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RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
File No. UP/MJS 03-49 SPACE ABOVE THIS LINE FOR RECORDER'S USE
SUBDIVISION IMPROVEMENT
AGREEMENT FOR 8841 Old Redwood Highway
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”), by and between the City of Cotati, a municipal corporation of the State of California, (hereinafter designated as CITY), and Pink Viking ORD, LLC (hereinafter designated as SUBDIVIDER).
WHEREAS, CITY, by City Council Resolution No. 2024-4 , dated January 23, 2024, has approved SUBDIVIDER's vesting tentative map of the above named Major Subdivision, subject to certain conditions; and WHEREAS, Subdivider, pursuant to the State of California Subdivision Map Act and all applicable ordinances of City, has presented to City improvement plans outlining thereon the improvements to be constructed by Subdivider within the abovementioned Subdivision; and WHEREAS, for the purpose of complying with the CITY’s Subdivision Ordinance, as amended, the Subdivision Map Act, and for the purpose of causing the final map of the above named subdivision to be approved and the major subdivision to be finalized, this Agreement is entered into pursuant to the requirements of said Ordinance and the Subdivision Map Act.
NOW THEREFORE, CITY and SUBDIVIDER agree as follows:
PART I: BASIS FOR WORK
SUBDIVIDER's Public Works Improvements are more fully set forth in the Public Works Subdivision Improvement Plans approved by and on file with the City Engineer’s office. The department identified in Exhibit A for each such part shall be the "responsible department" for ratification, plan approval, revisions and inspections, etc. All questions as to the responsible department shall be referred to the City Engineer for determination.
PART II: RESPONSIBILITIES
SUBDIVIDER has the responsibility of providing for the design and construction of certain specified Public Works Improvements for the subject subdivision and has submitted certain plans entitled “Flahavan Estates Subdivision Improvement Plans” and dated ______________2025 (“Public Works Improvement Plans”) for the construction of Public Works Improvements, which plans shall be approved by and be on file in the City Engineer’s office and are incorporated herein and made a part hereof, (hereinafter termed "Public Works Improvements"). These plans have been reviewed and approved as meeting CITY approved standards. However, CITY has not made an independent investigation of the job site, soils conditions, and all other conditions that might affect the design and construction of the Public Works Improvements. It is the responsibility of SUBDIVIDER to design and construct the Public Works Improvements in such a manner as to ensure compliance with this agreement, applicable federal, state and local laws and standards, and accomplishment of the Public Works Improvement’s purposes. In the event that job conditions require changes in the - 2 - COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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approved Public Works Improvement plans, a request for such deviation must be submitted in writing by SUBDIVIDER's engineer for approval by the responsible department; no deviation will be allowed without such approval.
PART III: TIME
SUBDIVIDER 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 SUBDIVIDER 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 SUBDIVIDER 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 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 SUBDIVIDER 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.
PART IV: NOTICE, INSPECTION AND STANDARDS
SUBDIVIDER 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.
SUBDIVIDER 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 SUBDIVIDER 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.
PART V: CONSTRUCTION COST
The estimated cost of constructing the Public Works Improvements as adjusted for inflation is agreed to be $2,618,033 (“construction costs”). The construction cost estimate for these Public Works Improvements are presented in Exhibit B. In addition to the full amount of the security, there shall be included costs and reasonable expenses and fees including attorney's and expert's fees incurred in enforcing the obligation secured. Where the use of a set aside letter is acceptable to - 3 - COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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and approved by the City Engineer as security, such security must include an additional twenty percent (20%) of the estimated construction cost.
PART VI: MONUMENTATION
A copy of the Subdivision Final Map shall be on file in the City Engineer’s office and made a part hereof. SUBDIVIDER agrees that within two (2) years of the Effective Date of this Agreement, all monuments not previously set will be set within the Subdivision as shown on said map. The estimated cost of the monumenting described is agreed to be $2,850.
SUBDIVIDER hereby guarantees payment of the cost of such monumenting. SUBDIVIDER shall immediately notify CITY in writing when the monumenting has been completed and paid for in full and shall present to CITY evidence of such payment and receipt thereof by the surveyor/engineer.
PART VII: SECURITY
A. SUBDIVIDER shall, prior to the CITY's approval of Subdivision's Final Map, deliver to CITY Engineer 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, equivalent to one hundred per cent (100%) of the estimate set forth in PART V and sufficient to assure CITY that the Public Works Improvement work described in PART I will be satisfactorily completed.
(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’s Engineer, equivalent of one hundred per cent (100%) of the estimate set forth in PART V and sufficient to assure CITY that SUBDIVIDER's contractors, subcontractors, and other persons furnishing labor or materials shall be paid therefor. (3). MONUMENTATION BOND: Either a cash deposit or a corporate surety bond issued by an admitted surety insurer, whichever is required by City Engineer, equivalent to the amount set forth in PART VI and sufficient to satisfy the requirements of Article 9, Chapter 4, of the Subdivision Map Act.
B. MAINTENANCE BOND: SUBDIVIDER guarantees the Public Works Improvements to be free of defects in material and workmanship for a period of one (1) year following the CITY’s acceptance of Public Works Improvements. Upon acceptance of any subdivision Public Improvements by the City Council, SUBDIVIDER shall provide security in the form of a bond or other security acceptable to the City Engineer to guarantee the Public Works Improvements throughout a one year warranty period. The amount of the warranty security for accepted Public Works Improvements shall not be less than ten percent (10%) of the cost of construction of the Public Works Improvements, and shall be retained for the one-year warranty period by CITY.
C. 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 subdivision shall not interfere with the use of neighboring property, including public streets and highways.
CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required by this PART VII shall conform with the provisions of Chapter 5 of the Subdivision Map Act.
PART VIII: INSPECTION FEES
Prior to the CITY's approval of SUBDIVIDER's final map, SUBDIVIDER shall pay to the responsible department all fees necessary to cover the cost of inspection of the part(s) of the Public Works Improvements which will be inspected by CITY.
PART IX: PAYMENT OF FEES (fees to be updated)
A. SUBDIVIDER shall pay the following types of fees at the times specified in subsection B in the amounts and at rates in effect at the time payment is made (unless otherwise required by law or City ordinance):
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(1) Park-in-Lieu Fee: (X) (FMV of 1 Acre) (1.20)
(2) Park-in-Lieu Fee:
X = .005(U)(P)
X = Amount of Parkland Required
U= Total number of approved dwelling units in the subdivision.
P = 3.104 for detached single-family dwellings
2.438 for attached single-family dwellings
1.664 for duplexes, and multi-family dwellings containing four or fewer dwelling units
2.107 for multi-family dwellings containing five or more units
1.738 for mobile homes
FMV = Fair Market Value
(3) Traffic Mitigation: $8,415. per dwelling unit
(4) Water Conservation: $1,750. per primary unit
$875. per 2nd dwelling unit
(5) Bed Tax Fee: $369. – 2 bedrooms
$422.– 3 bedrooms
(6)
$4730.– 4 bedrooms
Sewer Connection (based on water meter size)
(7) Water Connection (based on meter size)
(8) Standard Fees collected at time of building permit issuance.
B. SUBDIVIDER shall pay the pro-rata portion allocable to each dwelling at the time of Building Permit issuance for that unit, except the Low and Moderate Income Housing in Lieu Fee shall be collected as described under Part IX above.
PART X: DEPOSITS
A. Dust Control, Erosions Control and Planting: SUBDIVIDER shall, upon execution of this Agreement, deposit with the CITY cash in the sum of $5,000 to guarantee dust control, erosion control, and timely planting of graded areas during construction. Should SUBDIVIDER fail to provide adequate dust control, erosion control, or planting, CITY may have the work done and pay for it with said cash deposit. In the event that CITY is required to utilize said deposit for said purposes, upon twenty-one (21) days’ notice, SUBDIVIDER shall replenish the deposit so that it remains in the amount of $5,000.00 until the time that CITY us required to refund the deposit to SUBDIVIDER. 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 SUBDIVIDER.
B. Legal and Administrative Costs: SUBDIVIDER 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 SUBDIVIDER 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 XXVII, 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 XIX herein shall remain in full force and effect, notwithstanding the provisions of this section. The provisions of PART XIX herein shall remain in full force and effect, notwithstanding the provision of this Section. - 5 - COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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C. Inspection of Improvements: SUBDIVIDER shall, upon execution of this Agreement, make an initial deposit with the City cash in the sum of $30,000, 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, retaining walls and fences, and lot drainage features.
SUBDIVIDER has signed the attached (Exhibit C) Engineering Department’s Uniform Application Fee Addendum and Indemnification Agreement. In addition to the initial deposit, the SUBDIVIDER may be required to make further deposits for anticipated work.
PART XI: NOTICE OF COMPLETION / RELEASE OF SECURITIES
Upon completion of the Public Works Improvements, CITY shall comply with Section 3093 of the Civil Code and shall forthwith record the Notice of Completion required by said section.
CITY shall not be required to release any security relating to satisfactory completion of the Public Works Improvements until acceptance of the Public Works Improvements by CITY in the case of Public Works Improvements to be dedicated for public use or in the case of Public Works Improvements which will not be dedicated and accepted by CITY until SUBDIVIDER has submitted certification by a registered civil engineer that the Public Works Improvement work has been constructed in accordance with the approved plans and specifications and the Public Works Improvements have passed any final inspections required by the responsible department. In addition, release of security will be predicated upon the receipt of any required maintenance and/or warranty agreements and security therefor.
Security given to secure payment to the Contractor, subcontractors, and to persons furnishing labor, materials, or equipment may, five days after passage of the time within which claims of lien are required to be recorded pursuant to Section 3114 et seq. of the Civil Code and after all the conditions set forth in the paragraph above have been met, be reduced to an amount equal to the amount of all claims therefor filed and of which notice has been given to CITY. The balance of the security shall be released upon settlement of all such claims and obligations for which the security was given.
CITY shall not be required to release any security relating to monumenting until SUBDIVIDER has presented to CITY evidence that the cost of monumenting has been paid and that the surveyor/engineer doing such work has received such payment.
PART XII: CORRECTION OF DEFECTIVE WORK
In the event that either the Public Works Improvements are not completed to the satisfaction of CITY in accordance with this Agreement or the monumenting work is not completed within the time specified by this agreement, or any duly executed extension thereof, CITY, in addition to any other remedy at law or equity, may complete such work with its own forces or by contract. In the event of such default by SUBDIVIDER and CITY's subsequent undertaking, SUBDIVIDER and any person, firm, partnership, entity, corporation, or association claiming any interest in the real property hereinabove described and each of them shall fully reimburse CITY. The amount of such obligation or reimbursement shall not be limited by the amount of the estimates hereinabove set forth or by such security as may have been provided to CITY in connection with this agreement, but rather shall be such amount as necessary to fully compensate the CITY for its effort and/or expense in completing such work.
PART XIII: DEFAULT ON CONSTRUCTION OF PUBLIC WORKS IMPROVEMENTS SUBDIVIDER acknowledges that if construction of the required Public Works Improvements is not made, CITY may, in addition to any other remedy at law or equity or in this agreement, withhold building and zoning permits until the Public Works Improvements have been satisfactorily completed. Building and zoning permits include, but are not limited to, certificates of occupancy for all lots within the subdivision. SUBDIVIDER hereby agrees to notify CITY in the event of sale or transfer of ownership of any part of this project.
PART XIV: TERMINATION
Unless specifically extended by written agreement of the parties, this Agreement shall automatically terminate upon a reversion to acreage of the entire subdivision.
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PART XV: WARRANTY AND INDEMNIFICATION
SUBDIVIDER hereby warrants that the design and construction of the Public Works Improvements will not adversely affect any portion of adjacent properties and that all work will be performed in a proper manner. To the fullest extent allowed by law, SUBDIVIDER agrees to and shall indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers, agents and employees, from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action, including without limitation, attorneys’ fees and costs and fees of litigation (“Liability”), of every kind, nature and description directly or indirectly arising from an act or omission of SUBDIVIDER, its employees, agents, or independent contractors in connection with SUBDIVIDER's actions and obligations hereunder; provided, however, to the extent that this Agreement constitutes a construction contract pursuant to California Civil Code §2783, SUBDIVIDER’s duty to indemnify, defend, release and save harmless pursuant to this provision shall not apply to liability arising from the sole or active negligence or willful misconduct of the CITY.
A. CITY does not, and shall not, waive any rights provided herein against SUBDIVIDER because of the acceptance by CITY, or the deposit with CITY by SUBDIVIDER, of any of the insurance policies described in Part XVI hereof.
B. SUBDIVIDER’s duty and obligations to defend, indemnify and save harmless herein shall apply, regardless of whether or not CITY has prepared, supplied, or approved of plans and/or specifications for the subdivision, and regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
D. The obligation to defend and indemnify CITY set forth herein is binding on the successors, assigns or heirs of SUBDIVIDER and shall survive the termination or completion of this Agreement to the fullest extent and duration allowed by law.
E. SUBDIVIDER agrees that the use of any and all Public Works Improvements required to be constructed pursuant to this Agreement shall be, at all times prior to final acceptance by CITY, at the sole and exclusive risk of SUBDIVIDER.
PART XVI: INSURANCE
Concurrently with the execution hereof, SUBDIVIDER shall obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph, and such insurance shall have been approved by the Risk Manager of CITY, or his/her designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, SUBDIVIDER's general contractor shall obtain or cause to be obtained and filed with the Risk Manager, all insurance required under this paragraph, and such insurance shall have been approved by the Risk Manager of CITY, as to form, amount and carrier. SUBDIVIDER shall not allow any contractor or subcontractor to commence work until all insurance required for SUBDIVIDER and SUBDIVIDER's general contractor shall have been so obtained and approved. Said insurance shall be maintained in full force and effect until the Public Works Improvements are completed and accepted by CITY. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier.
A. 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. 1/87) covering Automobile Liability, code 1 (any auto). 3) Workers' Compensation Insurance as required by the State of California and Employers' Liability Insurance.
B. Minimum Limits of Insurance. SUBDIVIDER shall maintain limits no less than:
1) General Liability: $3,000,000 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 - 7 - COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage. 3) Workers' Compensation Insurance, Statutory limits: $1,000,000 per accident for bodily injury and property damage.
4) Employers Liability: $1,000,000 per accident for bodily injury or disease.
C. No Coverage Limitations or Restrictions. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the aforementioned specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insureds (defined below). Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.
D. Deductibles and Self-Insured Retentions (“SIR”). Any deductibles or SIR must be declared to and approved by the CITY, and shall not reduce the limits of liability. At the option of the CITY, either: the insurer shall reduce or eliminate such deductibles or SIR as respects the CITY, its officers, officials, employees and volunteers; or the SUBDIVIDER shall provide a financial guarantee satisfactory to the CITY guaranteeing payment of losses and related investigations, claim administration and defense expenses. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the CITY. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to so exercise later.
E. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1) The CITY its officers, officials, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the SUBDIVIDER; and with respect to liability arising out of work or operations performed by or on behalf of the SUBDIVIDER including materials, parts or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorsement to the SUBDIVIDER's insurance, or as a separate owner's policy.
2) The Additional Insured coverage under SUBDIVIDER's insurance coverage shall be “primary and noncontributory” and will not seek contribution from CITY’s insurance or self-insurance, and shall be at least as broad as CG 20 01 04 13.
3) SUBDIVIDER’s workers’ compensation insurance shall be endorsed to waive all rights of subrogation against the CITY, its officials, officers, employees and volunteers. 4) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the CITY.
5) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before the CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.
F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VI.
G. Verification of Coverage. SUBDIVIDER shall furnish the CITY with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the CITY or on other than the CITY's forms or a separate owner’s policy, provided those forms or policies are approved by the - 8 - COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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CITY and/or amended to conform to the CITY's requirements. All certificates and endorsements are to be received and approved by the CITY before work commences. CITY reserves the right to require that the SUBDIVIDER deliver to CITY, at SUBDIVIDER's expense, complete, certified copies of all insurance policies required pursuant to this Agreement, including all required endorsements.
H. Subcontractors. SUBDIVIDER shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, including the indemnity and insurance requirements. Subcontractors hired by SUBDIVIDER agree to be bound to SUBDIVIDER and CITY in the same manner and to the same extent as SUBDIVIDER is bound to CITY under this Agreement. Subcontractors shall further agree to include these same provisions with any sub-subcontractor. A copy of these indemnity and insurance provisions will be furnished by SUBDIVIDER to a subcontractor on request. SUBDIVIDER shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in their agreement prior to commencement of any work and SUBDIVIDER shall provide proof of compliance to CITY.
I. Variations. The Risk Manager for the CITY may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the CITY's interests are otherwise fully protected.
PART XVII: TITLE INSURANCE
SUBDIVIDER shall procure, pay the cost of, and deliver to CITY, prior to acceptance of any dedication by CITY, a policy or policies of title insurance satisfactory to CITY and insuring CITY's title to all real property dedicated to CITY by SUBDIVIDER.
The CITY will comply with the provisions of Section 66462.5 of the Government Code (Subdivision Map Act) relevant to right-of-way acquisition.
PART XVIII: AUTHORITY TO SIGN
The individuals signing in their capacities as officers of corporations hereby warrant that they have the right, power, and authority to bind their respective corporations as anticipated by the provisions of this Agreement. Such warranty has been relied upon as a material inducement by CITY in entering into this agreement and, in the absence of such inducement, CITY would not have executed this Agreement.
PART XIX: ATTORNEY FEES AND COST RECOVERY
In the event either party brings an action or proceeding for damages arising out of the other's performance under this Agreement or to establish the right or remedy of either party, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs as a part of such action or proceeding.
PART XXI: GUARANTEE
Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, SUBDIVIDER guarantees all work executed by SUBDIVIDER and/or SUBDIVIDER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to the work, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one year after initial acceptance of the entire work by CITY. SUBDIVIDER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one year guarantee period without expense or charge of any nature whatsoever to CITY. SUBDIVIDER further covenants and agrees that when defects in design, workmanship and materials actually appear during the guarantee period, and have been corrected, the guarantee period shall automatically be extended for an additional year to insure that such defects have actually been corrected.
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In the event the SUBDIVIDER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days’ time, after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, and SUBDIVIDER and SUBDIVIDER’s surety shall be liable to and shall pay to CITY on demand all costs and expense of such repair, including any damages and/or excess costs incurred by CITY in preparing or obtaining repair of such defects. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results in a condition which constitutes an immediate hazard to the public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be repaired, such defect, and SUBDIVIDER shall pay to CITY on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of CITY.
If CITY, at its sole option, makes or causes to be made the necessary repairs or replacements or performs the necessary work, SUBDIVIDER shall pay, in addition to actual costs and expenses of such repair or work, an additional amount as necessary to fully compensate the CITY for its effort and/or expense incurred.
PART XXI: NO AGENCY
Neither SUBDIVIDER nor any of SUBDIVIDER's agents or contractors are or shall be considered to be agents of CITY in connection with the performance of SUBDIVIDER's obligations under this Agreement.
PART XXII: DEFAULT
If SUBDIVIDER refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extension thereof, or fails to obtain completion of said work within such time, or if SUBDIVIDER should be adjudged as bankrupt, or should make a general assignment for the benefit of SUBDIVIDER's creditors, or if a receiver should be appointed, or if SUBDIVIDER, or any of SUBDIVIDER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY Engineer may serve written notice on SUBDIVIDER and SUBDIVIDER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of SUBDIVIDER.
PART XXIII: BREACH/COMPLETION OF WORK
In the event of any such notice of breach of this Agreement, SUBDIVIDER's surety shall have the duty to take over and complete the work and the Public Works Improvements herein specified; provided, however, that if the surety, within thirty (30) days after the serving upon it of such notice of breach, does not give CITY written notice of its intention to take over the performance of the contract, and does not commence performance thereof within thirty (30) days after notice to CITY of such election, CITY may take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, for the account and at the expense of SUBDIVIDER and SUBDIVIDER's surety shall be liable to CITY for any damages and/or reasonable and documented excess costs occasioned by CITY thereby; and, in such event, CITY, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to SUBDIVIDER as may be on the site of the work and necessary therefor.
PART XXIV: NOTICES
All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
CITY Engineer
Craig A. Scott
201 W. Sierra Ave.
Cotati, CA. 94931
Notices required to be given to SUBDIVIDER shall be addressed as follows:
Pink Viking ORH, LLC C/O Brian Flahavan
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400 College Avenue
Santa Rosa, CA 95401
Notices required to be given surety of SUBDIVIDER shall be addressed as follows:
Pink Viking ORH, LLC C/O Brian Flahavan
400 College Avenue
Santa Rosa, CA 95401
Any party or the surety may change such address by notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address.
PART XXV: ASSIGNMENT
This Agreement will not be assigned without the prior written consent of CITY and any purported assignment without such prior written consent shall be void.
PART XXVI: PROTECTION OF PUBLIC
The SUBDIVIDER 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 SUBDIVIDER cannot respond at once, CITY may erect any barriers, signs and warning devices it deems necessary. In such event, SUBDIVIDER 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 SUBDIVIDER pay less than onehour 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.
PART XXVII: LABOR CODE:
By executing this Agreement, SUBDIVIDER acknowledges that the construction of the Public Works Improvements may be subject to California Labor Code Sections 1720-1861 including those provisions related to the payment of prevailing wages and if so Subcontractor shall comply and cause any of its contractors and/or subcontractors to comply with any said applicable Labor Code Sections. If in the event that it is determined that the SUBDIVIDER or any of its contractors or subcontractors violated prevailing wage law with respect to the work performed under this Agreement, SUBDIVIDER shall pay all penalties and back wages as required by applicable law and shall waive any rights that SUBDIVIDER may have against the CITY and shall indemnify, defend and hold harmless CITY for and from any claims and/or liabilities arising from any such violations. The SUBDIVIDER's attention is specifically directed to Labor Code Sections 1720 et. seq.
Copies of prevailing wage rates are on file at the CITY Clerk’s office.
PART XXVIII: MISCELLANEOUS PROVISIONS
A. Discrimination. During the performance of this Agreement, SUBDIVIDER shall not discriminate against any contractor, subcontractor, employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law.
B. No Third Party Beneficiaries. Nothing in this Agreement does or is intended to create an interest in any third party C. Amendment. This Agreement may be amended only by a written instrument executed by both parties.
D. Construction. This Agreement is the product of negotiation and compromise on the part of both parties and that the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement.
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E. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and of the CITY of Cotati. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California.
F. Non-Waiver. The CITY’s failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision.
G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
H. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between CITY and SUBDIVIDER shall survive the termination of this Agreement.
I. Effective Date: The effective date of this Agreement is the date executed by the City of Cotati.
J. Business Licenses: SUBDIVIDER, contractors, and subcontractors shall obtain business licenses pursuant to City of Cotati Municipal Code Section 5.04.250.
K. Other Special Conditions.
EXECUTED ON , 20 , AT ______________, CALIFORNIA
ON BEHALF OF CITY: ON BEHALF OF SUBDIVIDER:
City OF Cotati
________________________________
________________________________
Damien O’Bid, City Manager
________________________________
RECOMMENDED FOR APPROVAL:
________________________________
________________________________
Craig A. Scott, City Engineer
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________________________________
Damien O’Bid, Acting City Community Development Director
APPROVED AS TO FORM
_______________________________
Robin Donoghue, City Attorney
ATTACH NOTARY PUBLIC ACKNOWLEDGMENT
COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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EXHIBIT A
SUBDIVISION NAME: Flahavan Estates Subdivision
File No. 16-17
IMPROVEMENT: RESPONSIBLE
DEPARTMENT
Initial Deposit
for Inspection*
SURETY
AMOUNT
1. Site Preparation and Grading Engineering - $422,354**
2. Street Improvements Engineering - $569,007
3. Storm Drainage Engineering - $542,569
4. Sanitary Sewer Engineering - $279,375
5. Water Distribution Engineering - $251,420
6. Landscape Engineering - $30,000
7. Dry Utilities Engineering - $181,825
Subtotal $2,276,550
8. Major Category Contingency (15%) $341,483
TOTAL $30,000 $2,618,033
*A single deposit account will be kept for the Public Improvements inspections by City forces. **Security included in Grading Permit and not with the SIA.
SECURITY:
[ ] CASH [X] BOND [ ] INSTRUMENT OF CREDIT [ ] CERTIFICATE OF DEPOSIT
1. (A) PERFORMANCE $2,618,033
(B) PERFORMANCE USING INSTRUMENT OF CREDIT,
WITH 20% ADDITIONAL SURETY
2. LABOR AND MATERIALS $2,618,033
3. MAINTENANCE Received at this time? Yes [ ] No [X] $
4. MONUMENTATION $2,850
COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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EXHIBIT B
SUBDIVISION NAME: Flahavan Estates Subdivision
File No. 16-17
Construction Cost Estimate
FLAHAVAN ESTATES SUBDIVISION
ESTIMATE OF PROBABLE CONSTRUCTION COST DATE: 04/03/25
CIVIL DESIGN CONSULTANTS, INC.
SUB. TOTAL
ACCT.# DESCRIPTION OF WORK COSTS
CONSTRUCTION ITEMS SUMMARY
I ROUGH GRADING $422,345
II CLEARING AND DEMOLITION $133,704
III STORM DRAIN SYSTEM $542,569
IV SANITARY SEWER SYSTEM $279,375
V DOMESTIC WATER SYSTEM $251,420
VI STREET IMPROVEMENTS $569,007
VII SIGNING & STRIPING $25,813
VIII PRIVATE UTILITIES $181,825
IX EROSION CONTROL $49,700
X LANDSCAPE/IRRIGATION $30,000
XI SITE WALLS $287,350
CONSTRUCTION SUB-TOTAL $2,773,108
15% CONTINGENCY $415,966
CONSTRUCTION TOTAL $3,189,074
*THIS ESTIMATE IS NOT A WARRANTY OF COST
FLAHAVAN ESTATES SUBDIVISION 04/03/25 2
CONSTRUCTION ITEM UNIT QUANTITY UNIT PRICE TOTAL
I - ROUGH GRADING
EXCAVATION & COMPACTED FILL CY 39,000 $7.50 $292,500
FINE GRADE BLDG PADS SF 167,100 $0.35 $58,485
SUBGRADE PREPARATION (STREETS) SF 44,600 $1.25 $55,750
SUBGRADE FINE GRADING (STREETS) SF 44,600 $0.35 $15,610 TOTAL $422,345
II - CLEARING AND DEMOLITION
CLEAR & GRUB AC 7.1 $5,000.00 $35,500
REMOVE EXISTING CULVERT LS 3 $500.00 $1,500
REMOVE EXISTING FOUNDATION EA 3 $6,000.00 $18,000
REMOVE/ABANDON EXISTING UTILITIES LS 1 $10,000.00 $10,000 SAWCUT EXISTING PAVEMENT LF 338 $8.00 $2,704
REMOVE EXISTING TREE EA 132 $500.00 $66,000
TOTAL $133,704
III - STORM DRAIN SYSTEM
6" SD (PVC) LF 686 $40.00 $27,440
8" SD (HDPE) LF 758 $49.00 $37,142
10" SD (HDPE) LF 75 $53.00 $3,975
12" SD (HDPE) LF 411 $56.00 $23,016
15" SD (HDPE) LF 1,386 $67.00 $92,862
18" SD (HDPE) LF 35 $74.00 $2,590
24" SD (HDPE) LF 308 $93.00 $28,644
CATCH BASIN (4A) EA 7 $5,000.00 $35,000
FIELD DRAIN (12" W/ SO) EA 1 $1,500.00 $1,500
FIELD DRAIN (18" W/ SO) EA 15 $2,000.00 $30,000
FIELD DRAIN (24" W/ SO) EA 1 $2,800.00 $2,800
FIELD DRAIN (36" W/ SO) EA 1 $3,800.00 $3,800
JUNCTION BOX (DI-2424) EA 1 $2,600.00 $2,600
DROP INLET (DI-1212) EA 4 $1,200.00 $4,800
DROP INLET (DI-1818) EA 3 $1,800.00 $5,400
YARD INLET (12" SQ. CATCH BASIN) EA 10 $800.00 $8,000
48" MANHOLE EA 10 $6,800.00 $68,000
STORM DRAIN CLEANOUT EA 5 $500.00 $2,500
BIO-RETENTION BED SF 5,260 $30.00 $157,800
SIDEWALK DRAIN EA 22 $100.00 $2,200
CONNECT TO EXISTING STORM DRAIN LS 1 $2,500.00 $2,500
TOTAL $542,569
IV - SANITARY SEWER SYSTEM
6" SS (PVC) LF 510 $65.00 $33,150
8" SS (PVC) LF 1,263 $75.00 $94,725
4" SS LATERAL W/ CLEANOUT EA 35 $2,100.00 $73,500
48" MANHOLE EA 8 $8,000.00 $64,000
SSCO EA 4 $3,000.00 $12,000
CONNECT TO EXISTING SEWER LS 1 $2,000.00 $2,000
TOTAL $279,375
FLAHAVAN ESTATES SUBDIVISION 04/03/25 3
CONSTRUCTION ITEM UNIT QUANTITY UNIT PRICE TOTAL
V - DOMESTIC WATER SYSTEM
8" WATER LF 1,039 $90.00 $93,510
8" GATE VALVE EA 11 $1,750.00 $19,250
1-1/2" SINGLE WATER SERVICE EA 35 $2,500.00 $87,500
1-1/2" WATER SERVICE WATER EXTENSION LF 520 $33.00 $17,160 FIRE HYDRANT ASSEMBLY EA 2 $9,500.00 $19,000
BLOW-OFF EA 2 $5,000.00 $10,000
8"x8"x8" CUT-IN TEE EA 1 $5,000.00 $5,000
TOTAL $251,420
VI - STREET IMPROVEMENTS
AGGREGATE BASE, CLASS 2 CY 1,450 $55.00 $79,750
ASPHALT CONCRETE TON 1,214 $130.00 $157,820
EDGE GRIND EXISTING AC SF 1600 $8.00 $12,800
STANDARD CURB AND GUTTER LF 1,789 $46.00 $82,294
CURB AND GUTTER WITH KEY AT LIP LF 456 $54.00 $24,624
CONC. MOSITURE BARRIER LF 1,333 $11.00 $14,663
4" CONCRETE SIDEWALK SF 12,002 $8.00 $96,016
6" CONCRETE DRIVEWAY SF 3,817 $10.00 $38,170
CONCRETE SWALE LF 397 $60.00 $23,820
DUAL DIRECTION CURB RAMP EA 4 $1,800.00 $7,200
STREET LIGHT (STD 302) EA 7 $3,500.00 $24,500
STREET LIGHT (STD 301 - ARTERIAL) EA 1 $4,500.00 $4,500 STREET MONUMENTS EA 3 $950.00 $2,850
TOTAL $569,007
VII - SIGNING & STRIPING
CENTERLINE MARKINGS LF 50 $3.50 $175
TWO-WAY LEFT TURN LINE LF 605 $7.50 $4,538
6" THERMOPLASTIC BIKE LANE LINE LF 631 $5.00 $3,155
12" CROSS WALK STRIPE LF 92 $10.00 $920
STOP LEGEND EA 1 $750.00 $750
THERMOPLASTIC TURN ARROW EA 4 $600.00 $2,400
BIKE LANE SYMBOL W/ DIRECTION ARROW EA 4 $1,200.00 $4,800 COMBINATION ST NAME STOP SIGN EA 2 $800.00 $1,600
ADVANCE ST NAME INERSECTION WARNING SIGN EA 1 $750.00 $750 COMBINATION NO PARKING BEGIN/END SIGN EA 2 $650.00 $1,300 SIDEWALK BARRICADE EA 3 $675.00 $2,025
STREET BARRICADE SIGN EA 1 $650.00 $650
STREET BARRICADE EA 1 $2,750.00 $2,750
TOTAL $25,813
FLAHAVAN ESTATES SUBDIVISION 04/03/25 4
CONSTRUCTION ITEM UNIT QUANTITY UNIT PRICE TOTAL
VIII - PRIVATE UTILITIES
PG&E, PAC BELL, COMCAST INFRASTRUCTURE LF 1,039 $175.00 $181,825 TOTAL $181,825
IX - EROSION CONTROL
EROSION CONTROL AC 7 $7,000.00 $49,700
TOTAL $49,700
X - LANDSCAPE/IRRIGATION
LANDSCAPING & IRRIGATION LS 1 $30,000.00 $30,000
TOTAL $30,000
XI - SITE WALLS
RETAINING WALLS LF 821 $350.00 $287,350
TOTAL $287,350
COTATI SUBDIVISION IMPROVEMENT AGREEMENT
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EXHIBIT C
SUBDIVISION NAME: Flahavan Estates Subdivision
File No. 16-17
Uniform Application Fee Addendum and Indemnification Agreement 2237250.1