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CITY COUNCIL AGENDA ITEM NO. 2
Meeting Date: May 27, 2003
Subject/Title: Final Map Approval of Stonegate, Apricot Venture, Subdivision No. 8408
Submitted by: Engineering: B. Grewal /B. Bornstein/ D. Boskovic
Approved by: John Stevenson, City Manager
In addition, Maggiora Property (south of this subdivision) has some other access easements across this subdivision project, northerly to Apricot Way. The Developer and the Maggiora Property owner have had extensive negotiations to resolve these easement issues from April 2000 through September 2002. City staff was also involved in some of these negotiation meetings. During these negotiations at one time they were close to an agreement, which included monetary compensation from Developer to the Maggiora Property owner, the improvement to serve the Maggiora Property, but exempting the property from any Benefit Assessment District requested by this Developer, and some other improvements per their mutual agreements. However, this agreement did not materialize for acceptance by both parties.
Due to the required off-site improvements, City staff also facilitated a few meetings between both parties to work out an acceptable resolution. Both the Developer and property owner could not agree on acceptable terms.
In September 2002, Developer revised these improvement plans and submitted a substantial conformance map for Tentative Subdivision Map No. 8408 to accommodate the existing easements across their subdivision. Staff met with the Planning Commission Chairman to discuss the changes and then the City approved the substantial conformance map in September 2002. Subsequently, the Developer negotiated the utility easements with the property owners on the east side of Maggiora Property and was able to acquire the necessary easements to accommodate the public utilities. The necessary easement document has been executed by the property owners and will be recorded simultaneously with the Final Map. The grading and improvement plans have been reviewed and approved by the City. The City has issued grading and encroachment permits to construct the on and off-site improvements for this subdivision. The Developer has complied with all the required Conditions of Approval for this map to be approved.
Further, Developer has been required by the City to purchase certain land adjacent to its site (off-site public improvements) in order to provide safer road realignment of Montclair Place near and at its intersection with Apricot Way. Pursuant to Government Code Section 66485, et seq., Developer is entitled to recover from the owner of the benefited properties pro-rata share of cost for off-site improvements that benefit other properties.
This Final Map has been checked for conformance with the approved Tentative Map and all Conditions of Approval. The Developer has executed a Subdivision Improvement Agreement; the appropriate improvement securities (Faithful Performance and Labor & Materials Bond No. B3 423 1287 for In-Tract Improvements and Faithful Performance and Labor & Materials Bond No. B3 423 1288 for Apricot Way Improvements) have been posted, and offers of dedication for the appropriate roadways, parcels, and easements have been made.
Since the Final Map conforms to all the requirements of the State Subdivision Map Act and local subdivision ordinance applicable at the time of the Conditions of Approval of this Tentative Map, the City Council shall approve the Final Map. Further, staff recommends that the City Council approve the Subdivision Improvement Agreement, accept the offers of dedication in fee as shown on the map, accept the improvement security, and authorize the Mayor and City Clerk to execute the Subdivision Improvement Agreement.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FINAL MAP OF STONEGATE, APRICOT VENTURE, SUBDIVISION NO. 8408, LOCATED SOUTH OF APRICOT WAY AND WEST OF FAIRVIEW AVENUE, 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 July 17, 2001, by Planning Commission Resolution No. 01-55, the Planning Commission approved Tentative Subdivision Map No. 8408, with conditions; and
WHEREAS, Final Map No. 8408 showing 55 lots has been prepared for this subdivision; and
WHEREAS, City staff has checked the Final Map for conformance with the approved Tentative Map and the Conditions of Approval dated July 17, 2001, 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. 8408, Stonegate, and that the offers of dedication shown thereon are hereby accepted subject to acceptance of improvements except Parcel “A”, which will be accepted in fee with this map and the filing of this map shall constitute the abandonment of the “Area dedicated to Contra Costa County for roadway purposes”, as filed in Book 82 of Parcel Maps at Page 33, and a “20 foot strip dedicated to Contra Costa County for drainage purposes”, as filed in Book 21 of Parcel Maps at Page 50, Contra Costa County Records per Section 66499.20 1/2 of the Subdivision Map Act.
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 27th day of May 2003 by the following vote:
This document is recorded for
THIS AGREEMENT, made and entered into this ______ day of _____________, 200_, by and between the CITY OF BRENTWOOD, a municipal corporation of California, hereinafter referred to as “CITY” and APRICOT VENTURE, LLC, 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 “A Portion of Lots 236 and 237 as shown on that Certain Final Map [Subdivision Number Six of Brentwood Irrigated Farms Amended] Recorded August 4, 1920 in Book 17 of Maps at Page 371, and all of that Certain Lot Line Adjustment 02-16 recorded August 19, 2002 in Series No. 2002-288940” situated in the City of Brentwood, County of Contra Costa, State of California, generally known and described as Subdivision 8408, Stonegate; and
WHEREAS, SUBDIVIDER’S application for a tentative map, 8408 was approved by the City of Brentwood Planning Commission on July 17, 2001, subject to various conditions; and
WHEREAS, SUBDIVIDER has presented to CITY for approval a final subdivision map entitled “Subdivision 8408, Stonegate” dated January 2003, 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; 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 of public right of way, installation or extension of certain
CITY services at SUBDIVIDER sole expense and certain protection for the
CITY on behalf of the public; and
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 and/or outside the subdivision, which are shown on the Map, or on improvement plans, profiles, and specifications which have been submitted to the City Engineer or his authorized representative or may hereafter be so submitted, as finally approved, or which improvements are required as conditions of approval of the subdivision by the CITY, or are required to be done by any provision of law as a condition of said subdivision. Said improvements include, but are not limited to curbs, gutters, and sidewalks, grading, signing and striping, fiber optics, pavements, water systems, joint trench, fire hydrants, sound wall, driveway approaches and pedestrian crosswalks, storm and sanitary sewers, underground utilities, signal improvements, street lighting, roadway improvements, landscaping, survey monuments, and all appurtenant improvements. Said plans and specifications are filed in the Office of the City Engineer as Subdivision 8408 “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 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 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. Direct buried cable of any utility company
(PG&E, Pacific Bell, AT&T, etc.) shall not be allowed. Conduit
must be installed at the expense of SUBDIVIDER.
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 work and 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. Off-Site Improvements. Without limitation, SUBDIVIDER shall pay, cause to be paid, or reimburse, CITY for all costs and expenses related to arising from the performance of any work to complete Improvements, hereunder, including, but not limited to, payment for any materials. provisions, labor, other supplies used in, upon for, or about costs incurred by the CITY. Such costs and expenses shall also include, but not limited to, any engineering, plans and specifications, city personnel or consultant costs to prepare right of way maps and related documents, construction management, escrow payments, contract administration, encroachment permit costs, utility relocation costs, and legal fees.
SUBDIVIDER shall also construct and reimburse CITY for all costs and expenses related to arising from the performance of any work hereunder, including, but not limited to, payment for any materials, provisions, labor, other supplies used in, upon for, or about costs incurred by the CITY or SUBDIVIDER’S general contractor in connection with off-site Improvements, if any. Costs and expenses shall also include, but not limited to, any engineering, plans and specifications, city personnel or consultant costs to prepare right of way maps and related documents, construction management, escrow payments, contract administration, encroachment permit costs, utility relocation costs, and legal fees.
8. Benefit District. As Subdivider has been required by the City to purchase land adjacent to its site (off site public improvements) in order to provide a safer road realignment of Montclair Place near and at the intersection of Apricot Way and Montclair Place. Subdivider shall be entitled to receive up to $20,000 in costs, (costs shall only include attorney's fees and any filing costs), if it successfully quiets title to a non-exclusive access easement granted to benefit property generally known as Parcel 2 of Parcel Map No. MS 14-79 (82 PM 33) and generally know as APN 019-092-024. The easement in question was recorded, after the offer of dedication of Montclair Place, in Book 9979, page 169, under Recorder's Serial No. 80-106935, in the Official Records of Contra Costa County on August 29, 1980. Developer agrees that City will not issue any building permits for lot numbers 48 and 49 of this subdivision, until such time that developer has filed a quiet title action to remove the easement granted to the property owner of APN 019-092-024 over the eastern portion of lots 48 and 49. Pursuant to Government Code section 66485, et seq., Subdivider is entitled to the recover from the owner of the benefited property, costs of off site improvements that benefit other properties. In this case the benefited property from the road realignment at Apricot Way is only one parcel, property generally known as APN 019-092-024, currently listed as being owned by Salvo & Maggiora.
9. Right-of-Way Acquisition
i. The standard City Contract
for Real Property Acquisition (“contract”) executed by the
B. Developer agrees that until the formal written request to acquire and the deposit has been made in the manner provided in this paragraph:
i. The City may, but shall
be under no duty to, proceed with the proposed acquisition of property
required for the construction of offsite improvements; and
C. Developer agrees that failure of the Developer to make a timely written request to acquire and deposit provided in this paragraph:
i. Shall be grounds for refusing
to approve the final map because the Developer has not agreed to pay the
cost of acquiring offsite real property interests required in connection
with the tentative map;
D. The terms costs of acquisition and acquisition costs, as used herein shall include but not be limited to costs and payments incurred for attorneys fees; expert witness fees including appraisers, whether or not said expert witnesses are called to testify at time of trial court costs; litigations expenses as defined by Code of Civil Procedure §1235.41, relocation costs; costs and fees charged by acquisition and relocation agents; any awards or settlement in avoidance of trial of compensation and costs to the owners of the property sought to be acquired including but not limited to compensation for the property acquired, severance damages, if any, loss of goodwill, if any and delay damages, if any; interest on the award or settlement and interest for immediate possession of the property acquired; sanctions, if any, awarded to the owner or payable to the Court; litigation expenses (including but not limited to attorneys fees and exert witness fees); court costs awarded to the owner of the property sought to be acquired or paid to the owner in settlement of claims for attorneys fees and expert witness fees; expenses and costs, if any, awarded to the owner for abandonment or dismissal of any condemnation action, or in settlement of claims for costs and expenses for abandonment or dismissal; costs recoverable against a condemnor upon the filing of a memorandum of costs including but not limited to filing and process fees including costs of recordation and certification of documents, deposition fees including fees paid to deposed expert witnesses, ordinary witness fees, jury fees, mileage fees for jurors and fees for official reporting of testimony and proceedings after judgment; and all fees recoverable pursuant to Code Civ. Proc. §§1250.410 (defined as “litigation expenses”) as well as pursuant to Code Civ. Proc. §§1235 and 1268.710; all arbitration, mediation, and alternative dispute resolution fees including fees paid to arbitrators or retired judges; together with staff overhead charges for the administration of the acquisition in the amount of actual overhead charges, or, at the City’s sole option, 5 percent of the total costs of acquisition, an amount estimated to be standard overhead project costs.
E. Each time the balance of said cash advance has declined to $10,000 by reason of withdrawals by the City to pay for acquisition costs, Developer shall deposit within ten days after posting by certified mail a written demand from the City, an additional $40,000 or the original amount deposited minus $10,000 (whichever amount is the lesser amount) as an advance on further costs of acquisition.
F. Developer acknowledges that if the Developer makes a request to acquire pursuant to this paragraph, the City is required to make an offer to the owner(s) of property required for off-site improvements of the amount established as just compensation after consideration of a fair market value appraisal (Govt. Code §7267.2) before commencing negotiations with said owner(s).
G. Developer agrees to deposit with the City the amount of said offer and estimated relocation assistance costs, if any, as may be required by the California Relocation Assistance Act within ten days after posting by certified mail by the City of a written demand to Developer stating the amount of the proposed offer and of the estimated relocation assistance costs, if any. No additional deposit shall be required in the event that the balance of the initial deposit provided for in this paragraph is in excess of the amount stated in Section A(ii)(b) after deducting the amount of said offer and estimated relocation assistance costs.
H. Developer acknowledges that the City cannot file a condemnation action until after the City Council adopts a Resolution of Necessity pursuant to Code Civ. Proc. §§1245.220-1245.235 after giving the affected owner the right to be heard in opposition to the adoption of said Resolution. Developer acknowledges that the city Council may, after said hearing, exercise its discretion and not adopt the requisite Resolution of Necessity; and City cannot make an irrevocable commitment to acquire said property by eminent domain unless and until said Resolution is adopted. Developer further acknowledges that the references to the acquisition of said property by eminent domain shall be considered representations by City staff to use their best efforts to acquire said property and not the commitment of the City to acquire said property by eminent domain until such time as the City Council has exercised its discretion after said hearing to adopt said Resolution. Developer further acknowledges that staff has no authority to commit the City Council to adopt a Resolution of Necessity.
I. Twenty days prior to obtaining an Order of Possession on said properties, City shall notify Developer of the amount of probable compensation to be deposited with the State Treasurer’s Condemnation fund required by Code of Civil Procedure §§1255.010 et seq. to obtain possession. Within ten days after posting by certified mail a written demand from the City setting out the amount of the proposed deposit with the State Treasurer, Developer shall deposit with the City the amount of probable compensation to be deposited less the amount previously deposited prior to said Govt. Code §7267.20 offer. No additional deposit shall be required in the event that the current balance of the initial deposit provided for in this paragraph is in excess of Section A(ii)(b) after deducting the amount that Developer would otherwise be required to deposit as the amount of probable compensation less the amount, if any, previously deposited prior to said Govt. Code §7267.2(a) offer.
J. In the event that the City proposes to make an offer of settlement higher than the amount offered pursuant to Govt. Code §7267.2, City may give the Developer notice of the amount of said offer of settlement and may give Developer a written demand from City setting out the amount of the offer and demanding that Developer deposit an additional sum determined to be sufficient to provide for payment to the owner of the amount of the offer in the event that the offer is accepted and still leave on deposit with City as a cash advance an amount sufficient to cover the costs and expenses defined herein which are obligations of Developer to City and not a part of the proposed settlement. Developer shall within ten days after posting by certified mail of said demand, deposit the amount that City has determined to be sufficient to provide for payment to the owner the amount of the offer in the event that the offer is accepted and still leave on deposit a cash advance in the amount sufficient to cover the costs and expenses which are obligations of Developer to City and not a part of the proposed settlement. In the event that the offer is not accepted, this additional deposit shall be held by the City as security for the payment of any judgment after trial, [but shall not relieve the Developer of the obligation to pay the full amount of the award including interests, costs, sanctions, litigation expenses and fees (“additional amounts”) awarded by the court or recoverable by the City against Developer as a cost defined herein] should the full amount awarded plus said additional amounts exceed the amount of all cash advances made as provided herein.
K. In the event that the owner of the property sought to be acquired makes an offer to settle after receiving the Govt. Code §7267.2(a) offer in an amount greater than said offer, and City, at its sole option intends to accept the offer, then City may give the Developer notice of the amount of said offer of settlement and may give Developer a written demand from City setting out the amount of the offer and demanding that Developer deposit an additional sum determined in an amount determined by the City to be sufficient to provide for payment to the owner of the amount of the offer and still leave on deposit with City as a cash advance an amount sufficient to cover the costs and expenses defined herein which are obligations of Developer to City and not a part of the proposed settlement. Developer shall within ten days after posting by certified mail of said demand deposit the amount that City has determined to be sufficient to provide for payment to the owner the amount of the offer and still leave on deposit a cash advance I the amount sufficient to cover the costs and expenses which are obligations of Developer to city and not a part of the proposed settlement.
L. City agrees to use its best efforts to settle any dispute over the compensation for the property to be acquired pursuant to this agreement for an amount as close to what it considers to be just compensation as is reasonably possible, but in no event less than what is determined to be the fair market value of the property together with other legally compensable and reasonably probable damages, if any. However, Developer agrees that the City, in its sole discretion, may settle any dispute over value in any amount between what the City considers to be just compensation and what the owner claims as just compensation, by way of a compromise recognizing the risks of trial.
M. Failure of the developer to make any of the deposits required by this paragraph shall constitute Developer’s waiver of any claim that the City has waived any condition for the construction of off-site improvements contained in the tentative or final map. No condition or term of this agreement is waived if the City does not demand an additional cash advance when authorized by this agreement.
N. In the event that the City elects not to take any steps required in a condemnation action for the acquisition of sites for said required offsite improvements until Developer has made the deposits required by this Agreement, then:
i. Developer shall be liable
for all damages, claims, or sanctions of whatsoever kind or nature resulting
from the City not proceeding with said condemnation action; and
Consistent with the City’s Constitutional duty and its obligation created by the California eminent domain law to pay just compensation and such other compensation as may be required by law, the City shall have sole control over the selection of attorneys, appraisers and other expert witnesses and consultant’s as required and shall have sole control over the conduct of any eminent domain litigation as well as the settlement of eminent domain litigation and the amount of any settlement figure agreed to by the parties thereto, subject only to approval by the city Council. Developer shall not be considered a party to said action, and the City will have full authority to settle any eminent domain litigation without Developer’s consent. City may settle any condemnation litigation without consultation with Developer or without making any demand on Developer for an additional cash advance as provided herein and Developer shall remain liable to reimburse City in the amount of the settlement as well for all costs and expenses provided for herein unrelated to the settlement in the event that the funds advanced are insufficient to provided for said settlement, costs and expenses.
O. Upon obtaining a Final
Order condemning the parcel or parcels that Developer requested the City
to acquire or after acquiring the parcel or parcels by Deed, the City
shall provide Developer with an account of all compensation, costs and
expenses due hereunder, and make a written demand on Developer for any
amounts greater than the remaining balance of the cash advances deposited
with City, and demanding that Developer deposit said additional sum. Developer
shall within ten days after posting by certified mail of said demand deposit
the amount that City has determined to be the remaining balance. Said
demand and payment shall be a final accounting of all amounts owing hereunder,
unless the owner files a motion for new trial, any post-judgment motions
or a notice of appeal, in which case any additional compensation, settlement
amounts, fees, expenses or costs as defined herein shall be the obligation
of Developer and City may require additional cash advances to secure payment.
11. 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.
12. Repairs and Replacement. SUBDIVIDER shall replace or have replaced, or repair or have repaired Improvements and monuments shown on the Map and/or Improvement Plans 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.
13. 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.
14. Breach of Agreement: Performance by City. If SUBDIVIDER shall refuse or fail to satisfactorily complete the work and 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 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, 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.
15. Estimates of Costs: Security. The estimated cost for the work to be done under this agreement is: On-Site $2,003,503.00, (Two Million, Three Thousand, Five Hundred Three Dollars) Off-Site $994,644.00 (Nine Hundred Ninety Four Thousand, Six Hundred Forty four Dollars).
Contemporaneously with the execution of this agreement, SUBDIVIDER shall file with CITY a surety bond or a letter of credit 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 all work, 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.
16. Permits: Compliance with Law. SUBDIVIDER shall, at SUBDIVIDER’S expense, obtain all necessary permits and licenses for the work and 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 therefore.
17. Inspection by CITY. SUBDIVIDER shall, at all times, maintain proper facilities and provide safe access for inspection by CITY to all parts of the work subject to CITY’S acceptance. SUBDIVIDER shall pay for all engineering, inspection, and survey services in accordance with Brentwood Municipal Code.
18. 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 here from is strictly that of an independent contractor.
19. 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.
20. 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 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 of 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.
21. 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.
(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 public 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.
23. 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.
24. Final Drawings. Upon completion of all City 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.
25. Notice of Completion. SUBDIVIDER shall file, or cause to be filed, a Notice of Completion of the Improvements herein specified.
26. 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 City 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.
27. Streets, Streetlights, Trees, Landscaping and Maintenance. All tree plantings, landscaping, erosion control and maintenance 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 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.
28. 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.
29. Off-site Improvements. SUBDIVIDER shall comply with all Subdivision Map 8408 Conditions of Approval that may apply to off-site improvements. Building permit restrictions may apply for compliance with these conditions.
30. 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.
31. 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.
32. 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
TO SUBDIVDER: Apricot Venture
33. Recording. This agreement shall be recorded with the Office of the Contra Costa County Recorder concurrently with the Map.
IN WITNESS WHEREOF, the parties
here to have caused this agreement to be executed the day and year first
Approved as to form:
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441