1 PUBLIC IMPROVEMENT AGREEMENT
NO FEE DOCUMENT
Government Code §6103 and §27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF COTATI
City Hall
201 West Sierra Ave.
Cotati, CA 94931
Attn: City Manager
The Above Space For Recorder’s
Use Only
PUBLIC IMPROVEMENT AGREEMENT
This Public Improvement Agreement (“Agreement”) is entered into this __ day of _____________, 2022,by and between the CITY OF COTATI, a California municipal corporation (“City”) and Sandell Holdings LLC, a California limited liability company (“Principal”). City and Principal may be individual or collectively referred to as a “Party” or the “Parties” to this Agreement.
RECITALS
A. Principal owns the real property located in the City of Cotati, California, which is more particularly described in Exhibit A attached to this Agreement and incorporated by reference (the “Principal Property”).
B. On September 7, 2021, the City Planning Commission conditionally approved Principal’s application for a Preliminary Design Review for the Sandell Warehouse (“Project”) along with the variances required to implement the Project together with a Use Permit for the construction of a new approximately 50,064 square foot warehouse to be used as [by] a moving and storage company with the outdoor storage of portable storage containers,
C. The City Planning Commission approvals and City ordinances require Principal to construct the following improvements on the City Property: a new cul-de-sac at the western end of Blodgett Street built to City standards (“Required Improvements”).
The portion of the Principal Property to be offered for dedication to the City upon completion of the Required Improvements is described in Exhibt B attached hereto.
D. On behalf of Principal, CaliChi Design Group prepared plans for the construction of the Required Improvements, as shown on its plans dated __Date TBD_______________, incorporated herein by this reference, and approved by City (“Improvement Plans”). The engineer’s cost estimate is included as Exhibit C attached to this agreement hereto.
2 PUBLIC IMPROVEMENT AGREEMENT
F. This Agreement memorializes the understanding between the Parties regarding the terms and conditions under which Principal will construct and City will accept the Required Improvements.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, and incorporating the Recitals above herein, the Parties agree as follows:
Construction of Improvements. Principal agrees to construct and install on the Principal Property, at Principal’s own cost and expense, the Required Improvements shown on the Improvement Plans submitted by Principal and approved by City on______Date TBD_______, and incorporated herein by reference. Prior to commencing any work, Principal shall, at its sole cost and expense, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Required Improvements and performance of Principal’s obligations under this Agreement. The Required Improvements shall be constructed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
Principal shall, in accordance with the Improvement Plans, complete or cause to be completed the Required Improvements to the reasonable satisfaction of City Engineer within two years of the Effective Date of this Agreement. The dates for commencement and completion of the work of construction may be extended as herein provided. The City Engineer shall extend said dates for delays in said work actually caused by riots, strikes, lockouts, fires, earthquakes, flood and conditions resulting therefrom. Extension of said dates for any other cause shall be made only by the City Council. The City Engineer, and required City Council approval, shall be the sole and final judge as to whether good cause has been shown to entitle Principal to an extension. Any extension granted pursuant to this paragraph shall not obligate City in any manner to grant other requests for extension.
Any request for extension of any commencement and completion date shall be in writing, shall fully state the facts and grounds relied upon for said extension, and shall be delivered to City in the manner hereinafter specified for services of notices. City shall respond to such request within ten (10 business days). Extensions shall be granted in writing and any purported oral extension or purported oral agreement to make an extension shall not be valid for any purpose whatsoever.
In the event it is deemed necessary by the City to extend the time of commencement or completion of the work to be done under this Agreement beyond the dates specified herein, such extension may be granted without notice by City to the Principal’s surety and shall in no way release any guarantee given by Principal pursuant to this Agreement, or relieve or release those providing Required Improvement security pursuant to this 3 PUBLIC IMPROVEMENT AGREEMENT
Agreement. The sureties in executing the bonds and/or other providers of security shall be deemed to stipulate and agree that no change, extension of time, alteration or addition to the term of the Agreement or to the work to be performed thereunder or the specifications accompanying the same including, but not limited to, the Improvement Plans, shall in any way affect its obligations on the bond or other instrument, and to waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the work or to the specifications.
The granting of any extension may be conditioned upon Principal providing City with increased Inspection Fees and new or amended surety bonds or other security in amounts increased to reflect increases in the cost of constructing the required Public Works Improvements that have occurred prior to the granting of the extension, and the cost of additional inspection services. In granting any extension of time, City may impose other conditions to protect its interests and ensure the timely completion of the Required Improvements.
1. Standard of Performance. Principal and its contractors, if any, shall perform all work required to construct the Required Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, Including, without limitation, standards generally recognized to protect the public during construction of the Required Improvements. Principal represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work.
Principal warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
a. Alterations to Improvements. All work shall be done and improvements made and completed as shown on the Improvement Plans, and any subsequent approved material alterations thereto. If during the course of construction and installation of the Required Improvements it is determined that the public interest requires alterations in the Required Improvements, Principal shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Required Improvements to be completed may be accomplished without giving prior notice thereof to Principal’s surety, if any, for this Agreement. b. Fees and Charges. Principal shall, at its sole cost and expense, pay all fees, charges, and taxes arising out of construction of the Required Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City or as required by other governmental agencies having jurisdiction over the Required Improvements. c. Notice and City Inspections and Standards. Principal shall notify the responsible department at least one working day in advance of:
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i. The date work is commenced;
ii. Work stoppage of more than one day;
iii. The accomplishment of work on a Saturday, Sunday, or legal holiday; iv. Completion of the Public Works Improvements.
2. Completion of Required Improvements. Upon completion of all Required Improvements in accordance with the Improvement Plans, Principal shall offer to dedicate the Required Improvements to City, and City agrees to accept that offer of dedication in accordance with its policies and procedures and the terms of this Agreement.
Notwithstanding the foregoing, City agrees that it shall accept the offer of dedication no later than ninety (90) days following the date upon which Principal provides the offer of dedication to City, assuming the Required Improvements are acceptable to City.
3. Title to Required Improvements. City shall not accept the Required Improvements unless they are constructed in conformity with the approved plans and specifications, approved modifications, if any, and City Improvement Standards and Specifications, to the reasonable satisfaction of the City Engineer, or his or her designee (hereafter the “City Engineer”), which satisfaction of the City Engineer shall not be unreasonably withheld, conditioned or delayed. Until such time as the Required Improvements are accepted by the City, Principal shall retain title and shall be responsible for, and bear the risk of loss to, any of the improvements constructed or installed. Title to and ownership of the Required Improvements shall vest absolutely in City upon completion and acceptance in writing of such Required Improvements by City. City shall not accept the Required Improvements unless title to the Required Improvements is entirely free from lien. Prior to acceptance, Principal shall supply the City with appropriate lien releases, at no cost to and in a form acceptable to City. a. Principal’s Notice of Completion. Upon the acceptance of the Required Improvements by City, Principal shall file with the Recorder’s Office of the County of Sonoma a notice of completion for the accepted Required Improvements, at which time the accepted Required Improvements shall become the sole and exclusive property of City without payment therefor.
b. City Acceptance of Required Improvements. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City’s acceptance or approval of any Required Improvements.
c. Principal’s Obligation to Provide As-Built or Record Drawings.
Notwithstanding the foregoing, City may not accept any Required Improvements unless and until Principal provides one (1) set of “as-built” or record drawings or plans to the City Engineer for all such Required Improvements. The drawings shall be certified and shall reflect the condition of the Required Improvements as constructed, with all changes incorporated therein.
4. Extension of Time to Complete Improvements.
a. The City Engineer may extend the date for completing the Required 5 PUBLIC IMPROVEMENT AGREEMENT
Improvements. Extensions shall be granted only upon a showing of good cause by the Principal.
b. Requests for extension of the completion date shall be in writing and delivered to the City Engineer in the manner hereinafter specified for service of notices.
An extension of time, if any, shall be granted only in writing, and an oral extension shall not be valid or binding on the City.
c. In the event the City Engineer extends the time of completion of the Required Improvements, such extension may be granted without notice by City to the Principal’s surety and shall in no way release any guarantee or security given by the Principal pursuant to this Agreement, or relieve or release those providing an improvement security pursuant to this Agreement. The surety or sureties, if any, in executing the securities shall be deemed to have expressly agreed to any such extension of time.
d. In granting any extension of time, City may require new or amended improvement security to reflect increases in the estimated costs of constructing the Required Improvements or impose other conditions to protect its interests and ensure the timely completion of the Required Improvements.
5. Intentionally deleted. .
6. Inspection. Principal shall allow City's duly authorized representative access to the Public Works Improvement at all times and shall furnish them with every reasonable facility for ascertaining that the methods, materials, and workmanship comply with the requirements and intent of the Public Works Improvement plans. City may reject defective work and require its repair, replacement, or removal by Principal all at no expense to City. All work shall meet the standards set forth in the City of Cotati Subdivision Ordinance and the standards of the City Engineer’s office and all other applicable federal, state and local laws and standards. Upon completion of the work, Principal may request a final inspection by the City Engineer or his designee. If the City Engineer or the designated representative determines that the work has been completed in accordance with this Agreement, then the City Engineer shall certify the completion of the Required Improvements to the City. No improvements shall 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 City standards. Principal shall bear all costs of plan check, inspection and certification.
6. Maintenance of Improvements. City shall not be responsible or liable for the maintenance or care of the Required Improvements until City formally approves and accepts them in accordance with the terms of this Agreement. Upon City’s acceptance of the Required Improvements (which pursuant to Section 3 hereof, shall be no later than ninety (90) days following the date upon which Principal makes the offer of dedication to City, assuming the Required Improvements are acceptable to City) City shall thereafter be fully responsible and liable for the maintenance and care of the Required Improvements, and Principal shall be fully released from all maintenance obligations with regard to the Required Improvements. City shall exercise no control over the Required Improvements until approved and accepted. Any use by any person of the Required 6 PUBLIC IMPROVEMENT AGREEMENT
Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Principal at all times prior to City’s acceptance of the Required Improvements. Principal shall maintain all the Required Improvements in a state of good repair until they are completed by Principal and approved and accepted by City. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements.
If Principal fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Principal and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Required Improvements or their condition prior to acceptance, except however is such damage or injury is caused by the actions or omissions of any of its employees, contractors, agents, representatives or invitees.
7. Warranty. If, within a period of one (1) year after final acceptance by City of the Required Improvements (“Warranty Period”), any improvement or part of any improvement furnished and/or installed or constructed, or caused to be installed or constructed by Principal, or any of the work done under this Agreement materially fails to fulfill any of the requirements of this Agreement or the specifications referred to herein, Principal shall without delay and without any cost to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the improvements. If Principal fails to act promptly or in accordance with this requirement, or if the exigencies of the situation require repairs or replacements to be made before Principal can be notified, then City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Principal shall pay to City the actual cost of such repairs within thirty (30) days of the date of billing for such work by City. As to any Required Improvements which have been repaired, replaced, or reconstructed during the Warranty Period, Principal and its surety hereby agree to extend the Warranty Period for an additional one (1) year period following City’s acceptance of the repaired, replaced, or reconstructed Required Improvements. Principal’s warranty obligation under this section shall survive the expiration or termination of this Agreement.
8. Security.
a. Required Security. Concurrently with the execution of this Agreement, Principal shall furnish City with the following security, subject to acceptance by the City Engineer and in a form satisfactory to City Attorney:
(1) Performance Bond. Either a cash deposit, a corporate surety bond issued by an admitted surety insurer, or an instrument of credit, whichever is required by the City Engineer, in an amount equivalent to one hundred percent (100%) of the total estimated cost of the Required Improvements, which total cost is in the amount of ($_293,000_____________) and sufficient to assure City that the Required Improvements will be satisfactorily completed (“Performance Bond”). 7 PUBLIC IMPROVEMENT AGREEMENT
(2) Labor and Materials Bond. Either a cash deposit, a corporate surety bond issued by an admitted surety insurer, or an instrument of credit, whichever is required by the City Engineer, in an amount equivalent to one hundred percent (100%) of the total estimated cost of the Required Improvements, and sufficient to secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for the work (“Labor and Materials Bond”). (3) Warranty Bond. As set forth in Section 8, Principal guarantees the Required Improvements to be free of defects in material and workmanship for the Warranty Period. Upon acceptance of the Required Improvements by the City, Principal shall provide security in the form of a bond or other security acceptable to the City Engineer to guarantee the Required Improvements throughout the Warranty Period (“Warranty Bond”). The amount of the Warranty Bond for the accepted Required Improvements shall be equal to ten percent (10%) of the total estimated cost of construction of the Required Improvements, i.e., ($__293,000__________), and shall be retained for the Warranty Period by City.
b. Additional Requirements.
(1) City shall be the sole indemnitee named on any instrument required by this Agreement.
(2) Any bonds submitted as security pursuant to this section shall be furnished by companies that are authorized and licensed by the Insurance Commissioner of the State of California as “admitted surety insurers,” to act as surety upon bonds and undertakings. The company shall maintain in the State of California at least one office for the conduct of its business. Bonds must be approved by City. The premiums for said bonds shall be paid by Principal.
(3) The bonds shall be furnished on the forms reasonably satisfactory to City.
(4) No change, alteration, or addition to the terms of this Agreement or the plans and specifications incorporated herein shall in any manner affect the obligation of the sureties.
(5) The securities shall be irrevocable, shall not be limited as to time (except as to the one-year Warranty Period) and shall provide that they may be released, in whole or part, only under the terms and conditions of this Agreement. c. Release of Security.
(1) Warranty Bond. Any unused portion of the Warranty Bond may be released one (1) year after acceptance of the Required Improvements by City.
The amount to be released shall first be reduced by the amount deemed necessary by City to correct any defects in the Required Improvements that exist at the end of the Warranty Period. Any unreleased portion of the Warranty Bond shall remain in full force and effect unless and until City notifies Principal in writing that the necessary repairs have been made to the satisfaction of City.
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(2) Labor and Materials Bond. The Labor and Materials Bond may be released thirty-five (35) days after passage of the time within which claims of lien are required to be recorded pursuant to applicable law, but in no event shall such security be released prior to one hundred and twenty (120) days after acceptance of the Required Improvements by City. The amount to be released shall first be reduced by the total of all claims on which an action has been filed and notice thereof given in writing to City.
City may require the surety not to release the amount of security deemed necessary by City to assure payment of reasonable expenses and fees, including reasonable attorney’s fees.
(3) Performance Bond. The Performance Bond may be released upon acceptance of the Required Improvements by City.
9. Deposits.
A. Legal and Administrative Costs: Principal shall, upon execution of this Agreement, deposit with the City cash in the sum of $5,000, to pay for any necessary legal and administrative costs incurred by the City to enforce the provisions of this Agreement.
Should the Principal not comply with the provisions of this Agreement, the City shall commence legal and administrative efforts to seek compliance, with the costs of said efforts to be expended from this deposit. Notwithstanding the forgoing provisions of this section, in any action or proceeding governed by Part 16. Protection of Public, below, the City shall not be limited to recovering the amount of said deposit as and for the the City’s attorneys’ fees, and the provisions of Part 14. Attorney’s Fees and Cost Recovery herein shall remain in full force and effect, notwithstanding the provisions of this section. Upon final acceptance of the Required Improvements, the cash deposit, or remaining portion thereof, will be returned to Principal.
B. Inspection of Improvements: Principal shall, upon execution of this Agreement, make an initial deposit with the City of cash in the sum of $____TBD_________, to pay for City inspection of the Required Improvements. In addition to the Required Improvements, the Engineering Department shall inspect the following on the private lots:
utility connection from the public ROW to connection to the building, lot landscaping, LID features, retaining walls and fences, and lot drainage features. Principal has signed the Engineering Department’s Uniform Application Fee Addendum and Indemnification Agreement, attached hereto as Exhibit C and incorporated herein by reference. In addition to the initial deposit, the Principal may be required to make further deposits for anticipated work.
10. Principal’s Insurance.
a. Insurance Requirements. Principal shall maintain and shall require all of its subcontractors, consultants, and other agents to maintain the insurance listed below. Any requirement for insurance to be maintained after completion of the work shall survive this agreement. Neither Principal nor any of its contractors or subcontractors shall commence work under this Agreement until Principal shall have obtained all insurance required under this Agreement.
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b. Workers’ Compensation & Employers Liability Insurance. Workers Compensation insurance with statutory limits as required by the Labor Code of the State of California. Employers Liability with limits of $1,000,000 per Accident; $1,000,000 per employee; $1,000,000 per policy. The policy shall include a written waiver of the insurer's right to subrogate against Principal. Required Evidence Of Coverage: Subrogation waiver endorsement; and properly completed Certificate of Insurance. c. General Liability Insurance. Commercial General Liability Insurance no less broad than Insurance Services Office (ISO) form CG 00 01. Coverage shall be on a standard occurrence form. Claims-Made forms are not acceptable without prior written consent. Modified, limited or restricted Occurrence forms are not acceptable without prior written consent. Minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The General Aggregate shall apply separately to each project. The required limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance.
11. Indemnity. Principal shall indemnify, defend with counsel reasonably acceptable to City, and hold harmless to the fullest extent permitted by applicable law, City and its officers from and against any and all liability, loss, damage, claims, expenses and costs (including without limitation reasonable attorneys’ fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with any of the obligations contained in this Agreement, except such Liability caused by the negligence or willful misconduct of the City, or any of its officers, agents, employees, contractors, or representatives. Principal’s duty to indemnify herein shall apply regardless of whether or not City has prepared, supplied or approved of plans, specifications, or either, for the Project, and regardless of whether or not any insurance policies shall have been determined to be applicable to any of such Liability.
12. Intentionally deleted.
13. Notices. All notices required under this Agreement shall be in writing, and delivered in person or sent by registered or certified mail, postage prepaid.
Notices required to be given to City shall be addressed as follows:
Craig A. Scott
City Engineer
CITY OF COTATI
City Hall
201 West Sierra Ave.
Cotati, Ca 94931
Notices required to be given to Principal shall be addressed as follows:
Attention: Albert W. Sandell - Trustee
Company Name: Sandell Holdings LLC
Address: 3348 Paradise Drive, Tiburon, CA 94920
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14. Attorney’s Fees and Cost Recovery. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all attorney’s fees and costs. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of attorney’s fees and costs.
15. Assignment. Principal shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge Principal from any duty or responsibility under this Agreement.
16. Protection of Public.The Principal is obligated to protect the public safety during all phases of the work, and shall erect and maintain all barricades, signs and warning devices necessary to ensure public protection. In the event that City discovers a condition on the site which in its determination constitutes an immediate danger to public safety, and Principal cannot respond at once, City may erect any barriers, signs and warning devices it deems necessary. In such event, Principal shall pay for the labor of City’s crews at the current City’s recovery rate per hour per worker; plus the cost of any materials used and a reasonable fee for use of any barricades found necessary. In no event shall Principal pay less than one-hour minimum per worker assigned during regular work hours and no less than three hour minimum per worker assigned outside of regular work hours if City takes action pursuant to this paragraph.
17. Compliance with Laws. Principal, its agents, employees, contractors, and subcontractors shall comply with all federal, state and local laws in the performance of the work required by this Agreement including, but not limited to, obtaining all applicable permits and licenses.
18. Waiver. City’s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City’s waiver of any breach of this Agreement, shall not relieve Principal of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City’s actions are intentional or unintentional. Principal agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Required Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Required Improvements or this Agreement.
19. No Vesting of Rights. Entering into this Agreement shall not be construed to vest Principal’s rights with respect to any change in any zoning or building law or ordinance.
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20. Approvals by City; Amendment. Any approval or consent that is to be given by the City under this Agreement shall be in writing, and any approval or consent that is not in writing shall not be binding on the City. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
21. Intentionally deleted.
22. Successors and Assigns -- Covenant Running With the Land. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the respective Parties. The Agreement shall be recorded in the Office of the Recorder of Sonoma County and shall constitute a covenant running with the land and an equitable servitude upon the subject property.
23. Actions. Any action by any Party to this Agreement, or any action concerning a security furnished pursuant thereto, shall be brought in the appropriate court of competent jurisdiction within the County of Sonoma, State of California, notwithstanding any other provision of law which may provide that such action may be brought in some other location. The law governing this Agreement is the law of the State of California.
24. Integration. This Agreement is an integrated agreement. It supersedes all prior negotiations, representations, or agreements, either written or oral.
25. Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Principal include all personnel, employees, agents, and subcontractors of Principal, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
26. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force without being impaired.
27. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, together, shall constitute one and the same instrument. In order to expedite the transaction contemplated herein, telecopied or electronic PDF signatures may be used in place of original signatures on this Agreement. The parties intend to be bound by the signatures on the telecopied or electronic PDF document, are aware that the other party will rely on the telecopied or electronic PDF signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature. 12 PUBLIC IMPROVEMENT AGREEMENT
28. Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the City and executed by the appropriate authorities of City and Principal.
29. Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, nor any other related entitlement, permit, nor approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Principal. Principal’s contractors and subcontractors are exclusively and solely under the control and dominion of Principal. [Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as follows:
CITY OF COTATI
Damien O’Bid
City Manager
Date: _________________
ATTEST:
___________________________
Lauren Berges
City Clerk
Date: ______________________
APPROVED AS TO FORM
___________________________
John Bakker
City Attorney
Date: _______________________
PRINCIPAL
SANDELL HOLDINGS LLC,
a California limited liability company
By: The Albert and Ginny Sandell Trust, dated
December 14, 2016
Albert W. Sandell
Co-Trustee
Date:
1 PUBLIC IMPROVEMENT AGREEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss
COUNTY OF ________________________________ )
On _____________________________ before me, ____________________________________ Notary Public, personally appeared _______________________________________________________ personally known to me
or
proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal
____________________________________
SIGNATURE OF NOTARY PUBLIC
(S E A L)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss
COUNTY OF ________________________________ )
On _____________________________ before me, ____________________________________ Notary Public, personally appeared _______________________________________________________ personally known to me
or
proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal
____________________________________
SIGNATURE OF NOTARY PUBLIC
(S E A L)
EXHIBIT A
LEGAL DESCRIPTION
PARCEL ONE:
LOT 172 AS NUMBERED AND DESIGNATED UPON THE MAP OF SUBDIVISION NO. 7, RANCHO COTATI, FILED JUNE 7, 1893, IN BOOK 10 OF MAPS, PAGE 9, SONOMA COUNTY RECORDS.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE SONOMA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY DEED DATED SEPTEMBER 29, 1961 AND RECORDED MAY 25, 1962, IN BOOK 1892 OF OFFICIAL RECORDS, PAGE 66, UNDER RECORDER'S SERIAL NO. G-93896, SONOMA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE SONOMA COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT BY DEED DATED SEPTEMBER 29, 1961 AND RECORDED MAY 25, 1962, IN BOOK 1892 OF OFFICIAL RECORDS, PAGE 72, UNDER RECORDER'S SERIAL NO. G-93898, SONOMA COUNTY RECORDS.
PARCEL TWO:
ALL THAT PORTION OF PARCEL 4 REFERRED TO IN THE GRANT DEED FROM SONOMA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT TO CLYDE A.
BLODGETT AND DORIS BLODGETT, HIS WIFE, DATED FEBRUARY 9, 1962 AND RECORDED MAY 25, 1962, IN BOOK 1892, PAGE 85 OF OFFICIAL RECORDS, UNDER RECORDER'S SERIAL NO. G-93901, SONOMA COUNTY RECORDS, THAT LIES BETWEEN THE NORTHEASTERLY
EXTENSION OF THE EASTERLY LINE AND THE NORTHEASTERLY EXTENSION OF THE WESTERLY LINE OF LOT 172 AS NUMBERED AND DESIGNATED UPON THE MAP OF SUBDIVISION NO. 7, RANCHO COTATI, FILED JUNE 7, 1893, IN BOOK 10 OF MAPS, PAGE 9, SONOMA COUNTY RECORDS.
This description was prepared by me or under my direct supervision.
Date: March 14, 2022
Brian L. Sousa, LS 7917
EXHIBIT B
LEGAL DESCRIPTION
BLODGETT STREET DEDICATION
All that real property situated in the City of Cotati, County of Sonoma, State of California, described as follows:
Being a portion of Lot 172 as numbered and designated upon the Map of Subdivision No. 7 Rancho Cotati, filed June 7, 1893, in Book 10 of Maps, Page 9, in the Office of the Sonoma County Recorder, more particularly described as follows:
1. Beginning at the southwest corner of Lot 4 as said lot is shown on the subdivision map entitled “Kandy Business Park”, filed June 19, 2001 in Book 622 of Maps at Pages 14 through 16, in the Office of the Sonoma County Recorder, said corner being coincident with the most northerly corner of Blodgett Street as shown on said map of Kandy Business Park;
2. Thence along the westerly line of said Kandy Business Park South 37°01’10” West, 60.00 feet to the most westerly corner of said Blodgett Street, also being the northwesterly corner of Lot 5 as shown on said map of Kandy Business Park;
3. Thence continuing along the said westerly line of Kandy Business Park South 37°01'10" West, 1.23 feet to the beginning of a non-tangent curve to the left, the radius point of which bears South 22°43'38" West, 39.00 feet from said point;
4. Thence westerly along said curve for an arc length of 21.02 feet through a central angle of 30°52'29" to a reverse curve to the right having a radius of 59.00 feet;
5. Thence along said reverse curve for an arc length of 278.53 feet through a central angle of 270°29'21" to a reverse curve to the left having a radius of 39.00 feet;
6. Thence along said reverse curve for an arc length of 20.93 feet through a central angle of 30°44'47" to a point on said westerly line of Kandy Business Park;
7. Thence along said westerly line South 37°01'10" West, 1.23 feet to said Point of Beginning.
Containing an area of 11,226 square feet, more or less.
The bearings of this description are based upon said subdivision map of the Kandy Business Park.
A plat depicting the described area is attached hereto and hereby made a part of this description.
This description was prepared by me or under my direct supervision.
Date: March 14, 2022
Brian L. Sousa, LS 7917
30 15 0 30 Sousa Land Surveys SLS Scale: 1" : 30' Being a Portion of Lot 172 Map Book (10, Page 9) City of Cotati, County of Sonoma State of California Basis of Bearings This plat has been prepared to accompany the legal description for the easement shown and is hereby made a part of that description. This map was prepared by me or under my direct supervision. Brian L. Sousa, LS7917 Date: NS W E EXHIBIT B PLAT OF BLODGETT STREET DEDICATION
CALICHI DESIGN GROUP
3240 Peralta Street, #3, Oakland, CA 94608
(510) 250-7877
Prepared For: City of Cotati Grading Permit Application Prepared By: AaM
Date: December 8, 2021
CDG Project #: 2021-338-001
Item Description Quantity Unit Unit Price Total Price
1 Demo Asphalt Pavement 982 SF $ 1.00 $ 982
2 Demo existing fence/gate entrance 116 LF $ 5.00 $ 580 3 Protect existing storm manhole 1 EA $ 250.00 $ 250
4 Protect existing water meter or valve 2 EA $ 250.00 $ 500 5 Clear and grub 10,956 SF $ 0.10 $ 1,096
$ 3,410
Item Description Quantity Unit Unit Price Total Price
6 New curb ramp with Detectable Warning 4 EA $ 2,500.00 $ 10,000 7 6" Curb and Gutter 240 LF $ 25.00 $ 6,000
8 6" Vertical Curb 29 LF $ 12.00 $ 348
9 Curb Inlet 1 EA $ 13.00 $ 13
10 Valley Gutter 56 LF $ 20.00 $ 1,120
11 New Landscaping including irrigation system 924 SF $ 3.00 $ 2,772 8 New Concrete Sidewalk 1,105 SF $ 10.00 $ 11,050
9 New Heavy Duty Concrete Pavement 1,024 SF $ 12.00 $ 12,288 10 Heavy Duty Pavement 8,264 SF $ 9.00 $ 74,376
11 New Pavement Striping 178 LF $ 6.00 $ 1,068
$ 119,035
12 6" Sanitary Sewer DIP 52 LF $ 185.00 $ 9,620
13 8" Sanitary Sewer RCP 237 LF $ 140.00 $ 33,180
14 8" Sanitary Sewer DIP 138 LF $ 200.00 $ 27,600
15 New Sanitary Sewer cleanout 3 EA $ 750.00 $ 2,250
16 New 10" C900 PVC water main 498 LF $ 140.00 $ 69,720 17 New Water Valve 2 EA $ 750.00 $ 1,500
18 New RCP 15" storm drain line 112 LF $ 180.00 $ 20,160 19 Tie into existing Sewer Main 1 EA $ 1,500.00 $ 1,500 20 Tie Into Existing Storm Drain Manhole 1 EA $ 1,500.00 $ 1,500 $ 167,030
Sub Total $289,475
21 Erosion Control and Maintenance 2.0% $ 3,341
$3,350
$292,825
Notes:
1. This estimate is based on the Distribution Warehouse Grading Permit Plans Assumptions:
1. This total does not reflect engineering or technical services.
2. This total does not reflect any jurisdictional plan check, inspection, or permitting fees.
Contingencies Sub Total
Engineer's Opinion of Probable Construction Cost
Project: Industrial Warehouse
Engineer's Estimate of Probable Construction Costs for On-Site Improvements
DEMOLITION
Demolition Sub Total
GRADING and PAVING
Grading & Paving Sub Total
UTILITIES
Utilities Sub Total
CONTINGENCIES
Total Construction Cost
Disclaimer: The Engineer has no control over the cost of labor, materials, equipment, or over the Contractor's methods of determining prices or over competitive bidding or market conditions. Opinions of probable costs provided herein are based on the information known to Engineer at this time and represent only the Engineer's judgment as a design professional familiar with the construction industry. The Engineer cannot and does not guarantee that proposals, bids, or actual construction costs will not vary from its opinions of probable costs. 3/16/2022 Page 1 Helman Ln - Encroachment Permit
CITY OF COTATI
ENGINEERING DEPARTMENT
UNIFORM APPLICATION FEE ADDENDUM
AND INDEMNIFICATION AGREEMENT
Fee Addendum
The City Council adopted Ordinance 692 establishing a Fee and Service Charge Cost Comparison System. As provided for in this ordinance, the costs for services are reviewed annually and the fees and charges are adjusted accordingly by Council Resolution. The Ordinance and Resolution authorize a cost recovery system for staff time and the costs of any City Consultants performing work on your project, as well as all other costs associated with processing development applications received by the Engineering Department.
To comply with Council's direction, the Engineering Department collects a deposit to cover these estimated costs. The amount of the deposit varies based on the type of applications received.
Applicant agrees to be responsible for the payment of all costs (including staff costs at fully burdened hourly rates and City consultant costs) and fees, direct and indirect, associated with the processing of this application even if the application is withdrawn and/or not approved.
In addition to the initial deposit made at the time of the application submittal, the applicant may be required to make further deposits for anticipated work. Invoices are due and payable within thirty (30) days. Your deposit account will be required to maintain a minimum balance at all times equal to 25% of you original deposit amount. Should the amount on deposit fall below that 25% minimum, you will be asked to remit the amount due for services rendered plus the additional amount needed to maintain the 25% balance. Should your account become delinquent or fall below a zero balance, work will stop on your application processing. No work shall proceed until deposits or deposit replenishments are received.
Applicant understands and agrees that nonpayment of fees set forth in City Ordinance 692 and accompanying Resolution may, at the sole and exclusive discretion of the Engineering Department, result in temporary or permanent cessation of processing of the application or inspection of the work and, after notice, may result in the denial of the application and/or order to cease work. Prior to completion of processing any phase of the project, any and all outstanding amounts due pursuant to this agreement shall be paid. Any account with a balance less than zero at the end of a billing cycle will be assessed a 3% interest charge for the first 30 days. Interest rates will increase by 1% for every subsequent 30 day period of delinquency, up to a maximum rate of 5%.
Any portion of this deposit that is not used will be refunded to the applicant upon written request to the Administrative Services Department and confirmation from the Engineering Department that all outstanding charges have been processed.
Indemnification Agreement
The Applicant agrees to defend, indemnify, and hold harmless the City of Cotati, its agents, officers, council members, employees, boards, commissions and committees from any claim, action or proceeding brought against any of the foregoing individuals or entities, the purpose of which is to attack, set aside, void or annul any approval of the applications or related decision, or the adoption of any environmental documents or negative declaration which relates to the approval. This indemnification shall include, but is not limited to, all damages, costs, expenses, attorney fees or expert witness fees that may be awarded to the prevailing party arising out of, or in connection with, the approval of the application or related decision, whether or not there is concurrent, passive or active negligence on the part of the City, its agents, officers, council members, employees, boards, commissions, and committees. If for any reason, any portion of this indemnification agreement is held to be void or unenforceable by a court of competent jurisdiction, the remainder of this agreement shall remain in full force and effect and shall be interpreted to allow the broadest indemnity allowed by law.
In the event that Applicant is required to defend the indemnities in connection with any such claim, action or proceeding, the City shall retain the right to (i) approve the counsel to so defend the indemnities, (ii) approve significant decisions concerning the matter in which the defense is conducted, and (iii) approve any and all settlements, which approvals shall not be unreasonably withheld by City.
The City of Cotati shall have the right to appear and defend its interests in any action through the City Attorney or outside counsel.
The applicant shall not be required to reimburse the City for City Attorney’s or outside counsel fees incurred by the City if it chooses to appear and defend itself in litigation.
I have read this information and agree with all of the above. __________________________________ _____________________ Print Name Date
__________________________________ _____________________ Signature Project Number
Albert W. Sandell
Trustee - Sandell Holdings LLC
January 19, 2022
380 Blodgett Street
Cotati, CA