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HomeMy WebLinkAboutCC Resolution 14790 (Village at Loch Lomond Marina Development - Memorandum of Understanding) Page 1 of 2 RESOLUTION NO. 14790 RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE CITY MAN AGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING FOR THE VILLAGE AT LOCH LOMOND MARINA DEVELOPMENT AT 110 LOCH LOMOND DRIVE WHEREAS, on August 7, 2007, the City approved the Village at Loch Lomond Marina development. This approval permits a mixed-use development that includes enhanced and upgraded marina facilities, a new grocery store and neighborhood commercial uses, development of 81 residential units and publicly accessible shoreline park and recreation improvements; and WHEREAS, the August 7, 2007 City approvals included adoption of City Council Resolution No. 12332 covering the approval of a Vesting Tentative Map for the mixed-use development. Vesting Tentative Map Condition 36 requires that 17 of the 81 approved residential units be reserved for sale to low- and moderate-income households (the “BMR for- sale units”); and WHEREAS, on July 1, 2008, a Below Market Rate (“BMR”) Housing Agreement was executed between the City, property owner/developer and Marin Housing Authority (MHA) memorializing the affordability restriction of the 17 BMR for-sale units for 55 years; and WHEREAS , since 2008, the first phase of “The Strand” residential development has been constructed. Eleven of the 17 BMR for-sale units were built in this first phase and have been sold to qualifying households by MHA. The remaining six, unbuilt BMR for-sale units remain in the second phase of The Strand and in the mixed-use building; and WHEREAS , in mid-2019, Marina Village Associates, LLC (MVA), property owner/developer, initiated discussions with the City to “buy-out” the remaining unbuilt BMR for- sale units. Staff negotiated a buy-out of these unbuilt units for an amount of $3,686,400. An amendment to the BMR Housing Agreement was prepared, which included instructions on when and how the buy-out payment would be made to the City for deposit into a special account to be used solely for housing for persons of low or moderate income (the City’s Affordable Housing Trust Fund # 243); and WHEREAS, the BMR unit buy-out amount was derived based on the terms specified in the executed BMR Agreement. As the BMR Agreement is among three parties, MHA, the property owners/developer and the City, it was determined that a Memorandum of Understanding is necessary to ensure that the buy-out terms are clear and understandable; and WHEREAS, on April 20, 2020, the City Council held a duly noticed public hearing to consider the Memorandum of Understanding, the report of the Community Development and Public Works Departments and public testimony. NOW THEREFORE BE IT RESOLVED that the City Manager is hereby authorized to execute, on behalf of the City of San Rafael, the Memorandum of Understanding for the Village at Loch Lomond Marina, located at 110 Loch Lomond Drive, attached hereto as Exhibit A and incorporated herein by reference, subject to final approval as to form by the City Attorney. I, Lindsay Lara, 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 City Council held on the 20th day of April 2020, by the following vote, to wit: Page 2 of 2 AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None LINDSAY LARA, City Clerk Exhibit A: Memorandum of Understanding MEMORANDUM OF UNDERSTANDING AMONG THE CITY OF SAN RAFAEL, THE HOUSING AUTHORITY OF THE COUNTY OF MARIN, AND MARINA VILLAGE ASSOCIATES, LLC REGARDING DEVELOPMENT OF THE VILLAGE AT LOCH LOMOND MARINA Tr MEMORANDUM OF UNDERSTANDING ("MOU") is entered into thiso?-71ay of 2020 ("Effective Date") by and among the City of San Rafael (hereinafter referred to as ` 'ity") the Housing Authority of the County of Marin ("Marin HousingAuthority") and Marina Village h) g Associates, LLC, a Delaware limited liability company (hereinafter referred to as the "Developer"), collectively referred to herein as the "Parties". RECITALS A. Developer is the developer of a mixed-use development known as the Village at Loch Lomond Marina in the City of San Rafael, County of Marin, State of California (the "Development"). The City granted approval of the Development on August 6, 2007, approving the construction of eighty- one (8 1 ) residential units and numerous other structures and amenities. B. Marin Housing Authority is authorized by law to participate in programs that provide housing for households of very low, low, and moderate income and is by experience qualified to screen and determine the eligibility of applicants for very low, low, and moderate -income housing. C. The City has adopted affordable housing requirements contained in the Zoning Ordinance Section 14.16.030 of the San Rafael Municipal Code. Pursuant to Section 14.16.030, and as a condition of approval of the Development, the City required, and the Parties entered into, that certain "Below Market Rate Housing Agreement" dated July 1, 2008 and subsequently recorded in the Official Records of the County of Marin on August 14, 2008, as Document No. 2008-003836 (the "BMR Agreement"). D. The BMR Agreement requires Developer to construct seventeen (17) of the eighty-one (81) residential units in the Development as below market rate ("BMR") units. In order to facilitate completion of the Development, Developer has requested and City and Marin Housing have agreed to an amendment of the BMR Agreement to reduce the number of required BMR units from seventeen (17) to eleven (11), in consideration of Developer's payment of a mutually agreeable buyout price, on the terms set forth herein. E. Pursuant to San Rafael City Council Resolution No. 13665, City and Developer entered into a Subdivision Improvement Agreement dated January 21, 2014 for Phase 1 of the Development (hereafter, the "Phase 1 SIA"). F. Pursuant to San Rafael City Council Resolution No. 13878, City and Developer entered into a Subdivision Improvement Agreement dated January 21, 2014 for Phase 2 of the Development (hereafter, the "Phase 2 SIA"). G. Developer has commenced construction of the Development and has completed the majority of Phase 1 including subdivision improvements, and portions of Phase 2 including subdivision improvements. In order to reduce Developer's outstanding construction and payment bonds and thereby facilitate completion of the Development, the Parties now wish to consolidate and make amendments to the Phase I SIA and the Phase 2 SIA, and the security therefor, to reflect the completed improvements and to provide for the completion of those improvements that still remain to be constructed. NOW THEREFORE, the Parties agree as follows: AGREEMENT ARTICLE I. AMENDMENTS TO THE BMR AGREEMENT I. The Parties will execute a "First Amendment to Below Market Rate Housing Agreement" (hereafter, the "First Amendment") that will include the following substantive amendments to the BMR Agreement: a. Paragraph I of the BMR Agreement and the Exhibits to the BMR Agreement will be amended to reduce the number of onsite BMR units required in the Development from seventeen (17) to eleven (11), The following units will be released from the affordability restrictions of the BMR Agreement: VILLAGE @ LOCH LOMOND MARINA Below Market Rate (BMR) Units to be Released _ _Address —�- APN. IA)t No. & Subdivision 25 Loch Lomond Drive 016-070-14 Lot #2, Village LL Marina Sub Phase 1 25 Loch Lomond Drive 016-341-04 Lot #2. Village LL Marina Sub Phase 1 36 Ba harbor Way 016-341-68 Lot #4, Villa e a7 LL Marina Sub, Phase 2 54 Ba harbor Way 016-341-68 Lot #68, Village LL Manna Sub, Phase 2 58 Ba harbor Way 016-341-06 Lot #6, Village 'a7 LL Marina Sub. Phase 2 64 Ba rharbor Way 016-341-75 Lot #75, Village Ll_ Marina Sub, Phase 2 b. The required types of BMR units specified in Paragraph 2 of the BMR Agreement will be amended to a requirement of nine (9) attached townhouses and two (2) detached cottages. c. Paragraph 8 of the BMR Agreement, concerning the Marin Housing Authority's declination to purchase a for -sale BMR unit, will be amended as follows, shown with additions underlined and deletions struck out: In the event that Marin Housing Authority or its assignee declines to purchase the Unit, it may be sold by the Developer on the open market without restrictions as to the price, affordability, or future re -sale, and no deed restrictions will be placed on the property. In the event that the declination of the purchase of the Unit is the result of a separate memorandum of understanding("MOU") between the City, the Marin Housing Authority and the Developer, such agreement shall include a mutually anreed to sale price of the units on the open market without restrictions In such event, the Developer shall pay to the City from the sale price of the Unit seventy-five percent (75%) of the difference between the net price achieved after normal selling 2 and closing costs and the below -market -rate sales prices specific in Exhibit "B". Said sum shall be paid to the City upon close of escrow on the sale of such Unit or, if the sale is pursuant to a contract of sale, upon execution of such contract, or. if the sale price is set by a separate MOU Nkithin forty-five (45) days of execution of such an agreement, whichever shall first occur (the "Payment Date"). Notwithstanding the foregoing, in recognition of the COVID-19 pandemic's effects on the financial markets and Executive Order N-33-20 issued by the Governor of the State of California on March 19 2020 (the "Stay At Home Order") the Payment Date shall be extended until forty-five (45) days after the Stay At Home Order has been lifted for Marin County if such date is later than the Payment Date. The City shall pay to Marin Housing Authority ten pefeent (10%) one percent (1%) of this sum for Marin Housing Authority's use in administering Below Market Rate projects, including, but not limited to, on-going BMR monitoring, legal fees and future BMR re -sales. Any such payments made to the City shall be retained by the City in a special account to be used solely for activities which it deems will facilitate the provision of housing for persons of low or moderate income. 2. In exchange for the elimination of six BMR units from the Development, Developer will pay to the City the sum of $3,686,400 (hereafter, the "Buyout Amount"). Pursuant to the amendment to be made to Paragraph 8 of the BMR Agreement as described in ].c. of this MOU, the Parties hereby agree that the Buyout Amount is calculated based upon an agreed sales prices as follows: a. Total below market sale price for six (6) affordable units: $2,359,800; b. Total below market sale price for six (6) affordable units on the open market without restrictions: $7,500,000; c. Normal selling and closing costs of $225,000, representing three percent (3%) of the sale price of the six (6) units combined on the open market without restrictions; d. Buyout Amount = 75% ($7,500,000 - $225,000 - $2,359,800) = $3,686,400 The Developer will make a 50% partial payment of $1,843,200.00 ("First Instalment") of the Buyout Amount to the City within forty-five (45) days following execution by all the Parties of the First Amendment and or by September 30, 2020 The remaining 50% balance and or Final Payment of $1,843,200.00 would be made no later than the end of first quarter of 2021 or by March 31, 2021, irrespective of any future, State of California Executive Orders from the pandemic. 4. Upon receipt of the complete Buyout Amount, City will cause the First Amendment to be recorded in the Office of the Marin County Recorder and City will pay to the Marin Housing Authority the sum of $36,864 from the Buyout Amount, representing one percent (I%) of the Buyout Amount. 5. Once the First Amendment has been recorded, the BMR Agreement as amended by the First Amendment will be fully transferable and/or assignable to all successors or assignee(s) of the Development. 6. Following recordation of the First Amendment, the City will record a release notice for the lots described in Section 1(a) above, in a form approved by Developer, 3 ARTICLE II. CONSOLIDATED SUBDIVISION IMTROVEMENT AGREEMENT 7. City and Developer will enter into a Consolidated Subdivision Improvement Agreement for completion of the unconstructed subdivision improvements required by the Phase 1 SIA and the Phase 2 SIA, including the work required by Amendment No. 5 to Permit No. 2006.010.05 , issued by the San Francisco Bay Conservation and Development Commission ("BCDC") on December 12, 2019. The Consolidated Subdivision Improvement Agreement will be in the form attached hereto as Exhibit A and incorporated herein, subject to final approval as to form and substance by the City Attorney and the Director of Public Works. ARTICLE III. GENERAL PROVISIONS 8. No Third -Party Beneficiaries. The Parties do not intend, by any provision of this MOU, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this MOU, to the other Parties. 9_ Entire Agreement — Amendments. a. The terms and conditions of this MOU, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. b. The terms and conditions of this MOU shall not be altered or modified except by a written amendment signed by all of the Parties. 10. Costs And Attorney's Fees. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 11. Applicable Law. The laws of the State of California shall govern this Agreement. 12. Counterparts And Electronic Signature. This MOU may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS ViKEREOF, the parties have executed this MOU as of above written. 11-1 CITY OF SARI RAFAEL �!:_;_-1W. and year first TES, LLC A Delawr I' ility company By: — limited By. --- ---- J S HUTZ, City ager Name: Michael Rosenfeld Title: Manager ATTEST: ,. / fly LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, Cio Attorney HOUSING AUTHOR] I" OF MARIN COUNTY By LEWIS JOR N, Executive Director Attachment: Exhibit "A"- Consolidated Subdivision Improvement Agreement City of San Rafael • California Consolidated Subdivision Improvement Agreement THIS AGREEMENT is made and entered into by and between the City of San Rafael (hereafter; the "City"), and Marina Village Associates, LLC, a Delaware limited liability company (hereafter, the "Subdivider"). RECITALS: A. Subdivider is the developer of a subdivision and mixed-use development known as the Village at Loch Lomond Marina in the City of San Rafael, County of Marin, State of California (the "Development"). B. In January 2014, as part of Subdivider's applications to the City for approval of the Development, Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT LOCH LOMOND MARINA PHASE I" (hereafter, the "'Phase I Final Map"). The City approved the Phase 1 Final Map conditioned, in part, upon Subdivider entering into a Subdivision Improvement Agreement with the City to ensure timely installation of required subdivision improvements after recordation of the map. Thereafter, Subdivider and City entered into that certain "Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase I SIA"), agreeing to construct certain specified subdivision improvements and to post bonds in the amount of Five Million Dollars ($5,000,000) as security for the agreement. C. In February 2015, as part of Subdivider's applications to the City for approval of the Development, Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT LOCH LOMOND MARINA PHASE 2" (hereafter, the "Phase 2 Final Map"). The City approved the Phase 2 Final Map conditioned, in part, upon Subdivider entering into a Subdivision Improvement Agreement with the City to ensure timely installation of required subdivision improvements after recordation of the map. Subdivider and City entered into that certain "Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase 2 SIA"), agreeing to construct certain specified subdivision improvements and to post bonds in the amount of One Million, Nine Hundred Forty -Seven Thousand Dollars ($1,947,000) as security for the agreement. D. Subdivider has now completed a substantial portion of the Phase I subdivision improvements, and the City is willing to accept those completed improvements. To facilitate the completion of the Development, City and Subdivider have agreed to enter into this new Consolidated Subdivision Improvement Agreement ("Agreement") that will supersede the Phase I SIA and the Phase 2 SIA and will cover all of the Phase I and Phase 2 subdivision improvements remaining to be constructed. City has also agreed to allow Subdivider to replace the securities currently securing the Phase 1 SIA and the Phase 2 SIA with new securities in a reduced amount still sufficient to secure construction of the remaining subdivision improvements covered by this Agreement. 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 Subdivision Agreement . I 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 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 Califomia 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 attached improvements plans and drawings, incorporated herein by reference, entitled: "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase I "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for Phase 2, and "PROJECT DRAWINGS FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional work required by BCDC (collectively hereafter, "the Subdivision improvements"), all subject to the conditions, requirements and recommendations as set forth by the San Rafael City Council Resolution Nos. 12332 adopted at the San Rafael City Council on the 6`h of August, 2007. 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 hereinbefore specified, or with any changes required or ordered by said Engineer, which in his opinion are ry necessaor 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, at the Subdivider's sole expense, during the construction of the Subdivision 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 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 December 31, 2021. 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. Note the City of San Rafael and Marina Village Associates, LLC are closely monitoring any governmental actions in response to the ongoing COVID-19 pandemic. The Judicial Council of California has adopted temporary emergency rules in response to the COVID-19 pandemic affecting statutes of limitations among other things, time allotment and potential tolling of conditions of approval, time sensitive work and performance agreements and for completion of map conditions. In the event Subdivider is required, as a result of a governmental order, to stop work being performed pursuant to this Agreement then the time for performance under this Agreement will be extended by a period equal to the duration of the work stoppage, i.e. from the date of work stoppage; until such governmental order is lifted as to Subdivider and work can restart. 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 Subdivision Agreement - 2 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 Phase 1 Final Map and the Phase 2 Final 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. g. 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, as outlined within this agreement in Section 21 Cost of Engineering, Inspection and Other Fees. 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 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 As the Subdivider is requesting to reduce the security currently held by the City in the amount of Five Million Dollars ($5,000,000) for the Village at Loch Lomond Marina ---Phase 1 and One Million, Nine Hundred Forty Seven Thousand Dollars ($1,947,000) for the Village at Loch Lomond Marina --Phase 2 for the work substantially completed through March 1, 2020 and the City has accepted the completed improvements of said Phase 1 and Phase 2, the Subdivider shall present to and file with the City of San Rafael a surety company bond in the sum Two Million Four Hundred Thousand Dollars ( $2,400,000) 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. Subdivision Agreement • 3 12. Alternate Improvement Security Subdivider may deposit at the time for submission of the bonds mentioned in paragraph I I 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. Payment Bond (50% of Improvement Cost) The Subdivider shall present to and file with the City of San Rafael a surety company bond in the sum of One Million Two Hundred Thousand Dollars ($1,200,000) issued by a company duly and regularly authorized to do a general surety business in the State of Califomia 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. The surety on said bond and form thereof shall be satisfactory to the City Attorney. 14. Monumentation Bond N/A 15. Maintenance Bond The Subdivider shall maintain all infrastructure installed but not limited to the items shown on the attached plans titled "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase 1, "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for phase 2, and "PROJECT DRAWINGS FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional work required by BCDC. The Subdivider shall be responsible for all utility cost for the improvements and maintenance including, but not limited to, water and electricity until such time as, in the opinion of the Public Works Director, there is sufficient funding in the Mello -Roos District for Community Facilities District No. 2 (Loch Lomond Marina Development, 1 10 Loch Lomond Drive) to support all maintenance costs. Subdivision Agreement • 4 16. Hold Harmless Agreement To the fullest extent permitted by law; Subdivider must indemnify, defend, and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and consultants (individually, an "Indemnitee," and collectively the "Indemnitees") from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, "Liability") of every nature (including death or injury of persons, or destruction of or damage to property) arising out of or in connection with the acts or omissions of Subdivider, its employees, Contractors and Subcontractors, representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation of Subdivider under this Agreement, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. Subdivider's failure or refusal to timely accept a tender of defense pursuant to this Agreement will be deemed a material breach of the Agreement. City will timely notify Subdivider upon receipt of any third -party claim relating to this Agreement, as required by Public Contract Code § 9201. Subdivider waives any right to express or implied indemnity against any Indemnitee. Subdivider's indemnity obligations under this Agreement will survive the expiration or any early termination of the Agreement. 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 acts pursuant to this paragraph. 18. Insurance Subdivision Agreement • 5 A. 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 two million dollars ($2,000,000) per occurrence/four million dollars ($4,000,000) 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 two million dollars ($2,000,000) dollars per occurrence. 3. Worker's compensation insurance, as required by the State of California. with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($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. The insurance coverage required of the Subdivider in subparagraph A above shall also meet the following requirements: I. The commercial general liability insurance and automobile policies shall be specifically endorsed to include the City, its officers, agents, employees, and volunteers, as additional insureds under the policy. 2. The additional insured coverage under Subdivider's insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by City and shall not call upon City insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in Subdivider's policies shall be at least as broad as ISO form CG20 O1 04 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; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. Subdivision Agreement ° 6 C. 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. 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 I 1 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 15.1 1.040 of the San Rafael Municipal Code and condition numbers 44 and 49 of City Council Resolution No. 12332. Subdivider shall also pay overtime incurred by the City's inspector whenever the Subdivider elects to work overtime or on Saturday, Sunday and Holidays. Final Map and Improvement Plan Check Fees $ 0.00 City Fees for Project Oversite and Processing $ 28,000.00 Construction Inspection Fees (Estimated) _ 108,000.00 Total $ 136,000.00 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 Subdivision Agreement • 7 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. Dated this I day of CITY OF SAN RAFAEL: Gary O. Mayor ATTEST: .,e, / V64A u4 - Lindsay Lara City Clerk APPROVED AS TO FORM: Robert F. Epslein City Attorney +P -,e' , 20 SUBIDIVEDER: Marina Village A Delaware Lir By: Name and Title Usocia s, LLC, ited abili pony Michael Rosenfeld, Manager Subdivision Agreement 8 APPROVED AS 'T€3 CONTENT: N Bill Guerin, Director of Public Works Subdivision Agreement • 9 ■a ■ | W, U) ; Z.| W�/ x ) r IK - e:E e!J , � � cc2 . § z � ( m � � � § w w / m wk Er z « Fr G, , « w � \ . wl ) a' 2 : ' 04 f © 7 ° 2 \ /� Z|! R % \ / E � m m = _ — �. m J a) 0.c 2 O !� 0 2 _ \� \ E=em 0) =� F- ■- \m / ± u/ aa = \ / rT=aooE �$ _¥0a Y� ± C a —0 � bD � � , to _ w E / lu E / / 2 \ 2 R — _ CU( _ & u � � > '� § \ § � f k m ( \ fE E/� w \- / . 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