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HomeMy WebLinkAboutReso 117-09 Surplus Prop Auth Parcel Map 8275RESOLUTION NO. 117-09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE IMPROVEMENT AGREEMENT FOR PARCEL MAP 8275, PHASE 2 IMPROVEMENTS WHEREAS, the CITY and the Surplus Property Authority of the County of Alameda (ACSPA), a Public Corporation, the subdivider of Parcel Map 8275, and EAH, Inc., entered into a Improvement Agreement on March 15, 2005 ("the Original Improvement Agreement"), to complete in two phases those public improvements (hereafter "The Improvements") required by Community Development Director Resolution No. 04-03 adopted on May 5, 2004, in accordance with the requirements and conditions set forth in said resolution; and WHEREAS, EAH, Inc., has completed Phase 1 of The Improvements; and WHEREAS, the ACSPA desires to transfer to AvalonBay Communities, Inc., a Maryland corporation the EAH, Inc., obligations under the Original Improvement Agreement for Phase 2 of The Improvements; and WHEREAS, the ACSPA and AvalonBay Communities, Inc., have executed and filed with the City of Dublin an Improvement Agreement for Parcel Map 8275, Phase 2 Improvements to construct required improvements in accordance with the Conditions of Approval for the Tentative Map, and with the approved improvement plans; and WHEREAS, said Improvement Agreement is secured by bonds furnished by Travelers Casualty and Surety Company of America in the amount of $731,000 for Phase 2 of The Improvements (Bond No. 105296929), conditioned upon faithful performance of said Improvement Agreement; and WHEREAS, said Improvement Agreement is secured by bonds furnished by Travelers Casualty and Surety Company of America in the amount of $731,000 for Phase 2 of The Improvements (Bond No. 105296929), conditioned upon payment for labor performed or material furnished under the terms of said Improvement Agreement. NOW, THEREFORE, BE IT RESOLVED that: 1. Said Improvement Agreement is hereby approved; and 2. The Performance Bond issued by Travelers Casualty and Surety Company of America in the amount of $731,000 for Phase 2 of The Improvements (Bond No. 105296929) be accepted as security; and 3. The Labor and Materials Bond issued by Travelers Casualty and Surety Company of America in the amount of $731,000 for Phase 2 of The Improvements (Bond No. 105296929) be accepted as security; and 4. The original Performance Bond issued by International Fidelity Insurance Company in the amount of $499,700 for Phase 2 of The Improvements (Bond No. 0383234) be released; and Page 1 of 2 5. The original Labor and Materials Bond issued by International Fidelity Insurance Company in the amount of $499,700 for Phase 2 of The Improvements (Bond No. 0383234) be released. BE IT FURTHER RESOLVED that the Mayor of the City of Dublin is hereby authorized to execute said Improvement Agreement, attached hereto as Exhibit "A." PASSED, APPROVED AND ADOPTED this 18th day of August, 2009, by the following vote: YES: Councilmembers, Biddle, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: Councilmember Hart ABSTAIN: None ATTES ` P ~~ City Clerk Mayor Reso No. 117-09, Adopted 8-18-09, Item 4.3 Page 2 of 2 CITY OF DUBLIN IMPROVEMENT AGREEMENT PARCEL MAP 8275 PHASE 2 IMPROVEMENTS This agreement is made and entered into this _ day o1` _ ,,2009, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and the Surplus Property Authority of the County of Alameda, a Public Corporation, and AvalonBay Communities, Inc., a Maryland corporation, hereinafter referred to as "DEVELOPER". RECITALS WHEREAS, the CITY and the Surplus Property Authority of the County of Alameda, a Public Corporation, and EAH, INC., the subdivider of Pazcel Map 8275, enter into a Improvement Agreement on March 15, 2005 ("the Original Improvement Agreement") to complete in two phases those public improvements (hereafter "The Improvements"} required by Community Development Director Resolution No. 04-03 adopted on May 5, 2004 in accordance with the requirements and conditions set forth in said resolution; and WHEREAS, EAH, INC., has completed Phase 1 of The Improvements; and WHEREAS, the Surplus Property Authority of the County of Alameda desires to transfer to the DEVELOPER its obligations under the Original Improvement Agreement to complete Phase 2 of The Improvements; and WHEREAS, City is willing to enter into this Improvement Agreement with DEVELOPER to supersede the Original Improvement Agreement; and WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State of California, that DEVELOPER, desires to improve those Phase 2 public improvements (hereafter "Phase 2 of The Improvements") required for Parcel Map 8275 by Community Development Director Resolution No. 04-03 adopted on May 5, 2004 in accordance with the requirements and conditions set forth in said resolution, the requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance of the CITY, and those certain plans for said development entitled Parcel Map 8275 Phase 2 Improvement Plans, Campbell Lane> prepared by BKF Engineers/Surveyors/Planners as approved by the City Engineer; and now on file in the office of the City Engineer, which are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at length herein; WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept the offer of dedication of Campbell Lane shown on Parcel Map 8275 for Phase 2 of The Improvements in consideration for DEVELOPER'S satisfactory performance of the terms and conditions of this Agreement; and WHEREAS, CITY has determined that The Improvements are a public works subject to California prevailing wage requirements: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: EXHIBIT Tn the Rccnli itinn 1. Completion Time. DEVELOPER will commence construction of The Improvements within ninety (90) days following the date on which CITY executes this Agreement. DEVELOPER shall complete said work not later than two years following said date of execution. Time is of the essence in this Agreement. Upon completion, DEVELOPER shall famish CITY with a complete and reproducible set of final as- built plans of Phase 2 of The Improvements, including any authorized modifications. 2. Estimated Cost of Improvements. The estimated cost of constructing Phase 2 of The Improvements required by this agreement as presented in the Estimate for Bonding Purposes, Parcel Map 8275 Phase 2 Improvements, Campbell Lane dated April 17, 2009 prepared by BKF Engineers/Surveyors/Planners is agreed to be $731,000. Said amount includes costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured. 3. Bonds Famished. Concurrently with the execution of this Agreement, DEVELOPER shall furnish CITY with the following security in a form satisfactory to the CITY Attorney: A. Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred per cent (100%} of the estimate set forth in Pazagraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed. B. Labor and Materials. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one-hundred per cent (100%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shalt be paid therefor. C. if required by CITY, a cash deposit, corporate surety bond, or instrument of credit sufficient to assure CITY that the surface water drainage of the subdivision shall not interfere with the use of neighboring property, including public streets and highways. CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform with the provisions of Chapter S of the Subdivision Map Act. 4. Insurance Required. Prior to conunencing construction of the improvements, DEVELOPER shall obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph Prior to the commencement of work under this Agreement, DEVELOPER'S general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph DEVELOPER shat! not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for DEVELOPER and DEVELOPER'S general contractor shall have been so obtained and approved. Said insurance shall be maintained in full force and effect until the completion of work under this .Agreement and the final acceptance thereof by CITY. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: I) Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) 2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. B, Minimum Limits of Insurance. DEVELOPER shall maintain limits no less than: 1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. C. Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials and employees; or the DEVELOPER shall procure a bond guaranteeing payment of losses and related investigations, clairn administration and defense expenses. D. Other Insurance Provisions, The policies are to contain, or be endorsed to contain, the following provisions: 1) General Liability and Automobile Liability Coveraees. a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of 3 n,,, activities performed by or on behalf of the DEVELOPER; products and completed operations of the DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hircd or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. b) The DEVELOPER's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shat! not contribute with it. ' c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2) Workers' Comyensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees and volunteers for losses arising from work performed by the DEVELOPER for the CITY. 3) All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. b) Verification of Coverage. DEVELOPER shall furnish CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the CITY before work commences. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. c) Subcontractors. DEVELOPER andlor DEVELOPER's general contractor shall include all subcontractors as insureds under its policies 4 1~dr or shall obtain sepazate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 5. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guazantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to the work, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) yeaz after .initial acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one-yeaz guarantee period without expense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and agrees that when defects in workmanship and materials actually appear during the one-yeaz guarantee period, and have been corrected, the guarantee period for the defected items shall automatically be extended for an additional year from the date of the completion of the repair to insure that such defects have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days time, after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guazantee results in a condition which constitutes an immediate hazard to the public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of CITY. If CITY, at its sole option, makes or causes to be made the necessary repairs or replacements or performs the necessary work, DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work, fifty percent (50%) of such costs and expenses for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30) days from the date of billing for such work or repairs. 6. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its City Engineer and designated representative for the safe and convenient inspection of the work throughout its construction. Said CITY representative shall have the authority to reject all materials and workmanship which are not in accordance with the plans and specifications, and all such materials and or work shall be removed promptly by DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the improvement plans and specifications. 5 ~~ 7. Agreement Assignment. This Agreement shall not be assigned by DEVELOPER without the written consent of CITY. 8. Abandonment of Work. Neither DEVELOPER nor any of DEVELOPER'S agents or contractors are or shall be considered to be agents of CITY in connection with the performance of DEVELOPER's obligations under this Agreement. If DEVELOPER refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extension thereof, ar fails to obtain completion of said work within such time, or if DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the benefit of DEVELOPER'S creditors, or if a receiver should be appointed, or if DEVELOPER, or any of DEVELOPER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its City Engineer may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of DEVELOPER. In the event of any such notice of breach of this Agreement, DEVELOPER's surety shall have the duty to take over and complete The Improvements herein specified; provided, however, that if the surety, within thirty (30) days after the serving upon it of such notice of breach, does not give CITY written notice of its intention to take over the performance of the contract, and does not commence performance thereof within thirty {30) days after notice to CITY of such election, CITY may 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 DEVELOPER and DEVELOPER'S surety shall be liable to CITY for any damages and/or reasonable and documented excess costs occasioned by CITY thereby; 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 DEVELOPER as may be on the site of the work and necessary therefor. 9. Notices. All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage prepaid. Notices required to be given to CITY shall be addressed as follows: Mazk Lander, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Jeff White AvalonBay Communities, Inc. 400 Race Street, Suite 200 San Jose, CA 95126 6 1~ and Pat Cashman Surplus Property Authority of the County of Alameda 224 W. Winton Avenue, Room 110 Hayward, CA 94544-1215 Notices required to be given surety of DEVELOPER shall be addressed as follows: Travelers Casualty and Surety Company of America 135 N. Los Robles Avenue Pasadena, CA 91101 Any party or the surety may change such address by notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. 10. Use of Streets or Improvements. At all times prior to the final acceptance of the work by CITY, the use of any or all streets and improvements within the work to be performed under this Agreement shaI1 be at the sole and exclusive risk of DEVELOPER. The issuance of any building or occupancy permit by CITY for dwellings located within the tract shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all such improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially andlor detrimentally affect public health and safety. 11. Safetv Devices. DEVELOPER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the tract site as may be necessary to prevent accidents to the public and damage to the property. DEVELOPER shall fiunish, place, and maintain such lights as may be necessary for illuminating the said fences, barriers, signs, and other safety devices. At the end of all work to be performed under this Agreement, all fences, barriers, regulatory signs, warning lights, and other safety devices (except such safety items as may be shown on the plans and included in the items of work} shall be removed from site of the work by the DEVELOPER, and the entire site left clean and orderly. 12. Acceptance of Work: Upon notice of the completion of all tract work and the delivery of a set of final as-built plans to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine the tract work without delay, and, if found to be in accordance with said plans and specifications and this Agreement, and upon submittal of a warranty bond in the amount of 25% of the estimated cost of The Improvements, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify DEVELOPER or his designated agents of such acceptance. 7 r)~, . 13. Patent and Copyright Costs. In the event that said plans and specifications require the use of any material, process or publication which is subject to a duly registered patent or copyright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. 14. Alterations in Plans and Specifications. Any alteration or alterations made in the plans and specifications which are a part of this Agreement or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. 15. Liabili A. DEVELOPER Primaril Ly fable. DEVELOPER hereby warrants that the design and construction of The Improvements will not adversely affect any portion of adjacent properties and that all work will be performed in a proper manner. DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers agents and employees, from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action of every kind, nature and description, directly or indirectly arising from an act or omission of DEVELOPER, its employees, agents, or independent contractors in connection with DEVELOPER'S actions and obligations hereunder; provided as follows: 1) That CITY does not, and shall not, waive any rights against DEVELOPER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any of the insurance policies described in Paragraph 4 hereof. 2) That the aforesaid hold harmless agreement by DEVELOPER 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 referred to in this paragraph, regardless of whether or not CITY has prepared, supplied, or approved of plans and/or specifications for the subdivision, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 3) Design Defect. If, in the opinion of the CITY, a design defect in the work of improvement becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of the improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, DEVELOPER shall, upon order by the CITY, correct said design defect at his sole cost and expense, and the sureties under the Faithful Performance and Labor and Materials Bonds shall be liable to the CITY for the corrective work required. 8 fn.. . 4) Litgah_on E~P~ ~ ~e event that Legal action is instituted by either Party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event 'ud .entered in said action, the prevailin J gment is and court costs. If CITY is the re gaplu~ shall be entitled to recover its attorneys' fees its attorney's fees and costs in any action a ~~ CITY shall als°, be entitled to recover provided under paragraph 3, gainst DEVELOPER s surety on the bonds 16. Re_. The foregoing Recitals are true and correct and are made a part hereof. IN FITNESS WIiEREOF, the parties hereto have executed this Agreement in du licate Dublin, California, the day and year first above written. p at CITY OF DUBLIN: By: Tim Sbranti, Mayor Date: ATTEST: By: Caroline Soto, City Clerk Date: AV BAY CO TIES, INC. Date: (,~ (~ SURPLUS PROPERTY AUTHORITY OF '~AME~OUNTY i Date: ~ ~ ~c GIDEVELOPMENT, PRNATh'1Dublin Transit Ctrl!'M 8275-Ph 2 Campbell Lanelimprovement agent Ph 2 PM 8275 Avalonl3ay.doc 9