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| CITY COUNCIL AGENDA ITEM NO. 24
Meeting Date: October 22, 2002
Subject/Title: Final Map Approval of Deer Ridge Country Club, Village A, KB Home, Subdivision No. 8253
Submitted by: Engineering: B. Grewal /B. Bornstein/D. Boskovic
Approved by: John Stevenson, City Manager
Approve a Resolution approving the Final Map of Deer Ridge Country Club, Village A, KB Home, Subdivision No. 8253, located south of Balfour Road and east of Mountain View Drive, accepting the improvement security, approving the Subdivision Improvement Agreement, and authorizing the Mayor and City Clerk to execute the same.
On January 19, 1993, by Planning Commission Resolution No. 93-2, the Planning Commission approved Vesting Tentative Subdivision Map No. 7690, with conditions.
On December 5, 2000, the Planning Commission amended Conditions 184, 185 and 186 of Vesting Tentative Map No. 7690.
The Final Map is located south of Balfour Road and east of Mountain View Drive. This Final Map has been checked for conformance with the approved Vesting Tentative Map and all Conditions of Approval. The developer has executed a Subdivision Improvement Agreement; the appropriate improvement security (Faithful Performance and Labor & Materials Bonds No. 3S07632900 for $1,442,193.00) has been posted, and offers of dedication for the appropriate roadways, parcels and easements have been made.
In order for the Final Map to be recorded, the City Council needs to approve both the Final Map and the Subdivision Improvement Agreement, accept the offers of dedication as shown on the map subject to acceptance of the improvements, accept the improvement security, and authorize the Mayor and City Clerk to execute the Subdivision Improvement Agreement.
The developer is responsible for necessary repairs for any material or workmanship defects to subdivision improvements for a period of 12 months following acceptance of the improvements for maintenance. The City will then incur costs, the amount of which is unknown at this time, associated with street sweeping and necessary repairs to streets and/or utilities. Lighting and Landscape Maintenance District 99-5 has been formed for this subdivision and will be responsible for the street lighting and landscape maintenance.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FINAL MAP OF DEER RIDGE COUNTRY CLUB, VILLAGE A, KB HOME, SUBDIVISION NO. 8253, LOCATED SOUTH OF BALFOUR ROAD AND EAST OF MOUNTAIN VIEW DRIVE, ACCEPTING THE OFFERS OF DEDICATION SHOWN THEREON SUBJECT TO ACCEPTANCE OF IMPROVEMENTS, ACCEPTING THE IMPROVEMENT SECURITY, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SAME
WHEREAS, on January 19, 1993, by Planning Commission Resolution No. 93-2, the Planning Commission approved Vesting Tentative Subdivision Map No. 7690, with conditions; and
WHEREAS on December 5, 2000, the Planning Commission amended Conditions 184, 185 and 186 of Vesting Tentative Map No. 7690; and
WHEREAS, Final Map No. 8253 showing 63 lots has been prepared for this subdivision; and
WHEREAS, City staff has checked the Final Map for conformance with the approved Vesting Tentative Map and the Conditions of Approval dated January 19, 1993, and finds that the Final Map is ready for approval.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve the Final Map for Subdivision No. 8253, Deer Ridge Country Club, Village A, and that the offers of dedication shown thereon are hereby accepted subject to acceptance of improvements.
BE IT FURTHER RESOLVED that the Subdivision Improvement Agreement is hereby approved, that the improvement security accompanying said agreement is hereby accepted, and that the Mayor and City Clerk are hereby authorized to execute said Subdivision Improvement Agreement.
BE IT FURTHER RESOLVED that the City Clerk is hereby directed to file this Resolution with the Recorder of Contra Costa County.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 22nd day of October 2002 by the following vote:
This document is recorded for the
benefit of the City of Brentwood
and is entitled to be recorded free
of charge in accordance with
Section 6103 of the Government Code.
After Recordation, Mail To:
Office Of The City Clerk
150 City Park Way
Brentwood, CA 94513
(Deer Ridge Country Club-Village A)
THIS AGREEMENT, made and entered into this _______ day of _____________, 2002, by and between the CITY OF BRENTWOOD, a municipal corporation of California, hereinafter referred to as “CITY” and KB HOME South Bay Inc., hereinafter referred to as “SUBDIVIDER”;
R E C I T A L S:
WHEREAS, SUBDIVIDER is the owner of that certain tract of land, more particularly described as Lot 7 of Subdivision 7690 in Book 407 Page 6, situated in the City of Brentwood, County of Contra Costa, State of California, generally known and described as Subdivision 8253 (Deer Ridge Country Club-Village A); and
WHEREAS, SUBDIVIDER’S application for a vesting tentative map number 7690 was approved by the City of Brentwood Planning Commission on January 19,1993, subject to various conditions; and
WHEREAS, SUBDIVIDER has presented to CITY for approval a final subdivision map entitled “Subdivision 8253 (Deer Creek Country Club-Village A)” dated June 2002, hereinafter referred to as “Map” and incorporated herein by this reference; and
WHEREAS, SUBDIVIDER has requested approval of the Map prior to the construction and completion of Improvements (as defined below); and
WHEREAS, said Map and subdivision of land designates streets, easements and public ways for the CITY, and SUBDIVIDER proposes to dedicate land set forth in the map to the CITY; and
WHEREAS, as a condition precedent to accepting this offer of dedication by SUBDIVIDER, CITY requires the Improvements to be completed at SUBDIVIDER’s sole expense and certain protection for the CITY on behalf of the public; and
WHEREAS, CITY desires to assure that said proposed Improvements will be done in a good and workmanlike manner, in accordance with the Conditions of Approval for Subdivision 8253 (Deer Creek Country Club-Village A), and in accordance with the laws now in force and effect in the City of Brentwood, California, particularly, but not exclusively, Titles 12, 13, 14, 15, and 16 of the Brentwood Municipal Code.
NOW, THEREFORE, for and in consideration of the approval of the Map and the acceptance of the dedications offered therein, and in order to insure satisfactory performance by SUBDIVIDER of SUBDIVIDER’S obligations under tentative map conditions of approval, the Subdivision Map Act, and the Brentwood Municipal Code, the parties agree as follows:
1. Performance of Work. SUBDIVIDER shall, at its own cost and expense, do and perform, or cause to be done or performed, in a good and workmanlike manner, all of the work and improvements, within the subdivision, which are shown on the plans and specifications filed in the Office of the City Engineer as Subdivision 8253 (Deer Creek Country Club-Village A) (“Improvements”), including Supplemental Conditions and Technical Specifications.
2. Standards. All work to be performed hereunder shall be done to the satisfaction of the City Engineer. All Improvements have been shown in detail upon the plans, profiles, and specifications that have been prepared by engineers and/or landscape architects acting for SUBDIVIDER. Said plans, profiles, and specifications have been submitted to and approved by the City Engineer for his approval. No work on said Improvements shall commence until said plans, profiles, and specifications have been submitted to and approved by City Engineer for all other Improvements. Improvements shall be constructed in accordance with said plans, profiles, and specifications and SUBDIVIDER shall do, or cause to be done, all work and furnish all materials necessary in the reasonable opinion of the City Engineer and on his order, to complete the Improvements in accordance with said plans, profiles, and specifications, or with any changes required or ordered by the City Engineer, which in his reasonable opinion are necessary or required to complete the work. All costs of checking said plans, profiles, and specifications, and of all inspections of the work have been or shall be paid by SUBDIVIDER. Any approval under this section does not relieve SUBDIVIDER, or its engineers or landscape architects from liability under Section 16 herein.
Improvements and methods of installation in CITY right of way shall, at a minimum, meet the standards as set forth in the City’s latest Standard Plans and Specifications and in compliance with the latest edition of the Engineering Procedures Manual requirements which documents are incorporated herein by this reference, and all provisions of the Brentwood Municipal Code relating to construction in effect on the date hereof.
3. Soils and Geologic Tests. SUBDIVIDER shall cause to be made at SUBDIVIDER’S cost and expense, soils, and geologic tests by a qualified civil engineer and shall file, or cause to be filed a report or reports satisfactory to the City Engineer, indicating gradation, bearing and resistance value of soils within the subdivision and compliance with the latest edition of the Engineering Procedures Manual requirements, and setting forth recommendations for or constraints on the nature of required Improvements and for development of each lot or Improvement. All clearing and earthwork shall be accomplished in accordance with the plans and required recommendations of the soils report under the supervision of the Soils Engineer. The SUBDIVIDER shall also cause to be made, at SUBDIVIDER’S cost and expense, all compaction tests necessary to determine that the utility trenches have been satisfactorily compacted. The SUBDIVIDER shall provide a soils engineer’s certified letter of compliance, verifying that the earthwork has been completed in accordance with the plans and recommendations of the soils report.
4. Time of Commencement and Completion. Prior to commencement of work, SUBDIVIDER shall obtain all required permits for grading and/or removal of major vegetation from CITY in accordance with the Brentwood Municipal Code and from other jurisdictional agencies. The permits may be phased by the applicant to correspond to the different phases of project construction. Unless otherwise approved by the CITY, all Improvements shall be constructed and approved by the City Engineer prior to occupancy of any building within the area of the Map.
5. Time of Essence. Time is of the essence of this Agreement. The Improvements required by this Agreement to be completed by the SUBDIVIDER shall be completed within one (1) year of the above-mentioned date of this Agreement. In any event, the City Engineer may extend the time for completion of Improvements hereunder, upon good cause being shown by the SUBDIVIDER. Any such extension may be granted without notice to the SUBDIVIDER’S surety, any extension so granted shall not relieve surety’s liability on the bond to secure the faithful performance of this Agreement.
6. Payment of Costs. Without limitation, SUBDIVIDER shall pay, or cause to be paid, all costs and expenses related to or arising from the performance of any work to complete Improvements hereunder, including but not limited to, payment for any materials, provisions, and other supplies used in, upon, for, or about said work, and for any work or labor thereon of any kind, and for amounts due under the Unemployment Insurance Act of the State Of California, with respect to such work or labor.
7. Intentionally Omitted.
8. Acceptance of Work. The City Engineer or his representative shall have the right to reject any and all work to be performed under this Agreement if such work does not conform, in his or his representative’s sole and reasonable judgment, with the plans, profiles, and specifications mentioned herein and with the ordinances and standards of the CITY. Final acceptance of the Improvements shall be by the City Council.
9. Warranty of Plans. Notwithstanding the fact that SUBDIVIDER’S plans, profiles, and specifications, completion of work, and other acts to be performed hereunder are subject to approval by the CITY, it is understood and agreed that any approval by the CITY shall in no way relieve SUBDIVIDER of satisfactorily performing said work or its obligations hereunder. SUBDIVIDER warrants that the plans, profiles, and specifications submitted shall conform as a minimum to the City Standard Plans and Specifications and to applicable provisions of the Brentwood Municipal Code in effect as of the date hereof, and that they are adequate to accomplish the work in a good and workmanlike manner, and in accordance with sound construction practices.
10. Repairs and Replacement. SUBDIVIDER shall replace or have replaced, or repair or have repaired Improvements which have been destroyed or damaged prior to final acceptance of completed work by the City Council. SUBDIVIDER shall also repair or have repaired, replace or have replaced, or pay to the CITY the entire cost of replacement or repairs of any and all property damaged or destroyed, by reason of any work done hereunder, prior to final acceptance of the completed work by the City Council, whether such property be owned by the United States or any agency or political subdivision thereof, or by the CITY or by any public or private corporation, or be any person whomsoever, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
SUBDIVIDER shall repair, or cause to be repaired to the satisfaction of the City Engineer, any damage to the utilities systems, concrete work or street paving or other Improvements shown on the Map and/or the approved Improvements plans that may occur after installation prior to final acceptance of the completed work.
11. Warrant. Without limiting the foregoing paragraph, SUBDIVIDER expressly warrants and guarantees all work performed hereunder and all materials used therein for a period of one (1) year after completion and final acceptance thereof by the City Council. If within said one (1) year period any structure or part of structure furnished and/or installed or constructed, or caused to be installed or constructed by SUBDIVIDER, or any of the work done under this Agreement, fails to fulfill any of the requirements of this Agreement, or the specifications referred to herein as a result of the inadequate workmanship or materials, SUBDIVIDER shall, without delay and without any cost to the CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should SUBDIVIDER fail to act promptly or in accordance with this requirement, or should the exigencies of the situation require repairs or replacements to be made before SUBDIVIDER can be notified, CITY may at its option, make the necessary repairs and replacements or perform the necessary work, and SUBDIVIDER shall pay to the CITY the actual costs, including 15% overhead and administrative fee, of the CITY’S repairs and replacement expenses.
12. Breach of Agreement: Performance by City. If SUBDIVIDER shall refuse or fail to satisfactorily complete the Improvements provided for herein within the time specified above, or any extension or extensions thereof, or if delay in the construction of any portion of the Improvements shall, in the reasonable opinion of the City Engineer, endanger property outside the boundaries of said Map or if the SUBDIVIDER should be adjudged a bankrupt, or shall make a general assignment for the benefit of SUBDIVIDER’S creditors, or if a receiver should be appointed in the event of SUBDVIDER’S insolvency, or if SUBDIVIDER, or any of SUBDIVIDER’S contractors, subcontractors, agents or employees should violate any material provisions of this Agreement, the City Engineer, or his designated representative, may serve written notice upon SUBDIVIDER for breach of this Agreement, or any portion thereof.
In the event of any such notice, CITY may, without relieving SUBDIVIDER of any if its obligations hereunder, take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, for the account, and at the expense of SUBDIVIDER, and the full cost and expense of said work done by the CITY shall be recovered by CITY from SUBDIVIDER.
13. Estimates of Costs: Security. The estimated cost for the work to be done under this Agreement is $1,442,193.00 (One Million, Four Hundred Forty Two Thousand, One hundred ninety three dollars).
Contemporaneously with the execution of this Agreement, SUBDIVIDER shall file with CITY a surety bond or a letter of credit reasonably acceptable to CITY in the sum of the estimated cost set forth above, to guarantee faithful performance of all of the provisions of this Agreement and compliance with all of the provisions of the Brentwood Municipal Code, including Titles 12, 13, 14, 15, and 16 and a labor and material bond or a letter of credit acceptable to CITY in the sum of one hundred percent (100%) of the surety bond securing payment to the contractor, his subcontractor and to persons renting equipment or furnishing labor or materials to them for the Improvements required under this Agreement. Upon completion and approval of the Improvements, Subdivider shall request exoneration of this bond upon providing a Maintenance Bond in an amount not less than 10% of the estimated cost of the Improvements.
14. Permits: Compliance with Law. SUBDIVIDER shall, at SUBDIVIDER’S expense, obtain all necessary permits and licenses for the Improvements hereunder, give all necessary notices and pay all fees and taxes required by law. In the performance of this Agreement, SUBDIVIDER shall comply with all laws, ordinances, regulations, and rules of all governmental agencies having jurisdiction therefor.
15. Inspection by CITY. SUBDIVIDER shall, at all times, maintain proper facilities and provide safe access for inspection by CITY to all parts of the Improvements subject to CITY’S acceptance. SUBDIVIDER shall pay for all engineering, inspection, and survey services in accordance with Brentwood Municipal Code.
16. SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor SUBDIVIDER’S contractors, subcontractors, agents, officers, or employees are agents or employees of the CITY and the SUBDIVIDER’S relationship to the CITY, if any, arising herefrom is strictly that of an independent contractor.
17. Liability. Neither the City nor any of its officers, agents, or employees shall be liable to SUBDIVIDER, its contractor, subcontractors, officers, agents, or employees, for any error or omission, or any obligation whatsoever, arising out of or in connection with any work to be performed under this Agreement. The City and its officers, agents, and employees shall not be liable to the SUBDIVIDER or to any person, firm or corporation whatsoever, for any error or omission, or any obligation or liability whatsoever, arising out of or in connection with any work to be performed under this Agreement. The CITY and its officers, agents, and employees shall not be liable to the SUBDIVIDER or to any person, firm, or corporation whatsoever for any injury or damage that may result to any person or property or any obligation whatsoever from any cause arising in, on, or about the land of the SUBDIVIDER or from performance or failure to perform any provision of this Agreement by SUBDIVIDER.
18. Hold Harmless. SUBDIVIDER hereby agrees to and shall indemnify and hold CITY and its officers, agents, and employees harmless from any and all liabilities, obligations, damages, costs, injuries, or claims, thereof, including, but not limited to, claims for damage or personal injury, including death, and claims for property damage, arising in any manner from the performance or failure to perform the provisions of this Agreement. SUBDIVIDER agrees to, and shall, defend, indemnify, and hold harmless the CITY, its officers, agents, and employees from any suits or actions at law or in equity for damages, liabilities, or obligations caused by or arising from, or alleged to be caused by or arising from, the performance of this Agreement.
City does not, and shall not, waive any rights against the SUBDIVIDER which it may have by reason of the of the aforesaid hold-harmless clause, because of the CITY’S acceptance, or the deposit with City by SUBDIVIDER, of any of the insurance policies described in this Agreement.
The aforesaid hold-harmless clause by SUBDIVIDER shall apply to all damages and claims for damages of every kind suffered, alleged to have been suffered, by reason of any the aforesaid operations referred to in this paragraph, regardless of whether or not CITY has prepared, supplied or approved of, plans and specifications for the subdivision or off-site Improvements, or regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages.
19. Use and Maintenance of Improvements. SUBDIVIDER agrees that the use of any and all of the Improvements hereinabove specified, for any purpose and by any person, shall be at the sole and exclusive risk of the SUBDIVIDER at all times prior to final acceptance by CITY. SUBDIVIDER agrees to assume all maintenance responsibilities for the Improvements until one year after the acceptance of Improvements by City Council. This shall in no way eliminate discharge, or lessen any of SUBDIVIDER’S obligations and undertakings contained in this Agreement. The issuance of any occupancy permits by CITY for dwellings or offices located within the subdivision shall not be construed in any manner to constitute acceptance or approval of any or all of the Improvements to be constructed hereunder.
(a) Prior to the commencement of any work, SUBDIVIDER shall
furnish to the CITY, a certificate of insurance establishing satisfactory evidence of a project specific policy of liability insurance which shall be maintained at all times during the performance of their Agreement and until the acceptance of the Improvements by the City Council, in form and by a responsible company reasonably satisfactory to the CITY, insuring that the CITY, its officers, agents, and employees against loss or liability arising out of the condition of the premises or any of the work to be performed under this Agreement by SUBDIVIDER, including all costs of defending any claim arising as a result thereof. All insurance companies affording coverage to the SUBDIVIDER shall be required to add the City of Brentwood as “additional insured” under the insurance policy for all work performed in accordance with this Agreement. Said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability stated in the declarations, and that if any of the CITY insureds have other insurance against the loss covered by said policy or policies, the other insurance shall be excess only. Said policy or policies shall provide for insurance in accordance with CITY requires minimum limits in the amount of Five Million Dollars ($5,000,000) for bodily injury or death, each person, and Five Million Dollars ($5,000,000) for bodily injury or death, aggregate, and Five Million Dollars ($5,000,000) for property damage, aggregate. All insurance companies affording coverage to the SUBDIVIDER shall be insurance organization authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California reasonably acceptable to the City Attorney, preferable with a Best’s rating of not less than A:VII. Each policy shall contain an endorsement that said policy shall not be cancelled or coverage reduced except upon thirty (30) days’ advance written notice thereof to the CITY.
(b) Worker’s Compensation Insurance. SUBDIVIDER shall take out and maintain, during the life of this Agreement, Workers’ Compensation insurance for all SUBDIVIDER’S employees employed at the site of all Improvements, and in case any work is sublet, SUBDIVIDER shall require any general contractor or subcontractor similarly to provide Workers’ Compensation insurance for contractor’s or subcontractor’s employees, unless such employees are covered by the protection afforded by SUBDIVIDER. In case any class of employees engaged in work under this Agreement at the site of the project is not protected under any Workers’ Compensation law, SUBDIVIDER shall provide, and shall cause each contractor and subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. Contractor hereby indemnifies CITY for any damage resulting to it from failure of either SUBDIVIDER, its agents, employees, contractor, or subcontractor to take out or maintain such insurance.
21. Title to Improvements. Title to and ownership all Improvements constructed hereunder shall vest absolutely in CITY for the Improvements it accepts upon completion and acceptance thereof by the CITY.
22. Final Drawings. Upon completion of all Improvements and prior to final acceptance, SUBDIVIDER shall supply CITY with one permanent photo mylar, 4 mil, reverse-reading matte surface up set of “as-built” drawings and a DWG or DXF electronic file format. These drawings shall be certified by the qualified person as being “as-built” and shall reflect the job as actually constructed, with all changes incorporated therein.
23. Notice of Completion. SUBDIVIDER shall file, or cause to be filed, a Notice of Completion of the Improvements herein specified.
24. Final Inspection, Certification and Acceptance. All of the Improvements must be completed prior to the final inspection. Notice in writing, requesting final inspection, shall be submitted to the City Engineer at least five (5) days prior to the anticipated date. Upon the satisfactory completion of the Improvements by the SUBDIVIDER, the City Engineer shall certify that the work of said Improvements has been satisfactorily completed, shall recommend formal acceptance of the Improvements by the City Council, and shall place the matter on the next available agenda for City Council action.
25. Streets, Street Lights, Trees, Landscaping and Maintenance. All Improvements shall be performed by SUBDIVIDER in accordance with the applicable conditions of approval of the Map and Brentwood Municipal Code. SUBDIVIDER shall submit a form of financial security in the amount of 100% of the cost of such work and improvements.
Issuance of any Occupancy Permits by City for any dwelling, office, or other land use within the tract, at any state of development, shall not be construed to be an acceptance of Improvements, or final acceptance of said tract by the City Council or the City.
26. Assignment of Contract. Neither this Agreement, nor any part hereof, shall be assignable by SUBDIVIDER without the written consent of the CITY, not to be unreasonably withheld or delayed.
27. Off-Site Improvements. SUBDIVIDER shall comply with all applicable Tentative Subdivision Map 7690 Conditions of Approval that may apply to off-site Improvements. Building permit restrictions may apply for compliance with these conditions.
28. Binding on Successors. The terms, covenants, and conditions of this Agreement shall apply to, and shall bind the heirs, successors, executors, administrators, assigns, contractors, and subcontractors of the parties.
29. Costs and Attorney’s Fees. In the event of any litigation, alternative dispute resolution procedure, or arbitration regarding the rights or obligations of any party to this Agreement, the prevailing party in such proceeding , in the discretion of the judge or decision-maker, shall be entitled to recover cost, including reasonable attorney’s fees.
30. Notices. The address for Notices may be changed by the giving of written notice of such change in the manner provided herein. All notices certified mail, addressed as follows:
To CITY: Office of the City Clerk
150 City Park Way
Brentwood, CA 94513
TO SUBDIVIDER: KB Home South Bay Inc.
2201 Walnut Avenue, Suite 150
Fremont, CA 94538
Attn: Ray Panek
31. Recording. This Agreement shall be recorded with the Office of the Contra Costa County Recorder concurrently with the Map. Notwithstanding the foregoing, in no event shall the Agreement encumber any residential lot upon which single family residences have been constructed and sold to the public.
IN WITNESS WHEROF, the parties here to have caused this Agreement to be executed the day and year first above written.
SUBDIVIDER: CITY OF BRENTWOOD:
KB HOME South Bay Inc. _____________________________
Company Michael A. McPoland, Mayor
Title Karen Diaz, CMC, City Clerk
Approved as to form:
Dennis Beougher, City Attorney
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441