1 APPROVED AS TO FORM AND LEGALITY
________________________
CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
RESOLUTION NO. __________ C.M.S. _________________________________________________________________________________________________________
A RESOLUTION AUTHORIZING THE CITY ADMINISTRATOR TO
ENTER INTO A SUBDIVISION IMPROVEMENT AGREEMENT WITH
KENILWORTH PROPERTY, LLC, FOR DEFERRED CONSTRUCTION
OF PUBLIC INFRASTRUCTURE IMPROVEMENTS AS A CONDITION
TO PARCEL MAP APPROVAL FOR PARCEL MAP NO. 8228 LOCATED
AT KENILWORTH ROAD; AND MAKING APPROPRIATE
CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS
WHEREAS, Kenilworth Property LLC (“Subdivider”), is the owner of the real property at Kenilworth Road and described in a Grant Deed recorded June 28, 2023, Series No. 2023- 073316 and a Quitclaim Deed recorded December 13, 2024, Series No. 2024-152314 by the Alameda County Clerk-Recorder, commonly known as Kenilworth Road hereto and incorporated herein (“Property”); and
WHEREAS, the Subdivider prepared for the City of Oakland (“City”) Planning Commission consideration the Kenilworth Road Development project that provides for the development of seven (7) new single-family homes and the extension of Kenilworth Road and submitted development applications for: a Planned Unit Development Permit (PUD04195) for the entire project; a Tentative Parcel Map (PM8228), a Creek Permit (CP04-068), and Environmental Review Permit (ER040006) ("Project"); and WHEREAS, as part of the Project, the Subdivider specifically applied to the City for a Tentative Parcel Map No. 8228 to subdivide said platted land, which proposed:
Subdivision of an existing lot into four (4) parcels and one (1) remainder parcel; and Construction of seven (7) single-family homes, including parking, landscaping, and postconstruction stormwater management facilities, reflecting development on the four (4) parcels and one (1) remainder parcel to be created under the Parcel Map, as well as two adjacent parcels that will also be developed upon the completion of Kenilworth Road; and
Right-of-Way Dedication and roadway improvements, including widening and paving the unpaved portion of Kenilworth Road; and
Wildland fire protection; and
Geotechnical stabilization of the site and of upslope properties; and 2 Enhancement and protection of a small on-site wetland and drainage course, including establishment of a creek boundary deed restriction, and protection of an off-site creek; and
Abandonment of an unused sewer reserve; and
WHEREAS, on November 15, 2006, the City Planning Commission approved the Tentative Parcel Map No. 8228 and the land use entitlements (PUD04195) for the Project, and also certified the Focused Environmental Impact Report (“EIR”) for the Project; and WHEREAS, on March 13, 2017, the City Planning Commission extended the planning entitlements (PUD04195) for the Project; and
WHEREAS, on October 25, 2017, the City Planning and Building Department extended the Planning entitlements (DET170117) for the Project, provided that the Subdivider submit their application for final map prior to July 9, 2022, which applicant subsequently did timely submit; and
WHEREAS, the Subdivider has employed a competent design professional, who is licensed by the State of California to practice civil engineering, to prepare plans and specifications for the construction of required surface and subsurface public infrastructure improvements in the public right of way; and
WHEREAS, the City Engineer has approved infrastructure permit number PX1700020 and the Subdivider’s plans and specifications for construction of the required public infrastructure improvements and infrastructure within private property common to subdivided lots known as private-public improvements; and
WHEREAS, pursuant to Government Code section 66499 et seq. and Oakland Municipal Code section 16.24.060, and as required by the Subdivision Improvement Agreement (“SIA”), attached hereto as Exhibit A, the Subdivider has deposited adequate security in the form of surety bonds to guarantee the construction of the deferred public infrastructure improvements identified in the SIA, thereby allowing the parcel map to be recorded prior to completion of the improvements; and
WHEREAS, with authorization from the City Council, the City Administrator shall enter into a SIA with the Subdivider, assuring the timely construction, unconditional warrantee, and prescribed maintenance of all required public infrastructure improvements; and WHEREAS, through a separate companion Resolution, staff is seeking approval for the City to grant a conditional and revocable major encroachment permit (ENMJ22054) such that privately owned and maintained retaining walls, pressurized sanitary sewer systems, storm drain systems, bioretention planters, and irrigation systems encroach into the public right-of-way along Kenilworth Road; the encroachment limits are delineated within the Indenture Agreement attached hereto as Exhibit B (Indenture Agreement); and WHEREAS, through a separate companion Resolution, staff is seeking conditional approval of Parcel Map No. 8228, delineated diagrammatically in Exhibit C (Parcel Map No. 8228) attached hereto and incorporated herein; and
3 WHEREAS, this action is in compliance with the requirements of the California Environmental Quality Act (CEQA) as determined by the City Planning Commission’s approval of the Focused EIR; now, therefore, be it
RESOLVED: That the City Administrator or designee is hereby authorized to enter into an SIA with Kenilworth Property LLC for deferred construction of public infrastructure improvements as a condition to Parcel Map approval for Parcel Map No. 8228; and be it FURTHER RESOLVED: That said SIA shall include a requirement that a steps-ongrade pathway having a minimum 10-foot width to connect Kenilworth Road to Devon Way be complete prior to the issuance of any building permit for the construction of residential facilities; and be it
FURTHER RESOLVED: That all documents related to this Resolution shall be reviewed and approved by the City Attorney’s Office prior to execution; and be it FURTHER RESOLVED: That the City Engineer is authorized to cause the fully executed SIA to be filed concurrently with the fully endorsed Parcel Map No. 8228 for recordation by the Alameda County Clerk-Recorder; and be it FURTHER RESOLVED: That the City Council determines this action is in compliance with the requirements of CEQA; and be it
FURTHER RESOLVED: That this Resolution shall be effective upon its adoption by a sufficient affirmative vote of the elected members of the City Council, as provided in the City Charter.
IN COUNCIL, OAKLAND, CALIFORNIA, PASSED BY THE FOLLOWING VOTE:
PASSED BY THE FOLLOWING VOTE:
AYES - BROWN, FIFE, GALLO, HOUSTON, RAMACHANDRAN, UNGER, WANG, AND
PRESIDENT JENKINS
NOES –
ABSENT –
ABSTENTION –
ATTEST:
ASHA REED
City Clerk and Clerk of the Council of the
City of Oakland, California
Exhibit A, Subdivision Improvement Agreement
Exhibit B, Indenture Agreement for Major Encroachment (ENMJ22054) Exhibit C, Parcel Map No. 8228
3486486v1_mcb
Parcel Map No. 8228
Subdivision Improvement Agreement page 1 of 16
Exhibit A
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Oakland
Department of Transportation
Dalziel Administration Building
250 Frank H. Ogawa Plaza – 4th 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 Kenilworth Road
Parcel Map No. 8228
This SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”), dated as of _________________, 2026 (“Effective Date”), is entered into by and between the City of Oakland, a California municipal corporation (“CITY”), and Kenilworth Property, LLC, a California limited liability company (“SUBDIVIDER”), with reference to the following facts and circumstances:
RECITALS
A. SUBDIVIDER has presented a Parcel Map for the development to the City, identified as Parcel Map No. 8228, of a proposed subdivision consisting of four (4) new singlefamily residential lots and a remainder parcel located within the corporate limits of the CITY, which are identified by the Alameda County Assessor as parcel number APNs 048H-7615-007-06 and by the CITY as Kenilworth Road, as one component of the approved Planned Unit Development PUD-04195. The Parcel Map is attached hereto as Exhibit A. The Planned Unit Development additionally covers parcel numbers APNs 048H-7615-6-5 and 048H-7615-3-5.
B. The Parcel 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 parcel map of the subdivision previously approved by the City Planning Commission on November 15, 2006, effective July 9, 2010 after withdrawal of an appeal, and subsequently extended by Planning Commission action on March 1, 2017, and submitted to the City prior to the deadline for submittal of July 9, 2022.
Parcel Map No. 8228
Subdivision Improvement Agreement page 2 of 16
C. As a condition precedent to the CITY’s approval of the proposed Parcel Map, the CITY requires the irrevocable dedication of public right-of-way and public easements shown on the proposed Parcel Map. In addition, the CITY requires the construction of public infrastructure improvements to be located off-site in the CITY right-of-way and on-site in dedicated right-ofway that customarily include, but are not limited to, grading, paving, striping and lettering, curbs, gutters and sidewalks, trees, landscaping and irrigation, retaining walls, storm drains and sanitary sewers, street name and public transportation signs, survey monuments, electricity, communication, water, and natural gas utility mains and branch piping and wiring, fire hydrants, street light electroliers, traffic control and curb parking signs, signals and meters, and all appurtenances thereto (collectively, the “Public Infrastructure Improvements”).
D. In furtherance of construction of the Public Infrastructure Improvements, on July 22, 2025 the City issued PX-Permit No. PX1700020 authorizing the construction of the Public Infrastructure Improvements required prior to approval of the Parcel Map. The Parties, or predecessors thereto, also entered into an “Agreement for the Private Construction of Infrastructure Improvements” on September 18, 2023 recorded with the Alameda County Recorder’s Office as series number 2023081512 (“2023 Agreement”). The 2023 Agreement states that the infrastructure improvements and works covered by this Agreement comprises the work described in Planned Unit Development Permit PUD-04195 and PX1700020 for the development of Kenilworth Road, all in accordance with the PX-Permit Set of Plans dated July 18, 2025.
E. SUBDIVIDER has asked that the applicable required Public Infrastructure Improvements shown on the construction plans accompanying permit number PX1700020 be accepted for ownership and permanent maintenance by the CITY, local public utility companies, Homeowners Association (HOA), and Geologic Hazard Abatement District (GHAD) as specified in the “Kenilworth Development Ownership, Funding Sources and Maintenance Responsibilities” (Exhibit B). Construction Plans accompanying permit number PX1700020 are included in Exhibit C.
F. Construction of the required Public Infrastructure Improvements, however, has not completed nor has it been accepted by the CITY. Consequently, and in consideration of the approval of the proposed Parcel Map and acceptance of the irrevocable offers of dedication of public right-of-way and acceptance of the ownership and permanent maintenance of the required Public Infrastructure Improvements to be owned and operated by the CITY, the parties desire to establish an Agreement binding the SUBDIVIDER to complete the required Public Infrastructure 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 Parcel Map No. 8228
Parcel Map No. 8228
Subdivision Improvement Agreement page 3 of 16
Approval of the Parcel Map No. 8228 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 Public Infrastructure Improvements in strict accordance with all permits, specifications, plans and applicable CITY standards and performance criteria as specified in Exhibit C and set forth below in Section 3, Special Conditions.
3. Special Conditions
The 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 Chapter 16.16 – Design Standards and in Standard Details for Public Works Construction and Standard Specifications for Public Works Construction, current editions.
B. The Public Infrastructure Improvements shall conform to the requirements of the California Fire Code and the California Wildland-Urban Interface Code. As an alternative means of egress for occupants with Kenilworth property frontages, the completion of a steps-on-grade pathway having a minimum 10-foot width to connect Kenilworth Road to Devon Way must be completed prior to the issuance of any building permit for the construction of residential facilities.
C. The time duration for the completion of the 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.
D. 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, as laid out in the Oakland City Planning Commission Staff Report dated March 1, 2017, and the Oakland Municipal Code, including section 12.12.110. No work shall be performed on Saturdays or Sundays or holidays nor commence before 8:00 am local time nor be performed after 5:00 pm local time without the written authorization of the City Engineer.
E. Performance standards for the construction of the Public Infrastructure Improvements shall comply with the requirements of Oakland Municipal Code 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 Water 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 Parcel Map No. 8228
Subdivision Improvement Agreement page 4 of 16
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 construction of the required Public Infrastructure Improvements shown in Exhibit C shall be completed by the SUBDIVIDER within two (2) years of the Effective Date of this Agreement. Construction of the Public Infrastructure Improvements 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 Certificate 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 Attorney are provided to secure the SUBDIVIDER’s performance, the extension shall be void.
5. Acceptance of Dedications and Ownership of Public Infrastructure Improvements Unless otherwise specified in the project Conditions of Approval and the “Kenilworth Development Ownership, Funding Sources and Maintenance Responsibilities” (Exhibit B), upon final approval of the Public Infrastructure Improvement permit and unconditional issuance of a Certificate of Completion by the City Engineer, all improvements required by this Agreement shall become the sole property of the CITY. The CITY will subsequently accept the permanent maintenance of these improvements as set forth below in Sections 7, Maintenance of Public Infrastructure Improvements, and Section 8, Guarantee of Workmanship and Warranty of Equipment, Materials, and Expertise.
6. Responsibility for Dedications and 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 and reasonably protect the public from said unsafe conditions. Warning to and protection of the public as to conditions related to Subdivider’s installation of improvements in the Parcel Map No. 8228
Subdivision Improvement Agreement page 5 of 16
public-right-of way 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 one (1) year has elapsed following the unconditional issuance of the Certificate of Completion, the SUBDIVIDER shall maintain the construction of the 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 Expertise Until one (1) year has elapsed following the unconditional issuance of the Certificate of Completion, the SUBDIVIDER warrants that the 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 C and set forth above in Section 3, Special Conditions. The 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 as specified in Exhibit C and set forth above in Section 3, Special Conditions.
If at any time before the expiration of the guarantee and warranty 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.
9. Inspection of Construction, Equipment, and Materials Inspection of the construction, equipment and materials, or approval of the construction and 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 agencies 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.
Parcel Map No. 8228
Subdivision Improvement Agreement page 6 of 16
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. A public hearing will be held on any proposed reversion in accordance with Government Code Section 66499.15
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.
13. Security
The 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 Two-Hundred and Seventy-Six Thousand Dollars ($276,000.00), which is the full amount (one-hundred percent) of the City Engineer’s total estimated cost for constructing the required 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 One-Hundred and Thirty-Eight Thousand Dollars ($138,000.00), which is one-half (fifty percent) of the full amount of the City Engineer’s total estimated cost for constructing the required 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 the Certificate of Completion is issued for the Public Infrastructure Improvements, the following security shall be presented:
Maintenance Bond in a face amount not less than Sixty-Nine Thousand Dollars ($69,000.00), which is one-quarter (twenty-five percent) of the full amount of the City Engineer’s total estimated cost for constructing the required 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 one (1) year after the date Parcel Map No. 8228
Subdivision Improvement Agreement page 7 of 16
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.
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, the 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 one (1) year following unconditional issuance of the Certificate of Completion) of the Public Infrastructure Improvements, except for injuries and damages directly caused by the negligence of the City Parties or for work performed by the City of Oakland after SUBDIVIDER has completed its one (1) year maintenance period.
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.
The 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 negligence of the City Parties. This Defense, Indemnity, and Hold Harmless section shall survive the termination of this Agreement.
B. Within 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 Parcel Map No. 8228
Subdivision Improvement Agreement page 8 of 16
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.
16. Insurance Required
The 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 the SUBDIVIDER and his agents, representatives, 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 Agreement and thereafter as required by that code.
Parcel Map No. 8228
Subdivision Improvement Agreement page 9 of 16
4. Professional Liability/Errors/Omissions insurance with limits not less than $1,000,000.00.
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. The 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. The 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 the 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 Parcel Map No. 8228
Subdivision Improvement Agreement page 10 of 16
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.
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
The SUBDIVIDER shall furnish the CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. The 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 time. 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
The 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
The 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 Parcel Map No. 8228, 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.
Parcel Map No. 8228
Subdivision Improvement Agreement page 11 of 16
20. Exhibits
The following documents are exhibits to this Agreement:
Exhibit A: Parcel Map No. 8228
Exhibit B: Development Ownership Funding Source and Maintenance Responsibilities Exhibit C: Engineering Plans for PX1700020
21. Incorporation By Reference
The following documents are incorporated into this Agreement by reference:
CITY Permits:
a) Creek Protection: CP04068, b) Land Use: PUD04195, ER040006, V06484, DET170117, c) Grading:
GR1700082, GR2100104, d) Building Permits related to map on file with Accela: B1702721, B2302169, e) Public Infrastructure Permit: PX1700020, f) Parcel Map: 8228, and g) Encroachment Permit:
ENMJ22054.
Agreement for the Private Construction of Infrastructure Improvements recorded July 18, 2023 Series No. 2023081512
City Engineer’s Estimate of the Cost of Improvements: “Engineer’s Estimate for Bonding the Street Improvements for Kenilworth Road, Oakland, California”, prepared by David J. Franco, Moran Engineering, dated April 21, 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 Parcel Map No. 8228
Subdivision Improvement Agreement page 12 of 16
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 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]
Parcel Map No. 8228
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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 ELIZABETH LAKE
INTERIM CITY ADMINISTRATOR
SUBDIVIDER*:
KENILWORTH PROPERTY, LLC
By: _______________________________
Name:
Title: Authorized Signatory
*Notarized acknowledgment required.
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Exhibit A
Parcel Map No. 8228, of a proposed subdivision at Kenilworth Road Parcel Map No. 8228
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Exhibit B
Development Ownership Funding Source and Maintenance Responsibilities Facility Maintenance
Entity
Maintenance
Funding Ownership
Sewer HOA HOA HOA
Homes Private Private Private
ROW Pavements,
Street Lighting,
Traffic Signage
City of Oakland City of Oakland City of Oakland
Retaining wall and
appurtenant
drainage
improvements
associated with
Kenilworth Road.
(GHAD-defined
“Developer
Constructed
Retaining Walls”)
HOA, then upon
formal acceptance,
GHAD
GHAD Assessment HOA and/or GHAD
Concrete-lined
drainage ditches,
storm drain inlets,
subdrain outlets,
and risers (GHADdefined “Storm
drain facilities
within the public
right of way and
private lots”)
HOA, then upon
formal acceptance,
GHAD
GHAD Assessment HOA and/or GHAD
Maintenance of
slopes for erosion
and geologic
hazard
abatement.
(GHAD-defined
“Slopes,
subsurface
drainage, and
subsurface
improvements”)
HOA, then upon
formal acceptance,
GHAD
GHAD Assessment HOA and/or GHAD
Parcel Map No. 8228
Subdivision Improvement Agreement page 16 of 16
Exhibit C
Engineering Plans for PX1700020
Exhibit B
Indenture Agreement for Major Encroachment (ENMJ22054)
See Companion Resolution:
A RESOLUTION GRANTING A CONDITIONAL AND REVOCABLE
MAJOR ENCROACHMENT PERMIT ENMJ22054 TO KENILWORTH
PROPERTY, LLC, TO ALLOW PRIVATELY OWNED AND
MAINTAINED RETAINING WALLS, PRESSURIZED SANITARY
SEWER SYSTEM, STORM DRAIN SYSTEM, BIORETENTION
PLANTERS, AND IRRIGATION SYSTEMS TO ENCROACH THE
PUBLIC RIGHT OF WAY BENEATH AND ADJACENT TO
KENILWORTH ROAD; AND ADOPTING APPROPRIATE CALIFORNIA
ENVIRONMENTAL QUALITY ACT FINDINGS
Exhibit C
Parcel Map No. 8228
See Companion Resolution:
A RESOLUTION CONDITIONALLY APPROVING PARCEL MAP
NO. 8228, LOCATED AT KENILWORTH ROAD, FOR A FOUR LOT
SUBDIVISION WITH A REMAINDER PARCEL, A RIGHT-OFWAY
DEDICATION AND A SEWER RESERVE ABANDONMENT,
FOR PROPERTY OWNERS KENILWORTH PROPERTY, LLC;
AND ADOPTING APPROPRIATE CALIFORNIA
ENVIRONMENTAL QUALITY ACT FINDINGS