HomeMy WebLinkAboutItem 4.14 DubBl ImpvmtAgmtNess CITY CLERK FILE #600-30
AGENDA STATEMENT
CITY COUNCZL MEETZNG DATE: August 2002
SUBJECT: Approval of Improvement Agreement with Ness Family Partners LP
for Improvements to Dublin Boulevard and Future Scarlett Drive
Report Prepared by: Lee SD Thompson, Public Works Director
ATTACHMENTS: 1) Resolution approving the Improvement Agreement
2) Improvement Agreement with Ness Family Partners LP
3) Vicinity Map
· RECOMMENDATION: Adopt the resolution approving the Improvement Agreement with
Ness Family Pamers LP for improvements to Dublin Boulevard and
future Scarlett Drive
FINANCIAL 'STATEMENT: Ness Family Partners LP has provided a Performance Bond and a
Labor and Materials Bond to guarantee construction of public right-
of-way improvements to Dublin Boulevard and future Scarlett
Drive, and will pay the cost of associated construction inspection.
Once these improvements have been constructed and accepted, the
City will incur maintenance costs for the City street improvements.
DESCRIPTION: The Ness Family Partners LP project (also referred to as the "Aden
Ness" motorcycle parts and mail-order business), located at the southeast comer of Dublin Boulevard and
future Scarlett Drive adjacent to Chabot Canal, was Originally approved by Staff in 1997, and has been
under construction since that time. As part of the project approval, the applicant agreed to dedicate right-
of-way and install street improvements for Dublin Boulevard and future Scarlett Drive along the property
frontages. The right-of-way has already been dedicated.
When the neighboring property to the south develops, the segment of Scarlett DriVe constructed by the
applicant will connect to the segment previously built by Bay Automotiye Properties as part of the Dublin
Nissan project. This will create a continuous roadway connection between Scarlett Court and Dublin
Boulevard along the east side of Chabot Canal. The City can then convert existing Scarlett Drive on the
west side of Chabot Canal to southbound-only lanes, and new Scarlett Drive on the east side of Chabot
Canal to northbound-only lanes. In the interim, the segment of Scarlett Drive to be built by the applicant
will remain closed, with access to the building provided by a right-mm in, right-mm out driveway on
Dublin Boulevhrd.
COPIES TO: Jonathan Gold, Ness Family Partners
G:\develop\arlen ness\agst, doc / ~ ~,~
An Improvement Agreement, guaranteed by Performance and Labor and Materials Bonds, has been
executed by the Ness Family Partners LP to assure that all required right-of-way improvements are
installed to the City's satisfaction. The improvement plans for this project have been reviewed and found
to be in substantial conformance with the Conditions of Approval and adopted City standards. Required
fees, bonds, insurance certificates and the signed Improvement Agreement have also been submitted~
Staff recommends that the City Council adopt the Resolution approving the Improvement Agreement with
Ness Family Partners LP for improvements to Dublin Boulevard and Scarlett Drive°
Page 2 ~r~ ~
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE IMPROVEMENT AGREEMENT
FOR IMPROVEMENTS TO DUBLIN BOULEVARD AND FUTURE SCARLETT DRIVE
(NESS FAMILY PARTNERS L.P.)
WHEREAS, the public right-of-way for Dublin Boulevard, in the incorporated territory of the
City of Dublin, State of California, to serve the proposed Ness Family Partners LoP. project, has been
irrevocably dedicated to the public via an Irrevocable Offer of Dedication document recorded on January
25, 2001 (Series No. 2001028788), all in accordance with the Findings of Approval of an Appealable
Action Letter for P.A. 97-030 approved by the Community Development Director on December 1, 1997;
and
WHEREAS, the applicant, Ness Family Partners L.P,, has executed and filed with the City
of Dublin an Improvement Agreement (contract) to improve Dublin Boulevard and Scarlett Drive in
accordance with the right-of-way dedication document, the improvement plans, and the specifications
attached thereto; and
WHEREAS, said contract is secured by bonds in the total amount of $199,000.00 (Bond No.
878716S by Developers Surety and Indemnity Company), conditioned upon faithful performance of said
Agreement; and
WHEREAS, said contract is secured by bonds in the total amount of $199,000.00 (Bond No.
878716S by Developers Surety and Indemnity Company), conditioned upon payment for labor performed
or material furnished under the terms of said Agreement;
NOW, THEREFORE, BE IT RESOLVED that said Agreement and bonds be and they are hereby
approved, and the Mayor is hereby authorized by the City Council to execute the contract.
PASSED, APPROVED AND ADOPTED this 6th day of August, 2002.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
CITY OF DUBLIN
IMPROVEMENT AGREEMENT
This agreement is made and entered into this ~e'ru day of A~s'r, 2002, by and
between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and
NESS FAMILY PARTNERS LP, hereinafter referred to as "DEVELOPER".
RECITALS
WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State
of California, that DEVELOPER, desires to improve and dedicate those public improvements
and other required site improvements (hereafter "The Improvements") required by City of
Dublin Appealable Action Letter for PA 97-030 dated 12/01/97 in accordance with the
requirements and conditions set forth in said letter, the requirements of the Subdivision Map
Act of the State of California, the Subdivision Ordinance of the CITY, and those certain plans
and specifications for said development approved by CITY on ,~'u~,*f E>~b~'~4 ,2002, titled
"Improvement Plans for Arien Ness, Inc. and Scarlett Drive, 6050 Dublin Boulevard, Dublin
CA" (Sheets C-1 through C-9, SU-1, SN, and S1 through S3) by Bellecci & Associates, Inc.
and others, and now on file in the office of the Public Works Director/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; and
WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within
the time hereinafter specified, and CITY intends to accept DEVELOPER's offer(s) of
dedication of The Improvements in consideration for DEVELOPER'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:
1. Completion Time.
DEVELOPER will commence construction of The Improvements within thirty (30) days
following the date on which CITY executes this Agreement. DEVELOPER shall complete
said work not later than three hundred sixty-five (365) days following said date of execution.
Time is of the essence in this Agreement. Upon completion, DEVELOPER shall furnish CITY
with a complete and reproducible set of final as-built plans of The Improvements, including
any authorized modifications.
2. Estimated Cost of Improvements.
The estimated cost of constructing The Improvements required by this agreement as
adjuSted for inflation is agreed to be One-Hundred Ninety-Nine Thousand Dollars exactly
($199,000.00). Said amount includes costs and reasonable expenses and fees which may
be incurred in enforcing the obligation secured.
3. Bonds Furnished.
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 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 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
shall 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 5 of the Subdivision Map Act.
4. Insurance Required.
Concurrently with the execution hereof, DEVELOPER shall obtain or cause to be
obtained and filed with the CITY, all ~nsurance 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, DEVELOPER'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. DEVELOPER shall 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
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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:
1) 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, claim 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 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 of the DEVELOPER;
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products and completed operations of the DEVELOPER;
premises owned, occupied or used by the DEVELOPER; or
automobiles owned, leased, hired 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, em ployees 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 DEVELO.PER'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 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' 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 DEVELOPER for the CITY.
3) All COVeraqes.
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 Coveraqe. 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.
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~ c) Subcontractors. DEVELOPER and/or DEVELOPER'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.
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
guarantees 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)year 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-
year guarantee period without expense or charge of any nature whatsoever to CITY.
DEVELOPER 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 an additional Year 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 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 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 Public Works
DirectodCity 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
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DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict
accordance with the improvement plans and specifications.
7. Agreement Assiqnment.
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, .or 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 Public Works Director 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 sur~ety
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.
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:
City of Dublin
Attention: City Clerk
100 Civic Plaza
Dublin, CA 94568
Page. 6
Notices re.quired to be given to DEVELOPER shall be addressed as follows:
' ' -. /l '- V
~.'"J~ ~¢~'4J'" ~ Address
~(~ [½~l[~ ~ ~~ City, State, Zip A~ention: ~~ ~/~
Notices required to be given surety of DEVELOPER shall be addressed as follows:
.~'"I'~E~t$ '"' dENK~N~ Company Name
/4-5;5 ~&iSf'o~$E }l~o,~l~ Address ~'u,/'~' 2~0
~ACRA~NYb. CA ~58' 15 City, State, Zip
Attention: ~¢~ ~ ER~
Any pa~y or the surety may change such address by notice in writing to the other pa~y
and thereafter notices shall be addressed and transmitted to the new address.
Concurrently with the execution of this Agreement, DEVELOPER has executed and
has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CI~
may record said abstract in the Official Records of Alameda County'.
9. 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 pedormed under this Agreement shall 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 padial 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 and/or detrimentally
affect public health and safety.
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10. Safety 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 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 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.
11. 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, shall recommend acceptance of the
work to the City Council and, upon such acceptance, shall notify DEVELOPER or his
designated agents of such acceptance.
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, 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.
13. 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.
14. LiabilitY.
¢ A. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the
design and construction of The Improvements will not adversely affect any portion of
adjacent properties and that alt 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
Page 8
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.
4) 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 Agreement or seeks to specifically enforce the terms of this Agreement,
and, in the event judgment is entered in said action, theprevai!ing 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 DEVELOPER's surety on the bonds provided under paragraph 3.
15. Recitals.
The foregoing Recitals are true and correct and are'made a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate at Dublin, California, the day and year first above written.
CITY OF DUBLIN
By:,
,Janet Lockhart, Mayor
ATTEST:
CITY Clerk
' ~ .,~ or Printe~ Name
EHS:rja
May 4, 1999
tract development agmt form,doc
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