Final Map No. 8393
Subdivision Improvement Agreement page 1 of 15
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Oakland
Planning and Building Department
Dalziel Administration Building
250 Frank H. Ogawa Plaza – 2nd Floor
Oakland, CA 94612
Attention: City Engineer
This document is exempt from payment
of a recording fee pursuant to California
Government Code section 27383.
SPACE ABOVE FOR RECORDER’S USE
SUBDIVISION IMPROVEMENT AGREEMENT
Deferred Construction of Public Infrastructure Improvements
4430, 4440, and 4448 Howe Street
Final Map No. 8393
This SUBDIVISION IMPROVEMENT AGREEMENT (“ Agreement”), dated October ___, 2023 (“Effective Date”), is entered into by and between the City of Oakland, a California municipal corporation (“CITY”), and Oakmeda Management, LLC, a California limited liability company (“SUBDIVIDER”), collectively the “Parties,” with reference to the following facts and circumstances:
RECITALS
A. SUBDIVIDER is the owner in fee title and subdivider of three (3) lots located within the corporate limits of the CITY, which are identified by the Alameda County Assessor as APNs 013 -1128-018-00, 013-1128-019-00, and 013-1128-020- 00 and by the Alameda County Clerk-Recorder as Tract No. 8393, and by the City of Oakland as 4432 Howe Street.
B. SUBDIVIDER has presented a Final Map to the City, identified as Final Map No. 8393, which proposes a subdivision of previously subdivided lots of this platted land into seven (7) developable micro-lots. The Final Map is attached hereto at Exhibit A.
C. The Final Map has been prepared in accordance with the Subdivision Map Act of the State of California, the subdivision ordinances of the CITY, and the tentative tract map of the subdivision previously approved by the City Planning Commission on June 12, 2017.
Final Map No. 8393
Subdivision Improvement Agreement page 2 of 15
D. SUBDIVIDER has asked the CITY and local public utility companies to accept the permanent maintenance of the required Public Infrastructure Improvements shown on the construction plans accompanying permit number PX1800046 and included in Exhibit B, attached hereto and incorporated herein.
E. Construction of the required Public Infrastructure Improvements, however, has not commenced nor has it been accepted by the CITY. Consequently, and in consideration of the approval of the proposed Tract Map and acceptance of the permanent maintenance of the required Public Infrastructure Improvements, the parties desire to establish an Agreement binding the SUBDIVIDER to complete the required improvements pursuant to the terms and conditions set forth herein.
AGREEMENT
ACCORDINGLY, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the CITY and the SUBDIVIDER agree as follows:
1. Approval of Final Map No. 8393
Approval of the Final Map No. 8393 by the CITY shall be conditioned upon recordation of this Agreement with the Alameda County Recorder, as well as SUBDIVIDER’s satisfactory performance of its obligations specified in this Agreement, as determined by the CITY.
2. Construction of Public Infrastructure Improvements
The SUBDIVIDER shall construct all required off -site and on- site Public Infrastructure Improvements in strict accordance with all permits, specifications, plans and applicable CITY standards and performance criteria as specified in Exhibit B and set forth below in Section 3, Special Conditions.
3. Special Conditions
SUBDIVIDER shall comply with the special conditions as follows:
A. The Public Infrastructure Improvements shall conform to the performance criteria specified in Oakland Municipal Code (OMC) Chapter 16.16 – Design Standards and in Standard Details for Public Works Construction and Standard Specifications for Public Works Construction, current editions.
B. The time duration for the completion of required Public Infrastructure Improvements, as set forth in Section 4 below, shall include allowance for construction workday delays attributable to consecutive and intermittent inclement weather, as has been recorded by the United States Weather Bureau for the CITY and surrounding area and seasonally averaged for the previous ten years.
Final Map No. 8393
Subdivision Improvement Agreement page 3 of 15
C. All construction activities related to the Public Infrastructure Improvements (including, without limitation, hours, days, and months of operation and control of public nuisance conditions) shall conform to the requirements of all CITY Conditions of Approval for the project, the O MC, including section 15.04.780 and subsections 3304.6 and 3304.11 and the Standard Conditions of Approval and Mitigation Monitoring and Reporting Program (“ SCAMMRP”) approved by the City Planning Commission on June 12, 2017.
D. Performance standards for the construction of the Public Infrastructure Improvements shall comply with the requirements of OMC Chapter 17.120 and with regional, state, and federal regulations for “Best Management Practices” for erosion and sedimentation control, including a California Construction General Permit with a Storm Wa ter Pollution Prevention Plan ( SWPPP – “C6”) provided by a Qualified SWPPP Developer ( “QSD”) and monitored by a Qualified SWPPP Practitioner (“QSP”).
E. In order to safeguard life, public and private property, and to ensure that the work will be carried out in an orderly manner in conformance with all regulations and without creating a public nuisance, the City Engineer may add to, remove, or change these Special Conditions from time to time during the duration of the permit as he or she deems reasonably necessary.
4. Completion of Public Infrastructure Improvements
A. All c onstruction of the required Public Infrastructure Improvements shall be completed by the SUBDIVIDER within one (1) year of the Effective Date of this Agreement, except those required improvements for which another completion date is stated in Exhibit B or set forth above in Section 3, Special Conditions. Construction shall not be deemed complete until the public infrastructure permit has received a final inspection sign- off by the city inspector, an unconditional Letter of Completion, signed and stamped by the SUBDIVIDER’s engineer, has been received by the CITY, and an unconditional Letter of Completion has been issued by the City Engineer.
B. The City Engineer may extend the time for completion of the required Public Infrastructure Improvements upon demonstration of good cause . The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle the SUBDIVIDER to an extension under this Section 4B.
C. An extension may be granted without notice to the SUBDIVIDER’s surety, and extensions so granted shall not relieve the surety’ s liability on any of the bonds required by this Agreement.
D. In the event that an extension is granted, the SUBDIVIDER agrees to promptly extend the term of all surety bonds securing its performance under this Agreement, and/or provide additional bonds or other surety acceptable to the CITY. All such bonds and/or other surety are subject to review and approval by the City Attorney for legal sufficiency, and if no bonds or other surety acceptable to the City Atto rney are provided to secure the SUBDIVIDER’s performance, the extension shall be void.
Final Map No. 8393
Subdivision Improvement Agreement page 4 of 15
5. Acceptance of Dedications and Ownership of Public Infrastructure Improvements
Upon final approval of the Public Infrastructure Improvement permit and unconditional issuance of a Certificate of Completion, and all improvements required by this Agreement shall become the sole property of the CITY. The CITY will subsequently accept the permanent maintenance of the these improvements as set forth below in S ection 7, Maintenance of Public Infrastructure Improvements, and Section 8, Guarantee of Workmanship and Warranty of Equipment, Materials, and Expertise.
6. Responsibility for Public Infrastructure Improvements
Until the Certificate of Completion is unconditionally issued, the SUBDIVIDER shall give good and adequate warning to the public of each and every defective or dangerous condition existing or arising within all public right-of- way and public easements offered for dedication , and shall adequately protect the public from said unsafe conditions. Warning to and protection of the public shall remain the sole responsibility and expense of the SUBDIVIDER until such time as the Certificate of Completion is unconditionally issued.
7. Maintenance of Public Infrastructure Improvements
Until two (2) year s have elapsed following the unconditional issuance of the Certificate of Completion, the SUBDIVIDER shall maintain th e construction of the required public infrastructure improvements and shall immediately perform or cause to be performed at its sole expense all necessary repairs, replacements, additions, or other corrective actions.
8. Guarantee of Workmanship and Warranty of Equipment, Materials, and Exp ertise
Until two (2) year s has elapsed following the unconditional issuance of the Certificate of Completion, SUBDIVIDER warrants that the required Public Infrastructure Improvements, including the equipment and materials provided for the required improvements, are and will be free from defects and guarantees that the construction of the required improvements is and will be free from deficiencies and that the required improvements will perform satisfactorily in accordance with the specifications, plans and applicable CITY standards and performance criteria as specified in Exhibit A and set forth above in Section 3, Special Conditions. SUBDIVIDER further warrants that its design professionals are competent, that their analyses are adequate, and that their designs will meet or exceed the applicable CITY standards and performance criteria and in strict accordance with all permits, specifications, plans and applicable CITY standards and performance criteria as specified in the permits incorporated by reference pursuant to Section 21, the Conditions of Approval for the Project, and the OMC , and any other relevant Federal, State or local regulations, as well as those set forth below in Section 3, Special Conditions.
If at any time before the expiration of the guarantee and warrant y period specified herein said designs prove to be inadequate in any respect, as determined by the City Engineer, the SUBDIVIDER shall make changes at its sole expense necessary to assure conformance with said standards and criteria.
Final Map No. 8393
Subdivision Improvement Agreement page 5 of 15
9. Inspection of Construction, Equipment, And Materials
Inspection of the construction, equipment and materials, or approval of the construction, equipment and materials inspected, or statement by any officer, agent, or employee of the CITY indicating the construction, equipment and materials, or any part thereof, comply with the requirements and conditions of this Agreement, or acceptance of the whole or any part of the construction and materials, or payments thereof, or any combinations, or any combination, or all of these acts shall not relieve the SUBDIVIDER of its obligation to fulfill this Agreement as prescribed herein; nor shall the CITY be thereby estopped from bringing any action for damages arising from the failure of the SUBDIVIDER to comply with any of the requirements and conditions of this Agreement.
10. Payment of Fees and Penalties and Accrued Interest
Prior to issuance of the Certificate of Completion and prior to acceptance by the CITY of the required Public Infrastructure Improvements for permanent maintenance, the SUBDIVIDER shall pay all fees and penalties and accrued interest to the CITY and other public a gencies that remain unpaid. Interest on amounts owed to the CITY shall accrue at the rates set forth in its Master Fee Schedule and from the date that the fees and penalties are assessed and shall continue until full payment is received, whether or not any conditions of this Agreement are extended or modified.
11. Reversion to Acreage
If the SUBDIVIDER fails to perform its obligations under this Agreement, the SUBDIVIDER consents to the reversion to acreage of the land that is the subject of this Agreement pursuant to Government Code section 66499.16, and to bear all applicable costs.
12. Property Acquisition
If the SUBDIVIDER is unable to acquire property required for the construction of required improvements, the SUBDIVIDER agrees to execute the standard CITY Contract for Real Property Acquisition to provide for acquisition through eminent domain.
Final Map No. 8393
Subdivision Improvement Agreement page 6 of 15
13. Security
SUBDIVIDER shall present to the CITY surety bonds, in a form satisfactory to the City Attorney, issued by a corporate surety authorized to issue said security in the State of California as follows:
A. Before execution of this Agreement, the following securities shall be presented:
1. Faithful Performance Bond in a face amount not less than One Hundred Twenty-Nine Thousand and Eight Hundred Dollars ($129,800), which is the full amount (one - hundred percent) of the City Engineer’s total estimated cost for constructing the required on-site and off-site public infrastructure improvements, to secure faithful performance of this Agreement by the SUBDIVIDER; and
2. Labor and Materials Bond in a face amount not less than Sixty Four Thousand and Nine Hundred Dollars ($64,900), which is one-half (fifty percent) of the full amount of the City Engineer’s total estimated cost for constructing the required on-site and off-site public infrastructure improvements, to secure payment by the SUBDIVIDER to its contractor, subcontractors, laborers and material suppliers furnishing supervision, labor, materials and equipment engaged in the construction pursuant to this Agreement, and further to secure payment as required by the Unemployment Insurance Act.
The Faithful Performance Bond and the Labor and Materials Bond shall not be limited in duration nor stipulate a date of expiration and shall remain in effect until the unconditional issuance of the Certificate of Completion of the required Public Infrastructure Improvements.
B. Before final approval of the Public Infra structure Improvements , the following security shall be presented:
Maintenance Bond in a face amount not less than Thirty Two Thousand and Four Hundred Fifty Dollars ( $32,450) (twenty-five percent) of the full amount of the City Engineer’s total estimated cost for constructing the required on- site and off -site public infrastructure improvements, to secure faithful performance of Section 7, Maintenance of Public Infrastructure Improvements, and Section 8, Guarantee of Workmanship and Warranty of Equipment, Materials, and Expertise, above. This Maintenance Bond shall remain in effect for not less than two (2) years after the date of the unconditional issuance of the Certificate of Completion of the required Public Infrastructure Improvements.
C. Pursuant to Government Code section 66499.4, the obligation guaranteed by each bond shall include costs and reasonable expenses and fees, including reasonable attorney fees and expert witness fees , incurred by the CITY in successfully enforcing said obligations and shall be in addition to the face amount of each bond.
D. All such bonds and/or other surety are subject to review and approval by the City Attorney for legal sufficiency, and if no bonds or other surety acceptable to the City Attorney are provided, this Agreement shall be void.
Final Map No. 8393
Subdivision Improvement Agreement page 7 of 15
14. Alternative Security
In lieu of the bonds required above in Section 13, Security, alternative securities may be substituted by the SUBDIVIDER in a form provided by Government Code Section 66499.3 and subject to review and approval by the City Attorney.
15. Defense, Indemnity, and Hold Harmless
A. To the maximum extent permitted by law, SUBDIVIDER shall defend (with counsel acceptable to the CITY), hold harmless , and indemnify the CITY, the Oakland City Council, and its respective officials , officers, employees , agents, representatives, and volunteers (collectively, the “ City Parties ”) from any and all liability, claims, demands, losses (direct or indirect), lawsuits, actions, causes of action, proceeding and judgments for injury and/or damages of any kind and nature whatsoever (including legal costs, attorneys’ fees, expert witness or consultant fees, City Attorney or staff time, expenses or costs) (collectively called “Action”) arising out of, related to or caused by performance of this Agreement, including without limitation the design, construction and/or maintenance (for a period of two (2) years following unconditional issuance of the Certificate of Completion) of the Public Infrastructure Improvements, except for injuries and damages caused by the sole gross negligence of the City Parties . The CITY may elect, in its sole and absolute discretion, to participate in the defense of said Action, and the SUBDIVIDER shall reimburse the CITY for its reasonable legal costs and attorneys’ fees. Not in limitation of the foregoing, SUBDIVIDER further agrees to defend and protect the City Parties from all liability or claims because of, or arising out of, the use of any patent or patented articles in the construction of said improvements.
SUBDIVIDER waives all claims and recourse against the CITY, including, without limitation, the right of contribution for loss or damage to persons or property, arising from, growing out of, or in any way connected with or incident to the work performed or failed to be performed under this Agreement except claims and recourse arising directly from the sole gross negligence of the City Parties . This Defense, Indemnity, and Hold Harmless section shall survive the termination of this Agreement.
B. W ithin ten (10) calendar days of the filing of any Action as specified in subsection A above, SUBDIVIDER shall execute a Joint Defense Letter Agreement with the CITY, acceptable to the City Attorney, which memorializes the above obligations. These obligations and the Joint Defense Letter of Agreement shall survive termination, extinguishment or invalidation of this Agreement. Failure to timely execute the Joint Defense Letter Agreement does not relieve SUBDIVIDER of any of the obligations contained in this Agreement or other requirements that may be imposed by the CITY.
Final Map No. 8393
Subdivision Improvement Agreement page 8 of 15
16. Insurance Required
SUBDIVIDER shall procure and maintain for the duration of the Agreement sufficient insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by SUBDIVIDER and his agents, r epresentatives, employees or subcontractors.
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 covering Automobile Liability, code 1 “any auto.”
3. Workers’ Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance.
B. Minimum Limits of Insurance
1. Commercial General Liability insurance, including but not limited to, Bodily Injury, Broad Form Property Damage, Contractual Liability, Operations, Products and Completed Operations, Owners and Contractors Protective Liability, and/or XCU coverage, when applicable, with limits not less than $2,000,000.00 combined single limit per occurrence for bodily damage, personal injury and property damage. The limits of insurance shall apply separately to this project or location. The policy shall contain a severability of interest clause or cross liability clause or the equivalent thereof.
2. Automobile Liability with limits not less than $2,000,000.00 combined single limit per accident for bodily injury and property damage.
3. Worker’s Compensation insurance as required by the laws of the State of California with limits not less than $1,000,000.00. Statutory coverage may include Employers Liability coverage. The SUBDIVIDER certifies that he/she is aware of the provisions of section 3700 of the California Labor Code, which requires every employer to provide Workers ’ Compensation coverage, or to undertake self -insurance in accordance with the provisions of that Code. The SUBDIVIDER shall comply with the provisions of section 3700 of the California Labor Code before commencing performance of the work under this Agreeme nt and thereafter as required by that code.
4. Professional Liability/Errors/Omissions insurance with limits not less than $1,000,000.00.
Final Map No. 8393
Subdivision Improvement Agreement page 9 of 15
5. Builders’ Risk/Course of Construction insurance covering all risks of loss with limits not less than the completed value of the project with no coinsurance penalty provisions.
The CITY shall be named as loss payee under this policy. The insurer shall waive all rights of subrogation against the CITY.
C. Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, either:
1. T he insurer shall reduce or eliminate such deductibles or self -insured retentions with respect to the City Parties; or
2. The SUBDIVIDER shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
D. Other Insurance Provisions
The general and automobile liability policies shall contain, or be endorsed to contain, the following provisions:
1. The City Parties are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the SUBDIVIDER, products and completed operations of the SUBDIVIDER; premises owned, occupied or used by the SUBDIVIDER, or automobiles owned, leased, hired or borrowed by the SUBDIVIDER. The coverage shall contain no special limitations on the scope of protection afforded to the City Parties.
2. The SUBDIVIDER’s insurance coverage shall be primary insurance as respects the City Parties. Any insurance or self-insurance maintained by the City Parties shall be excess of the SUBDIVIDER’s insurance and shall not contribute with it.
3. Any failure to comply with reporting provisions of the policies required by this clause, including breaches of warranties, shall not affect coverage provided to the City Parties.
4. SUBDIVIDER’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
5. The insurer shall agree to waive all rights of subrogation against the City Parties for losses arising from work performed by SUBDIVIDER for the CITY.
6. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled, except for non -payment of premium, by either party, except after thirty (30) days prior written notice by certified mail, return receipt required, has been given to the CITY. In the event the policy is canceled for non-payment of premium, ten (10) days prior written notice, as stated above, will be given.
Final Map No. 8393
Subdivision Improvement Agreement page 10 of 15
E. Acceptability of Insurers
If the insurance company providing coverage is licensed to do business in the State of California, the company shall have an A.M. Best rating of not less than A:VII. However, if the insurance company is not licensed to do business in California, the A.M. Best rating shall not be less than A+:X. The maximum A.M. Best rating is A++:XV.
F. Verification of Coverage
SUBDIVIDER shall furnish the CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. T he certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Commercial General Liability endorsement shall be a form CG 20 10 (or proprietary equivalent), attached to this form. The Commercial Automobile Liability endorsement shall be a form CA 20 48, attached to this document. All certificates and endorsements are to be received and approved by the CITY before work commences. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any ti me. A STATEMENT OF
ADDITIONAL INSURED ENDORSEMENT ON THE ACORD INSURANCE CERTIFICATE
FORM IS INSUFFICIENT AND WILL BE REJECTED AS PROOF OF THE ADDITIONAL INSURED REQUIREMENT.
G. Subcontractors
SUBDIVIDER shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein.
17. Participation in Benefit Districts
SUBDIVIDER shall participate in all Benefit Districts formed by the CITY prior to the execution of this Agreement and shall pay the prorated fee due the CITY under the terms of Benefit District or Districts as applied to the real property covered by this Agreement.
18. Actions to Enforce
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement , the prevailing party shall be entitled to costs and reasonable expenses and fees , including reasonable attorneys ’ fees and expert witness fees, in addition to any other relief to which they may be entitled.
19. Beneficiaries, Heirs, Assigns, and Successors In Interest
This Agreement pertains to and runs with the real property included within Final Map No. 8393, which land is expressly agreed to benefit from the privileges granted to SUBDIVIDER under this Agreement, and binds the beneficiaries, heirs, assigns, and successors in interest of SUBDIVIDER.
Final Map No. 8393
Subdivision Improvement Agreement page 11 of 15
20. Exhibits
The following are exhibits to this Agreement:
Exhibit A: Final Map No. 8393
Exhibit B: Engineering Plans for PX1800046
21. Incorporation By Reference
The following documents are incorporated into this Agreement by reference:
CITY Permits:
a) Land Use PLN17095; b) Grading GR1700136; (c) Building Permits related to map on file with Accela; d) Tract Map 8393; e) Private infrastructure permit PZ1800081; and f) Public Infrastructure Permit:
PX1800046.
City Engineer’s Estimate of the Cost of Improvements: Pacific Engineering & Construction, Inc.’s Engineer’s Estimate by Alan Mark Waldman, PE, dated September 4, 2023
Insurer: _________________________________________________ Surety: _________________________________________________
22. Constructive Notice
This Agreement shall be filed for recordation in the Official Records of Alameda County within ten (10) business days following execution by the CITY.
23. Effective Date
This Agreement shall be effective on the Effective Date.
24. Miscellaneous
A. Counterparts. This Agreement may be executed in any number of counterparts (including by fax, PDF or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
B. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The parties agree that all actions or proceedings arising directly or indirectly under this Agreement shall be litigated in courts within the County of Alameda, State of California.
C. Integration. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, agreements, warranties or representations relating to such subject matter are superseded in total by this Agreement. No prior drafts of this Agreement or changes from those drafts to the executed
Final Map No. 8393
Subdivision Improvement Agreement page 12 of 15
version of this Agreement shall be introduced as evidence in any litigation or other dispute resolution proceeding by either party or any other person, and no court or other body shall consider those drafts in interpreting this Agreement.
D. Further Assurances. The CITY and the SUBDIVIDER shall execute and deliver all documents, amendments, agreements and instruments reasonably necessary or reasonably required in furtherance of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Final Map No. 8393
Subdivision Improvement Agreement page 13 of 15
IN WITNESS WHEREOF, the CITY and SUBDIVIDER have each caused this Agreement to be duly executed on its behalf as of the Effective Date.
CITY*:
AUTHORIZED BY RESOLUTION NO. CITY OF OAKLAND, a municipal C.M.S. corporation
APPROVED AS TO FORM:
_______________________________ By: _______________________________ OFFICE OF THE CITY ATTORNEY JESTIN D. JOHNSON
CITY ADMINISTRATOR
SUBDIVIDER*:
OAKMEDA MANAGEMENT, LLC
By: _______________________________
Name: _________________
Title: Authorized Signatory
*Notarized acknowledgment required.
Final Map No. 8393
Subdivision Improvement Agreement page 14 of 15
Exhibit A
Final Map No. 8393
Final Map No. 8393
Subdivision Improvement Agreement page 15 of 15
Exhibit B
Engineering Plans for PX1800046