DEV2203.supp.jd
CITY OF SIMI VALLEY
MEMORANDUM
February 28, 2022
TO: City Council
FROM: Office of the City Manager
SUBJECT: ADOPTION OF A RESOLUTION ACCEPTING THE FINAL
MAP, SUBDIVISION IMPROVEMENT AGREEMENT, AND
APPROVING SECURITIES FOR TRACT NO. 6019, LOCATED AT
2145 CALLAHAN AVENUE
Subsequent to the preparation of this staff report, the Subdivision Improvement Agreement (Exhibit 1) has been signed by the developer, and Exhibit A to the Subdivision Improvement Agreement has been amended.
____________________________________
Ronald K. Fuchiwaki
Public Works Director
Prepared by: Steve Benjamin, Senior Engineer
SUPPLEMENTAL
AGENDA ITEM NO.
Consent (7)
CITY OF SIMI VALLEY
SUBDIVISION
IMPROVEMENT AGREEMENT
This Agreem
ent is entered into by and between Vigorous W Development Co. LTD, a general corporation and existing under the laws of the State of California and authorized and licensed to transact business in the State of California (“Subdivider”) and the City of Simi Valley, a municipal corporation organized and existing under the laws of the State of California (“City”).
RECITALS
WHEREAS,
Subdivider has prepared and filed a subdivision map known as Tract Map No. 6019 with the City for approval and subsequent recordation at the County of Ventura; and
WHEREAS,
as a condition of approval of the subdivision map, Subdivider is required to offer for dedication those parcels or easements intended for streets, highways, utilities, and other public use purposes, and also to construct and install certain improvements thereon; and
WHEREAS,
Subdivider has irrevocably offered for dedication to City for public use the streets, easements, and other improvements shown on the subdivision map; and
WHEREAS,
City desires to accept the streets, easements, and other public improvements shown on the map upon completion of the improvements; and
WHEREAS,
as a condition precedent to recordation of the subdivision map, Subdivider is required to enter into this secured Agreement to install and complete, at its sole expense, all improvement work (“Improvements”) required of the Subdivider for the subdivision by the City; and
WHEREAS,
the total cost of such Improvements has been estimated by the City Engineer to be approximately $202,800.00;
NOW, THE
REFORE, IT IS AGREED by and between the parties as follows:
EXHIBIT 1
RES. NO. 2022-10
1. CONSTRUCTION OF IMPROVEMENTS
At its sole cost and expense, Subdivider shall construct and install all Improvements accor
ding to the conditions of the approved tentative map as set forth in Certificate of Administrative Approval dated ________________, Planning Com mission Resolution No. ____________ or City Council Resolution No. __ 2020-01___ (if applicable), incorporated herein by reference as though fully set forth, and the City approved improvement plans, and City’s standards and specifications on file with City Engineer. The improvement plans, standards and specifications for Tract Map No. 6019 are hereby incorporated by reference as though set forth in full (“Improvement Plans”).
Subdivi
der shall, at Subdivider’s sole cost and expense, obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices and pay all fees in accordance with adopted City fee schedules, and pay all taxes as required by law.
2. CHANGES IN PLANS OR IMPROVEMENTS
All of
the Improvements shall be constructed in accordance with the Improvement Plans referred to in Section 1 above, and in accordance with all applicable Conditions of Approval and City, State, and Federal standards and regulations, as approved by the City Engineer. The parties agree that certain corrections and revisions to the Improvement Plans may be necessary to comply with applicable City, State, and Federal standards and regulations, as determined by the City Engineer. Such corrections and revisions shall be accomplished through a written change order procedure.
Subdivi
der shall perform all changes or alterations in the construction and installation of said Improvements to conform with any plan revisions, all in accordance with the Improvement Plans, Conditions of Approval, and any subsequent written change orders as approved by the City Engineer.
3. SURETY
Subdivi
der has furnished the City securities, as referenced in the attached Exhibit “A” which have been accepted by the City, assuring Faithful Performance, Payment for Labor and Materials, for all Improvements associated with this Agreement, including the maintenance and warranty obligations, required by Section 7. In addition, pursuant to Government Code §§ 66441 and 66495 -66498, Subdivider also shall furnish and set subdivision and lot monuments, and assure the faithful performance of the construction of those monuments.
Said sec
urities are attached herein as Exhibit “A” and included herein.
RES. NO. 2022-10
2 4. TIME FOR COMMENCEMENT AND COMPLETION
Time i
s of the essence for construction of the Improvements. Subdivider shall commence the construction and installation of the Improvements within 30 days from the date of approval of this Agreement (unless an alternative commencement time is approved by the City), and shall diligently proceed to complete the construction of all of the Improvements including those improvement corrections identified by the City as final punch list correction items. Failure of the Subdivider to complete the construction of and any corrections for all Improvements within (24) months from the date of approval of this Agreement, absent an approved extension by the City Engineer as delineated in Section 5, is a breach of this Agreement, subject to the notice requirements in Section 17, 18 and 20.
5. EXTENSION OF AGREEMENT
Subdivi
der may request an extension of time to complete Improvements required by this Agreement. Any request for an extension shall be in writing to the City. Oral requests for extension are not be permitted. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle Subdivider to an extension. Upon good cause shown, the City Engineer may extend the time to complete the Improvements up to an additional year.
Any ext
ensions granted by the City Engineer shall be in writing as an amendment to this Agreement, and Subdivider is hereby put on notice and agrees that additional and revised fees may be charged and new or updated improvement standards may be imposed, as a condition of any extension granted by the City Engineer under this section. Any extension granted by the City shall not relieve the sureties’ liability on the bond to secure the faithful performance of this Agreement, including providing site erosion control, clean- up, and security during any work stoppage.
Failur
e of the owner to extend this Agreement, or the City to act before the expiration of the owner initiated extension requirements as stipulated herein, does not constitute termination or voiding of the agreement. Upon such failure by the Subdivider to extend the agreement the City may opt to pursue a breach of the agreement by the Subdivider as stipulated in Sections 17 & 18,
6. INSPECTION AND ACCEPTANCE OF IMPROVEMENTS
The Ci
ty Engineer, or duly authorized representative, upon written request of Subdivider that the work is entirely completed, shall inspect the Improvements constructed and installed by Subdivider, and, if the Improvements are determined to be in accordanc e with applicable City standards, Conditions of Approval, and the project’s Improvement Plans, the City Engineer shall recommend to the City Council to accept said Improvements.
RES. NO. 2022-10
3 7. MAINTENANCE OF IMPROVEMENTS
Subdivi
der shall maintain all Improvements provided for in this Agreement, and those which may be further provided for in the final subdivision map, the conditions of approval, or as the result of written change orders, until all the Improvements are accepted by the City Council.
8. WARRANTY OF IMPROVEMENTS
Subdivi
der shall guarantee the Improvements required by this Agreement for a period of one year following acceptance of those Improvements by the City Council against any defective work completed, labor performed, and/or defective materials furnished. A warranty security in an amount of a least ten percent (10%) of the total estimated cost of the Improvements shall be posted guaranteeing the replacement or repair of any defects in the Improvements during that period. However, the amount of the warranty security shall not limit the Subdivider’s or Surety’s obligations under this Section.
In the ev
ent any Improvements are determined to be defective by the City within the warranty period, Subdivider shall, without delay and without any cost to City, repair, replace, or reconstruct any such defective work or material upon written notice by City. Should Subdivider or Surety fail to act promptly or in accordance with this requirement, or should exigent circumstances exist that require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Subdivider or Surety shall pay to City the actual cost of such repairs, plus fifteen percent (15%) as overhead and administrative costs reimbursement to the City.
9. TITLE TO IMPROVEMENTS
Titl
e to, and ownership of, all of the public Improvements constructed by Subdivider shall vest absolutely in City only upon acceptance of the public Improvements by the City Council. The entire risk of loss to the Improvements shall be with Subdivider prior to and until acceptance by the City Council and completion of the warranty period as described in section 8. Subdivider shall hold harmless City, its elected officials and appointed boards, commissions, officers, agents or employees for any accident, loss or damage, happening or occurrence to the Improvements prior to City Council acceptance of the Improvements and completion of the aforementioned warranty period.
RES. NO. 2022-10
4 10. RECORD DRAWINGS
Subdivi
der shall keep accurate records on a set of project blue line prints of all additions and deletions to the work, change orders, and of all changes in location, elevation and character of the work not otherwise shown or noted on the Improvement Plans. In conjunction with the Subdivider’s written request for City’s acceptance of the work, Subdivider shall deliver to the City Engineer for approval and retention, a set of record (As Built) drawings incorporating these changes and showing all the Improvements that were actually installed.
The drawings shall be on 4 mil thick Mylar and will become City property.
11. COSTS AND ATTORNEY FEES
In the ev
ent that Subdivider fails to perform any obligation hereunder, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorneys’ fees.
12. BINDING ON SUCCESSORS IN INTEREST
All pr
ovisions of this Agreement shall be binding on the parties and their executors, administrators, assigns and successors in interest.
13. NO ASSIGNMENT WITHOUT CONSENT
Subdivi
der shall not have the right to assign or transfer this Agreement, or any part hereof, without the prior written consent of City.
14. SUBDIVIDER NOT AGENT OF CITY
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. Nothing contained in this Agreement shall be construed to create a relationship of employer -employee, master-servant, or principal -agent, between Subdivider and City.
15. HOLD HARMLESS AND INDEMNITY AGREEMENT
Subdivi
der shall indemnify and hold City, its elected officials, officers, employees, agents and representatives harmless from any liability for damage or claims for personal injury, including death, as well as from claims for property damage, which may arise from Subdivider or Subdivider’s contractors, subcontractors, agents or employees operating under this Agreement, whether such operations be by Subdivider or by any of Subdivider’s contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as an agent for, Subdivider or any of Subdivider’s contractors or subcontractors.
Subdivider agrees to and shall defend City and its elected officials, officers, employees, agents and representatives from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of any of the work, acts and obligations of RES. NO. 2022-10
5 Subdivider referred to in this Agreement. The duty to defend includes all payment of court costs, attorneys’ fees, expert witness fees, investigation costs, claims adjustment costs, and any other costs related to the litigation.
The Ci
ty does not, and shall not, waive any rights against Subdivider which it may have by reason of the above defense hold harmless/indemnity provision because of the acceptance by City, or the deposit of certificates of insurance with City by Subdivider, of any of the insurance policies described in Section 16.
The abov
e defense hold harmless/indemnity obligation by Subdivider shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the work, acts, and obligations of the Subdivider referred to in the paragraph, regardless of whether or not City has prepared, supplied, or approved of plans and/or specifications for the subdivision, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
Subdivi
der hereby indemnifies City and agrees to hold City harmless from all loss, damage, and expense incurred by City as a result of the absence of adequate easements to operate, maintain, repair, renew, and replace the water, wastewater, and/or storm drain systems, as applicable.
16. SUBDIVIDER’S INSURANCE
Subdivi
der shall not commence work under this Agreement until Subdivider has obtained the following insurance, and the coverages and certificates have been approved by the City, through the Risk Manager, as to form, amount, and carrier, as set forth below:
A. Contrac
tual liability insurance for liability assumed by Subdivider pursuant to this Agreement with City. The minimum limits of liability coverage for this insurance shall be:
1. General
Liability Insurance not less than the following amounts:
a. Resident
ial Land Division with 4 or fewer lots/units involving minor public improvements - $2,000,000 CSL.
b. Subdivision with 5 to 19 lots/units involving major public improvements - $3,000,000 CSL.
c. Subdivision with 20 to 39 lots/units involving major public improvements - $4,000,000 CSL.
d. Subdivision with 40 or more lots/units involving major public improvements - $5,000,000 CSL.
RES. NO. 2022-10
6 2. Autom
obile Comprehensive Liability Insurance not less than the following amounts:
a. Resident
ial Land Division with 4 or fewer lots/units involving minor public improvements - $1,000,000 CSL.
b. Subdivision with 5 to 19 lots/units involving major public improvements - $2,000,000 CSL.
c. Subdivision with 20 to 39 lots/units involving major public improvements - $3,000,000 CSL.
d. Subdivision with 40 or more lots/units involving major public improvements - $5,000,000 CSL
B. Work
ers’ Compensation Insurance - Statutory.
Subdivi
der shall provide a separate, additional insured endorsement for the Subdivider’s general liability insurance policies specifically naming the City, it officers, elected officials and employees, as additional insureds for both operations and completed operations.
Evidence of additional insureds must be presented by a separate endorsement page in the policy.
The m
inimum insurance coverage required by this Agreement shall not be construed to relieve Subdivider for liability in excess of such coverage, nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or other in law.
The wr
itten notice of cancellation to the City shall be 30 days. Ten days for non- payment of premium only is permitted. The following language under the cancellation section of the insurance certificates, or any such similar language, shall be deleted: “endeavor to” and “failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives.”
Said ins
urance policies shall be maintained during the life of this Agreement, and any amendments and/or extensions thereto.
17. NOTICE OF BREACH AND DEFAULT
If Sub
divider refuses or fails to complete the Improvements, or any severable part, in accordance with the requirements of this Agreement, or with the diligence required in Section 4, or if the Subdivider should be adjudged bankrupt, or if Subdivider should make a general assignment for the benefit of Subdivider’s creditors, or if a receiver should be appointed in the event of Subdivider’s insolvency, or if Subdivider or any of Subdivider’s contractors, subcontractors, agents, or employees should violate any of the provisions of this Agreement, City may serve written notice of breach and default upon Subdivider and Subdivider’s surety.
RES. NO. 2022-10
7 18. BREACH OF AGREEMENT – PERFORMANCE BY SURETY OR CITY In the ev
ent of any such notice in accordance with Section 17, Subdivider’s surety shall have the duty to take over and complete the work and the improvements herein specified.
This duty includes providing and maintaining erosion control, clean -up, and security of the improvement site during any work stoppage. The surety shall, within five days of receipt of the Notice of Breach advise the City of its intention to take over performance of the Agreement, with a contractor acceptable to the City. If the surety does not commence performance of the Agreement within 20 days, the City may take over the work and pursue the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of the Subdivider, and Subdivider’s surety shall also be liable to City for any excess cost or damages occasioned by City. In such event, City, without liability for doing so, 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 therefore. The rights of City provided in this section are in addition to and cumulative to any and all other rights of City as provided by law and any election by City to proceed pursuant to the provisions of Sections 17 or 18, and shall not be construed as being in lieu of any other such rights provided by law.
19. JURISDICTION
This A
greement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. Jurisdiction of all disputes over the terms of this Agreement shall be in the County of Ventura, State of California.
20. EFFECT OF WAIVER
City’s
waiver of breach of any one term, covenant, or other provision of this Agreement is not a waiver of breach of any other term, nor subsequent breach of the term or provision waived.
21. CAPTIONS
The ca
ptions or headings in this Agreement are for convenience only and in no other way define, limit, or describe the scope or intent of any provision, paragraph, or section of the Agreement.
RES. NO. 2022-10
8 22. AUTHORIZATION
Each part
y has expressly authorized the execution of this Agreement on its behalf and bind the party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers, and any others who may claim through it to this Agreement.
23. PARTIAL INVALIDITY
If any pr
ovision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
24. NOTICES
Unless ot
herwise provided, all notices herein required shall be in writing, and delivered in person or sent by certified, return receipt mail, postage prepaid. Notices required to be given to City shall be addressed as follows:
Public W
orks Director
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, California 93063
Notices
required to be given to Subdivider shall be addressed as follows:
Vigorous
W Development Co. LTD
17114 Ridge Par Drive
Hacienda Heights, CA 9174
It is prov
ided that any party may change its address by notice in writing to the other party and thereafter notices shall be address and transmitted to the new address.
25. AMENDMENTS
The term
s and conditions of this Agreement may be amended only by written consent of Subdivider and the City Engineer.
RES. NO. 2022-10
9 RES. NO. 2022-10
10 RES. NO. 2022-10
11 RES. NO. 2022-10
12