Subdivision Improvement Agreement For Phase 1B/I of the Waterstone (Bordoni Ranch) Subdivision

Subdivision Improvement Agreement For Phase 1B/I of the Waterstone (Bordoni Ranch) Subdivision

THIS SUBDIVISION IMPROVEMENT AGREEMENT FOR PHASE 1B/I OF THE BORDONI RANCH SUBDIVISION (“Phase 1B/I SIA”), made and concluded in triplicate, is entered into this 24th day of July, 2012, at Vallejo, California (“Effective Date”), by and between the City of Vallejo, a municipal corporation, (“City”), and Braddock and Logan Group II, L.P., a California limited partnership whose business address is 4155 Blackhawk Plaza Circle, Danville, California, 94506 (“Developer”).

NOW, THEREFORE, in consideration of the approval and recordation by City of the Waterstone Phase 1B/I Final Map and the mutual obligations set forth herein, the Parties agree as follows:

  1. RECITALS

A. The Vallejo City Council approved the Waterstone/Bordoni Ranch Vesting Tentative Map subdivision project (“Bordoni Ranch Project” or “Project”) on November 7th 2005.  On July 24, 2012, the City Council approved that certain Master Subdivision Improvement Agreement (“Master SIA”) for the remaining phases of the Bordoni Ranch Project’s subdivision in accordance with the Subdivision Map Act (Gov. Code §§ 66410 et seq.) and City ordinances and regulations consistent therewith (collectively, “Subdivision Laws”).

B. The Master SIA established all material terms and conditions to all subsequent (and implementing) subdivision improvement agreements (each, a “Phase SIA”), including without limitation, the relevant Vesting Tentative Map Conditions of Approval (“VTM COAs”) and Subdivision Improvement Agreement requirements (“SIA Sections”) attributable to each Project Final Map Phase (collectively, the “Master Conditions”).  Those Master Conditions likewise segregate the Master Conditions by Phase, and then within a Phase, by timing (pre-final map, during 2-year SIA, after SIA, etc.).  Additionally, through the Master SIA, City Council authorized the City Manager, or his/her designee, and Developer to execute such subsequent Phase SIAs.

C. This Phase 1B/I SIA is one such Phase SIA recognized and authorized by the City Council through its approval and adoption of the Master SIA.  Attachment 1 to this Phase 1B/I SIA attached hereto and incorporated herein by this reference as if set forth in full, contains that portion of the Master Conditions relevant to this Phase 1B/I SIA.

D. Developer has prepared, and the City Engineer has approved, improvement plans (”Improvement Plans”) for the completion of certain “Public Improvements” required by those VTM COAs related to this Final Map phase, and hence this Phase 1B/I SIA.  The Improvement Plans are on file in the Office of the City Engineer and incorporated herein by this reference as if set forth in full.

E. An estimate of the costs of construction of such Public Improvements according to the approved Improvement Plans is attached hereto as Attachment 2 and incorporated herein by this reference as if set forth in full, and the estimated cost for grading according to such approved Improvement Plans is attached hereto as Attachment 3 and incorporated herein by this reference as if set forth in full.

  1. TERMS AND CONDITIONS
    1. Generally.
      1. This Phase 1B/I SIA shall be subject to all of the following:
        1. It shall be substantially of the same form and content (terms and conditions) as that Phase SIA exemplar in Exhibit B to the Master SIA;
        2. Beyond the express terms and conditions contained in this Phase 1B/I SIA, the only other requirements to be included in this Phase 1B/I SIA shall be that portion of the Master Conditions listed on Exhibit A to the Master SIA as relating to this Phase 1B/I (the Phase that is the topic of this Phase SIA) that are designated “SIA 1B/I.”  Attachment 1 to this Phase 1B/I SIA attached hereto and incorporated herein by this reference as if set forth in full, contains that portion of the Master Conditions relevant to this Phase 1B/I SIA.
        3. The additional terms and conditions of this Phase 1B/I SIA (beyond those described in (1) and (2) above) shall be the remainder of the Terms and Conditions of the Master SIA; and
      2. No other terms and conditions shall be imposed as part of this Phase 1B/I SIA other than those referenced in Section 1.01(a) above.
    2. Completion of Public Improvements.
      1. Developer shall complete construction of the Public Improvements within two (2) years of the Effective Date of this Phase 1B/I SIA, or such additional time or delay approved or excused by City (“Term”).  Should the Public Improvements not be presented by Developer to City for acceptance by City within the Term, Developer shall make a written request to City for an extension of the Term to complete said Public Improvements.  In the event that good cause exists as reasonably determined by City, the Term may be extended.  The approval of the extension of the Term shall be executed by the City Manager.  Any such extension of the Term may be granted without notice to Developer’s Surety and shall not affect the validity of this Phase 1B/I SIA or release the Surety or Sureties on any security given for this Phase 1B/I SIA.  Delay caused by strike, boycotts, or similar actions by employees or labor organizations, which prevent the commencement and/or conducting of work, and which were not caused by or contributed to by Developer, shall constitute good cause for an extension of the time for completion.  As a condition of such extension, the City Manager may require Developer to furnish new security guaranteeing performance of this Phase 1B/I SIA as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the City Engineer.
      2. Developer shall, at Developer’s own expense, obtain all necessary permits and licenses for the construction and installation of the Public Improvements, give all necessary notices and pay all City plan check and inspection fees and taxes required by law.
      3. Upon completion of the Public Improvements, Developer may request a final inspection by the City Engineer, or his or her designee.  If the City Engineer determines that the work has been completed in accordance with this Phase 1B/I SIA, then the City Engineer shall certify the completion of the Public Improvements to the City Council.  The Public Improvements shall not be finally accepted unless all aspects of the work have been inspected and determined to have been completed in accordance with the Improvement Plans and Specifications.  Developer shall certify that said work and the Public Improvements are free of liens and encumbrances.
      4. Upon acceptance of the Public Improvements on behalf of City, ownership of the Public Improvements shall vest in City.
      5. Developer shall notify City’s Public Works Department forty eight (48) hours prior to commencement of construction of the Public Improvements.
      6. In addition to the rights, duties, and controls which may be exercised by the City over this project as set forth above and in the event Developer should fail to complete all or any portion of the work, Public Improvements, or construction herein mentioned within a period of two (2) years from and after the date of this Phase 1B/I SIA, City shall have the right to perform the whole or portion of said work, not completed, at the sole cost and expense of Developer; unless said work is delayed due to causes beyond the control of the Developer, in which case Developer will be granted additional time to complete the work.
    3. Surety.

Developer shall furnish surety to City for the Public Improvements and associated documentation as described in this Phase 1B/I SIA concurrent with the execution of this Phase 1B/I SIA as follows:

      1. Faithful Performance Bond for the construction of Highland/Waterstone Park in the amount of Eight Hundred Sixty Seven Thousand Four Hundred Twenty Nine Dollars ($867,429.00) per Exhibit A; and
      2. Payment (Labor and Materials) Bond for the construction of Highland/Waterstone Park in the amount of Four Hundred Thirty Three Thousand Seven Hundred Fifteen Dollars ($433,715.00), which constitutes fifty percent (50%) of Exhibit A; and
      3. Upon final acceptance of the Public Improvements by City, Warranty Bond for a period of one (1) year in the amount of Eighty Six Thousand Seven Hundred Forty Three Dollars ($86,743.00), which constitutes ten percent (10%) of Exhibit A.
      4. The bonds described in this section shall be provided in a form reasonably acceptable to the City and in conformance with section 66499 of the California Government Code.
    1. Indemnification.
      1. Developer shall defend and hold harmless City, its officers, officials, directors, employees, agents, volunteers and affiliates and each of them and Vallejo Sanitation and Flood Control District (“VSFCD”), its officers, officials, directors, employees, agents, volunteers and affiliates and each of them from any and all claims, demands, causes of action, damages, costs, expenses, actual attorney’s fees, consultant’s fees, expert fees, losses or liability, in law or in equity, of every kind and nature whatsoever arising out of or in connection with Developer’s operations, or any subcontractor’s operations, to be performed under this Phase 1B/I SIA for Developer’s or subcontractor’s tort negligence including active or passive, or strict negligence, including but not limited to personal injury including, but not limited to bodily injury, emotional injury, sickness or disease, or death to persons and/or damage to property of anyone, including loss of use thereof, caused or alleged to be caused by any act or omission of Developer, or any subcontractor, or anyone directly or indirectly employed by any of them or anyone for the full period of time allowed by the law, regardless to any limitation by insurance, with the exception of the sole negligence or willful misconduct of the City or VSFCD.  Approval of insurance coverage does not in any way relieve Developer of any liability.  The provisions of this section shall survive the expiration or termination of this Phase 1B/I SIA.
      2. Acceptance by City of the Public Improvements shall not constitute an assumption by City of any responsibility for any damage or taking covered by this section.  City shall not be responsible for the design or construction of the Subdivision or the action or inaction taken by City in approving the plans or maps, unless the particular improvement design was specifically required by City over written objections by Developer submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design.  Except as may be provided above, City shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing or inspecting any work or construction.  Nothing contained in this section is intended to or shall be deemed to limit or waive any protections or immunities afforded by law to City, its officials, agents and employees, by virtue of City’s approval of the plan or design of the Public Improvements, including without limitation the protections and immunities afforded by Government Code section 830-6.  After acceptance of the Public Improvements, Developer shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect; however, Developer shall not be responsible for routine maintenance.  Provisions of this section shall remain in full force and effect for ten (10) years following the acceptance by City of the Public Improvements.  Developer shall be responsible for all liability for design and construction of the Public Improvements installed or work done pursuant to this Phase 1B/I SIA and City shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing or inspecting any work or construction.  The improvement security shall not be required to cover the provisions of this section.
    2. Insurance.

 

Developer shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Developer.  Such insurance shall not be construed to relieve the Developer of any liability in excess of such coverage.

      1. Minimum Scope of Insurance.  Coverage shall be at least as broad as:
        1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
        2. Insurance Services Office form number CA 0001 (Ed. 12/92 (covering Automobile Liability, code 1 (any auto).
        3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance, with waiver of subrogation endorsement.

 

      1. Minimum Limits of Insurance.  Developer shall maintain limits no less than:
        1. General Liability:  $5,000,000.00 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:  $1,000,000.00 per accident for bodily injury and property damage.
        3. Worker’s Compensation Insurance as required by the State of California and Employer’s Liability:  $1,000,000.00 per accident for bodily injury or disease.
      2. Deductible and Self-Insured Retention.  The City agrees that Developer may have a self-insured retention and the Developer agrees that if the amount of the self-insured retention is in excess of $250,000.00, then  Developer shall provide to City a bond or provide other security acceptable to the City for any amount over the $250,000.00 for guaranteeing payment of losses and related investigations, claim administration and defense expenses.
      3. Other Insurance Provisions.  The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
        1. The City and VSFCD, their officers, officials, employees, agents and volunteers are to be covered as additional insured as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Developer; Developer’s work, including completed operations and products and Developer’s ongoing operations; 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 protection afforded to the City and VSFCD, their officers, officials, employees, agents or volunteers for the full period allowed by law. The insurance is to be issued by companies licensed to do business in the State of California.
        2. For any claims that may arise from or in connection with the performance of the work hereunder by the Developer, the Developer’s insurance coverage shall be primary insurance as respects the City and VSFCD, their officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City and VSFCD, their officers, officials, employees, agents or volunteers shall be excess of the Developer’s insurance and shall not contribute with it.
        3. Any  failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
        4. 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.
        5. Developer shall provide the City with the cancellation clause and/or any amendatory endorsements that modify or change the policy cancellation clause of the insurance policies in force. It is the Developer’s responsibility to notify the City of any notice of cancellation, non-renewal or non-payment of premium in accordance with Developer’s policy provisions and shall provide such notice within seventy two (72) hours of such cancellation, non-renewal or non-payment.
      4. Acceptability of Insurers.  Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII.
      5. Verification of Coverage.  Developer shall furnish the City and VSFCD with original endorsements effecting coverage required by this clause.  The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.  The endorsements are to be on forms received and approved by the City and VSFCD before work commences.
      6. Contractors.  Developer shall include all its subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each contractor.  All coverage for contractors shall be subject to all of the requirements stated herein.
      7. Failure to Provide Insurance.  If Developer, for any reason, fails to maintain insurance coverage which is required under this Agreement, the failure shall be deemed a material breach of contract.  City, at its sole option, may terminate this Agreement and obtain damages from Developer resulting from the breach.

 

    1. Miscellaneous.

 

      1. Successors.  All covenants, promises and agreements contained in this Phase 1B/I SIA shall pertain to and do hereby expressly run with the land. This Phase 1B/I SIA shall be binding upon and inure to the benefit of the Parties, their successors and assigns.
      2. Notices. Any notice demand, request, report, or other communication required or permitted to be given or made to a party to this Phase 1B/I SIA shall be in writing and shall be deemed to be given on the date of service if served personally (including commercial courier services) and upon the second business day after mailing, if mailed by first-class United States mail, postage prepaid, and properly addressed as set forth below or at such other address as such party may give notice in accordance with the provisions of this section:

 

City of Vallejo

Public Works Department

David Kleinschmidt, Public Works Director

555 Santa Clara Street

Vallejo, CA 94590

 

Braddock & Logan, Group II, L.P.

Joseph E. Raphel
4155 Blackhawk Plaza Circle, Suite 20

Danville, CA 94526

Telephone: (925) 736-4000

Facsimile: (925) 648-5700

      1. Attachments.  All attachments referred to herein are attached hereto and are by this reference incorporated herein as if set forth in full.

(SIGNATURES ARE ON THE FOLLOWING PAGE)

 

IN WITNESS WHEREOF, the parties have executed this Phase 1B/I SIA in triplicate as of the date first hereinabove written.

 

Developer:Braddock & Logan, Group II, L.P.A California limited partnershipBy: Braddock & Logan Services, Inc.,

a California corporation

Its:  Manager

 

By: ______________________

Joseph E. Raphel

President

 

 

 

 

 

(City Seal)

City:City of Vallejo,A municipal corporationBy: ________________________

Daniel E. Keen

City Manager

 

ATTEST: ___________________

Dawn G. Abrahamson

City Clerk

 

APPROVED AS TO FORM:

 

____________________________

Claudia Quintana

City Attorney

 

APPROVED AS TO CONTENT:

 

____________________________

David A. Kleinschmidt

Public Works Director

 

____________________________

Ursula Luna-Reynosa

Economic Development Director

 

 

APPROVED AS TO INSURANCE:

 

____________________________

Darrell W. Handy

Risk Manager

 

SIGNATURE OF THE DEVELOPER AND CITY MANAGER MUST BE PROPERLY ACKNOWLEDGED

PLEASE ATTACH APPROPRIATE NOTARY ACKNOWLEDGMENT

ON AN 8-1/2″ X 11″ SHEET

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