SF #4830-1910-6882 v8 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 _____________, 2019 by and between the CITY OF COTATI, a California municipal corporation (“City”) and ____________________ a California limited partnership (“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. City owns the real property located in the City of Cotati, California, which is more particularly described in Exhibit “B” and shown on Exhibit “C” attached to this Agreement and incorporated by reference (the “City Property”).
C. On May 13, 2019, the City Planning Commission conditionally approved Principal’s application for a Preliminary Design Review for the Cotati Hotel and Market Hall consisting of a hotel with 153 guest rooms, a 7,250 square foot commercial building and a 10,300 square foot outdoor pedestrian plaza (“Project”) and variances required to implement the Project together with a use permit for the hotel, alcohol sales with entertainment (night club), and outdoor dining on private property, D. The City Planning Commission approvals and City ordinances require Principal to construct the following improvements on the City Property: St Joseph Way improvements including grading, paving, sidewalks, curb and gutters, striping pavement markers, median at easterly end of St Josephs, driveway conform at the St Josephs church property entrance, storm drain, water and sewer connections. Improvements shall also include landscaping and LID features in the public ROW, street lights, and the Public Parking Use Area (park-and-ride) including pavement markings and signs.E.
On behalf of Principal, BKF Engineers has prepared plans for the construction of the Required Improvements, as shown on the plans for Cotati Hotel and Market Place, dated, consisting of x pages, and incorporated herein by reference.
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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.
OPERATIVE PROVISIONS
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, the Parties agree as follows:
Construction of Improvements. Principal agrees to construct and install on the City Property, at Principal’s own cost and expense, the Required Improvements shown on the improvement plans submitted by Principal and approved by City on_____________, 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 Public Works Improvement plans, complete or cause to be completed the Public Works Improvements to the 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 City Council 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.
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 shall in no way release any guarantee given by Principal pursuant to this Agreement, or relieve or release those providing Public Works Improvement security pursuant to this 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 SF #4830-1910-6882 v8 3 PUBLIC IMPROVEMENT AGREEMENT
work to be performed thereunder or the specifications accompanying the same including, but not limited to, the Public Works Improvement plan 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.
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 approved plans and specifications, and any subsequent 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:
1. The date work is commenced;
2. Work stoppage of more than one day;
3. The accomplishment of work on a Saturday, Sunday, or legal holiday;
4. Completion of the Public Works Improvements.
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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, department contrary approval notwithstanding, and otherwise shall conform to the Public Works Improvement plans.
2. .
3. Completion of Required Improvements. Upon completion of all Required Improvements in accordance with the plans approved by City on ___________, 201__, 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.
4. 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 SF #4830-1910-6882 v8 5 PUBLIC IMPROVEMENT AGREEMENT
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.
5. Extension of Time to Complete Improvements.
a. The City Engineer may extend the date for completing the Required 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.
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. 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.
7. 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 SF #4830-1910-6882 v8 6 PUBLIC IMPROVEMENT AGREEMENT
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 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.
Until final acceptance of the Required Improvements, Principal shall give good and adequate warning to the public of each and every dangerous condition existing on the City Property, and will take reasonable actions to protect the public from such dangerous conditions.
8. 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.
9. Security.
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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 ($) and sufficient to assure City that the Required Improvements will be satisfactorily completed (“Performance Bond”).
(2) Labor and Materials Bond. Either a cash deposit, a
corporate surety bond issued by an admitted surety insurer, or an instrument of credit, whichever is required by the City Engineer, in an amount equivalent to one hundred percent (100%) of the total estimated cost of the Required Improvements, and sufficient to secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for the work (“Labor and Materials Bond”).
(3) Warranty Bond. As set forth in Section 8, Principal guarantees the Required Improvements to be free of defects in material and workmanship for the Warranty Period. Upon acceptance of the Required Improvements by the City, Principal shall provide security in the form of a bond or other security acceptable to the City Engineer to guarantee the Required Improvements throughout the Warranty Period (“Warranty Bond”). The amount of the Warranty Bond for the accepted Required Improvements shall be equal to ten percent (10%) of the total estimated cost of construction of the Required Improvements, i.e., ($), and shall be retained for the Warranty Period by City.
b. Additional Requirements.
(1) If required by City, a cash deposit, corporate surety bond issued by an admitted surety insurer, or instrument of credit, whichever is required by the City Engineer, sufficient to assure City that the surface water drainage of the Project shall not interfere with the use of neighboring property, including pubic streets and highways, and in a form satisfactory to City Attorney.
(2) City shall be the sole indemnitee named on any instrument required by this Agreement.
(3) 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.
(4) The bonds shall be furnished on the forms reasonably satisfactory to City.
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(5) 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.
(6) 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.
(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.
10. 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 CITY to enforce the provisions of this Agreement. Should the Principal not comply with the provisions of this Agreement, 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, below, CITY shall not be limited to recovering the amount of said deposit as and for the CITY’s attorneys’ fees, and the provisions of PART 14 herein shall remain in full force and effect, notwithstanding the provisions of this section. The provisions of PART 14 herein shall remain in full force and effect, notwithstanding the provision of this Section. Upon final acceptance of the Improvements, or upon occupancy of all Subdivision dwelling units, the cash deposit, or remaining portion thereof, will be returned to Principal.
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B. Inspection of Improvements: Principal shall, upon execution of this Agreement, make an initial deposit with the City of cash in the sum of $xxx, to pay for City inspection of the Improvements listed in Exhibit A. In addition to the Public 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.
11. 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.
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 Disease per employee; $1,000,000 Disease 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: $3,000,000 per Occurrence; $4,000,000 General Aggregate; $4,000,000 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. If contractor maintains higher limits than the specified minimum limits, Contractor requires and shall be entitled to coverage for the higher limits maintained by contractor.
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 SF #4830-1910-6882 v8 10 PUBLIC IMPROVEMENT AGREEMENT
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. Principal Not Agent of City. Neither Principal nor any of Principal’s agents, contractors, or subcontractors are or shall be considered to be agents of the City in connection with the performance of Principal’s obligations under this Agreement.
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:
Company Name:
Address:
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 SF #4830-1910-6882 v8 11 PUBLIC IMPROVEMENT AGREEMENT
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.
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. Construction and Interpretation. It is agreed and acknowledged by Principal that the provisions of this Agreement have been arrived at through negotiation, and that Principal has had a full and fair opportunity to revise the provisions of this Agreement and to have such provisions reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not apply in construing or interpreting this Agreement.
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 SF #4830-1910-6882 v8 12 PUBLIC IMPROVEMENT AGREEMENT
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 counterpart originals, which taken together, shall constitute one and the same instrument.
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
ATTEST:
___________________________
Lauren Berges
City Clerk
APPROVED AS TO FORM
___________________________
John Bakker
City Attorney
PRINCIPAL
By:
By: ________________________________
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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)
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EXHIBIT “A” to PUBLIC IMPROVEMENT AGREEMENT
LEGAL DESCRIPTION OF PRINCIPAL PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF COTATI, COUNTY OF SONOMA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
[Insert 5 page legal description]
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EXHIBIT “B” to PUBLIC IMPROVEMENT AGREEMENT
LEGAL DESCRIPTION OF CITY PROPERTY
ALL THAT CERTAIN REAL PROPERTY IN THE CITY OF COTATI, COUNTY OF
SONOMA, STATE OF CALIFORNIA MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(1) As to St Josephs Way
(2) As to the Park and Ride Parking Lot and access
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EXHIBIT “C” to PUBLIC IMPROVEMENT AGREEMENT
Engineering Department’s Uniform Application Fee Addendum and Indemnification Agreement