agreement is intended to be severable. If any term or provision
shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason
whatsoever, such provision shall be severed from this Agreement and shall not affect the validity
of the remainder of this Agreement.
16. Attorney's Fees
If any legal proceeding should be instituted by either of the parties to enforce the terms of
this Agreement or to determine the rights of the parties under this Agreement, the prevailing
party in the proceeding shall receive, in addition to all court costs, reasonable attorney's fees.
17. Governing Law
The rights and liability of the parties under this Agreement shall be interpreted in
accordance with the laws of the State of California.
18. Integration
This Agreement constitutes the complete expression of the agreement between the parties
and supersedes any prior agreements, whether written or oral, concerning the subject of this
Agreement, which are not fully expressed herein. Any modification of or addition to this
Agreement must be in writing signed by both parties.
CITY OF SAN RAFAEL
KEN NORDHOFF, City Manager
ATTEST:
ESTHER C. BEIRNE, City Clerk
APPROVED AS TO FORM:
ROBERT F. EPSTEIN, City Attorney
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PEACOCK GAP HOMEOWNERS
ASSOCIATIQN /l
Printed
EXHIBIT A
DESCRIPTION OF MEDIANS AND OTHER LANDSCAPE AREAS
COVERED BY AGREEMENT BETWEEN
CITY OF SAN RAFAEL AND PEACOCK GAP HOMEOWNERS ASSOCIATION
I. Peacock Drive Medians — the five islands in the middle of the Peacock Drive beginning
at Point San Pedro Road and extending to approximately the address of 69 Peacock
Drive.
2. Riviera Drive — the four islands in the middle of the Riviera Drive beginning at Point San
Pedro Road and extending to approximately the address of 170 Riviera Drive.
3. Biscayne Drive — the one island in the middle of Biscayne Drive, located near the
intersection with Point San Pedro Road.
4. Southwest Corner of San Marino Drive and Point San Pedro Road — the open space of
approximately 900 square feet located at the intersection of the sidewalks.
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