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HomeMy WebLinkAboutReso 188-04 DubRchStrmDranLineD RESOLUTION NO. 188 - 04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING THE IMPROVEMENT AGREEMENT WITH THE LIN FAMILY AND THE SIERRA LAND DEVELOPMENT CORPORATION FOR STORM DRAIN LINE D-FALLONROAD & CENTRAL PARKWAY, DUBLIN RANCH, AREA B WHEREAS, the Lin Family and the Sierra Land Development Corporation, the developers of Dublin Ranch, intend to construct storm drain improvements to serve Dublin Ranch; and WHEREAS, the Lin Family and the Sierra Land Development Corporation have executed and filed with the City of Dublin an Improvement Agreement to install said storm drain improvements in accordance with approved improvement plans; NOW, THEREFORE, BE IT RESOLVED that said Improvement Agreement, attached hereto as Exhibit "A". is hereby approved. BE IT FURTHER RESOLVED that the Mayor is hereby authorized by the City Council to execute the Improvement Agreement. PASSED, APPROVED AND ADOPTED this 21st day of September, 2004. AYES: Councilmembers Oravetz, McCormick, Sbranti, Zika and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None K2/G/9-21-04/reso-lineD-lin (Item 4.7) g:\developldublin ranch\infTastructurelstonn drain lines c & d area c\resolution lin agree. doc ~PROVEMENTAGREEMENT STORM DRAIN LINE D ~ FALLON ROAD & CENTRAL P ARKW A Y Dublin Ranch, Area B This agreement is made and entered into this 21st day of September, 2004, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and Chang Su-O-Lin (also known as Jennifer Lin), Hong Lien Lin (also known as Frederic or Frederich Lin) and Hong Yao Lin (also known as Kevin Lin) ("the Lins"), and Sierra Land Development Corporation, a California Corporation ("Sierra Land") (the Lins and Sierra Land are hereinafter referred to collectively as "OWNER"). RECIT ALS WHEREAS, the Lins are owners of certain land within the City of Dublin, known as Dublin Ranch. Development projects in Dublin Ranch will be served by drainage improvements described in the Dublin Ranch Master Drainage Plan prepared by MacKay & Somps. The portion of the Master Drainage Plan identified as Storm Drain Line D along Fallon Road and Central Parkway is the subject of this Improvement Agreement. Sierra Land is a legal entity controlled by the Lins that the Lins propose to use to construct the improvements; WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State of California, that OWNER desires to construct and dedicate the following improvements (hereafter collectively "The Improvements"): A 60" stonn drain line along Central Parkway from Lockhart Street to Fallon Road, a 54" stonn drain line along Fallon Road to the existing 48" outfall from Area A, and a 24" stonn drain line connecting to the existing outfall at the fire station. The Improvements shall be constructed in accordance with the plans, Dublin Ranch, Area B, Storm Drain Line D Improvements -Fallon Road & Central Parkway, prepared by MacKay & Somps, approved by the City Engineer on September 7, 2004 and consisting of 8 sheets. These plans are hereby referred to for a more definite description of the work to be performed under this Agreement as set forth at length herein; WHEREAS, OWNER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept OWNER's offer(s) of dedication of right-of-way and The Improvements in consideration for OWNER's satisfactory performance of the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: Section 1. Completion Time. OWNER will commence construction of The Improvements within ninety (90) days following the date on which CITY executes this Agreement. OWNER shall complete such Improvements no later than two years following execution of this agreement. Time is of the essence in this Agreement. IMPROVEMENT AGREEMENT Stonn Drain " D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 1 of 9 Section 2. Estimated Cost of Improvements. For purposes of this Agreement, the estimated cost of constructing The Improvements is agreed to be $ 500,000. Said amounts include costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured. Section 3. Bonds Furnished. Prior to commencing construction of the improvements, OWNER (or either the Lins or Sierra Land) 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 percent (100%) of the estimates set forth in Paragraph 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 à general surety business in the State of California, or an instrument of credit equivalent to one hundred percent (100%) of the estimates set forth in Paragraph 2 and sufficient to assure CITY that OWNER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor. CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisions of Chapter 5 of the Subdivision Map Act. Section 4. Insurance Required. Prior to commencing construction of the improvements, OWNER shaU obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, or his designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, OWNER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, as to form, amount and carrier. OWNER shall not allow any contractor or subcontractor to commence work on this contract or subcontract until aU insurance required for OWNER and OWNER'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 shaU 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 Liabilitv and Insurance Services Office form IMPROVEMENT AGREEMENT Storm Drain" D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 2 of 9 number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) (ii) Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. (iii) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits ofInsurance. OWNER shall maintain limits no less than: (i) 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. (ii) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. (iii) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California an<.1; Employers Liability limits of$l,OOO,OOO 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 OWNER shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: (i) General Liabilitv and Automobile Liabilitv Coverages. (a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf ofthe OWNER; products and completed operations of the OWNER; premises owned, occupied or used by the OWNER; or automobiles owned, leased, hired or borrowed by the OWNER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. IMPROVEMENT AGREEMENT Stann Drain" D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 3 of 9 (b) The OWNER'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 OWNER's insurance and shall 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 OWNER'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. (ii) Workers' Compensation 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 OWNER for the CITY. (iii) 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 ofInsurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. (b) Verification of Coverage. OWNER 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. OWNER and/or OWNER's general contractor shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. IMPROVEMENT AGREEMENT Storm Drain" D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 4 of 9 Section 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, OWNER guarantees all work executed by OWNER and/or OWNER'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) year after acceptance of the entire work by CITY. OWNER 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-year guarantee period without expense or charge of any nature whatsoever to CITY. OWNER further covenants and agrees that when defects in design, workmanship and materials actually appear during the one-year guarantee period, and have been corrected, the guarantee period shall automatically be extended for the corrected items for an additional year to insure that such defects have actually been corrected. In the event the OWNER shall fail to comply with the qonditions of the foregoing guarantee within thirty (30) days time or such longer time period as agreed to in writing by the City Engineer, 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 OWNER 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 guarantee 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 OWNER 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 perfonns the necessary work, OWNER shall pay, in addition to actual costs and expenses of such repair or work, twenty-five percent (25%) of such costs and expenses for overhead and interest at the maximum rate of interest pennitted by law accruing thirty (30) days from the date of billing for such work or repairs. Section 6. Inspection of the Work. OWNER shall guarantee free access to CITY through its City Engineer and his 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 OWNER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the Improvements plans and specifications. Section 7. Agreement Assignment. OWNER shall not assign this Agreement without the written consent of CITY, which consent shall not be unreasonably withheld. IMPROVEMENT AGREEMENT Storm Drain" DO, - Fallon Rd & Central Pkwy, Duhlin Ranch Page 5 of 9 Section 8. Abandonment of Work. Neither OWNER nor any of OWNER's agents or contractors are or shall be considered to be agents of CITY in connection with the performance of OWNER's obligations under this Agreement. If OWNER 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, or fails to obtain completion of said work within such time, or if OWNER should be adjudged as bankrupt, or should make a general assignment for the benefit of OWNER's creditors, or if a receiver should be appointed, or if OWNER, or any of OWNER'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 OWNER and OWNER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of O'WNER. In the event of any such notice of breach of this Agreement, OWNER'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 OWNER and OWNER'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 OWNER as may be on the site of the work and necessary therefor. Section 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: Melissa Morton Public Works Director City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to OWNER shall be addressed as follows: Martin Inderbitzen Attorney at Law 7077 Koll Center Plaza, #120 Pleasanton, California 94566 and The Lin Family c/o James Tong 4690 Chabot Drive, Suite 100Pleasanton, CA 94588 IMPROVEMENT AGREEMENT Storm Drain" D" . Fallon Rd & Central Pkwy, Dublin Ranch Page 6 of 9 Notices required to be given surety of OWNER shall be addressed as follows: Gregory Pribyl The Insco Dico Group 3100 Oak Road, Suite 260 Walnut Creek, CA 94596, California 94566 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. Concurrently with the execution of this Agreement, OWNER has executed and has caused to be acknowledged an abstract of this Agreement. OWNER agrees CITY may record said abstract in the Official Records of Alameda County. Section 10. Safety Devices. OWNER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the site of The Improvements as may be necessary to prevent accidents to the public and damage to the property. OWNER shall furnish, 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 perfonned 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 OWNER, and the entire site left clean and orderly. Section 11. Acceptance of Work and Easement. Upon notice of the completion of The Improvements and the delivery of a set of final as-built mylar plans with electronic file to CITY by OWNER, CITY, through its City Engineer or his designated representative, shall examine the work without delay, and, if found to be in accordance with said plans and specifications and this Agreement, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify OWNER or his designated agents of such acceptance. Concurrently with the notice of completion, OWNER shall grant to CITY a right of entry or such other right of access (including right of way and maintenance easements) as may be deemed necessary by the City Engineer for the maintenance of The Improvements, and, at acceptance of the Work, CITY shall also accept the right-of-way and maintenance easement dedication. The right of access shall be over the property described in Exhibit A. Section 12. 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, OWNER 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. Section 13. Alterations in Plans and Specifications. Any alteration or alterations made in the plans and specifications which are apart of this Agreement or any provision of this Agreement shall not operate to release any surety or sureties from IMPROVEMENT AGREEMENT Storm Drain" D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 7 of 9 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. Section 14. Liabilitv. a. OWNER Primarily Liable. OWNER hereby warrants that the design and construction of The Improvements will be performed in a proper manner. OWNER 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 OWNER, its employees, agents, or independent contractors in connection with OWNER'S actions and obligations hereunder; provided as follows: (i) That CITY does not, and shall not, waive any rights against OWNER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by OWNER, of any of the insurance policies described in Paragraph 3 hereof. (ii) That the aforesaid hold harmless agreement by OWNER 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 detennined to be applicable to any of such damages or claims for damages. b. Design Defect. If, in the opinion of the CITY, a design defect in the work of Improvements 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 ofthe CITY, may substantially impair the public health and safety, OWNER 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. c. Litigation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Af,'1'eement or seeks to specifically enforce the tenns of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. If CITY is the prevailing party, CITY shall also be entitled to recover its attorney's fees and costs in any action against OWNER's surety on the bonds provided under Section 3. Section 15. Right of Entry. CITY grants to OWNER a right of entry to enter upon the property within Fallon Road with such IMPROVEMENT AGREEMENT Storm Drain" DO, . Fallon Rd & Central Pkwy, Dublin Ranch Page 8 of 9 personnel, equipment, machinery, vehicles and materials as may be necessary for the sole purpose of construction of The Improvements pursuant to this AgreemenC This right of entry shall be effective upon the date of this agreement and shall terminate on upon acceptance of The Improvements by the City. There shall be no payment for the right of entry. OWNER's obligation to indemnify, defend and hold CITY hannless, as described in Section 15, shall be applicable to any acts oromissions of OWNER, its contractors, subcontractors and agents, in connection with this right of entry. Section 16. Indemnification and Waiver. OWNER shall defend CITY, its officers, employees and officials, against any claims or actions (including declaratory or injunctive relief) concerning OWNER's construction of The Improvements on OWNER's property and shall indemnify and hold CITY harmless from any damages, charges, fees or penalties that may be awarded or imposed against CITY and/or OWNER in connection with, or on account of, OWNER's construction of The Improvements and/or CITY's failure to enforce or comply with any applicable laws. Section 18. Recitals. The foregoing Recitals are true and correct and are made a part hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year fi~st above written. F DUBLIN: OWNER: þ=-" , ~W; ~ t1 Date: f ~r/ .... {/--/ H ng L~,i ,Lin (also known as re4erich or Frederic Un) t;2ø ~ ~?/ #fj:.prr B Date: f-/,.-u'/ o Yao Lin (also known as Kevin Un) Þ ~' A- ;::T~12?¡;¿'-';J ,A??"jJD:r r ." ATTEST: " AND DEVELOPMENT CORPORATION Date: /'-/' v...,L Approved as to Form: Approved as to Form: Elizabeth H. Silver, City Attorney ---) , 771 ¿> ?~I C---ví Martin W, Inderbitze , IMPROVEMENT AGREEMENT Storm Drain" D" - Fallon Rd & Central Pkwy, Dublin Ranch Page 9 of 9 EXHIBIT A EASEMENTS Real property in the City of Dublin, County of Alameda, State of California, described as follows: Parcels 8,14, and 16 as shown on the Final Map of Tract 7281, filed~, 2004, Map Book..2rr., Pages ß2.. to -81i inclusive, Alameda County Records. IMPROVEMENT AGREEMENT Storm Drain" D" - FalJon Rd & Central Pkwy, Dublin Ranch Page 10 of 9