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HomeMy WebLinkAboutCC Resolution 12850 (Peacock Gap HOA Median Impr.)RESOLUTION NO. 12850 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 -I 990'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. Mi 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: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, 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 Oro day of OC-TC7,?SCR , 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: 1. 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. wwql 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. OQ 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 HOA shall: 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 K 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. Indemnitv 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 11 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. Liabilitv 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 Liabilitv 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. Wi 3. Workers Compensation Insurance. If it employs any person, HOA shall maintain worker's compensation and employer's 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 IIOA'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 CITY 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, 0 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. rr 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. Attornev'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 k9m- QRDHOFF, City M :a ge ATTEST: ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, City Attorney t PEACOCK GAP HOMEOWNERS ASSOCIATIG,N®w /1? By: Printed Faulkner President 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. 31. 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.