DEV2211.SR.JD
CITY OF SIMI VALLEY
MEMORANDUM
J
une 13, 2022
TO
: City Council
F
ROM: Department of Public Works
S
UBJECT: ADOPTION OF A RESOLUTION ACCEPTING THE FINAL
MAP, SUBDIVISION IMPROVEMENT AGREEMENT, AND
APPROVING SECURITIES FOR TRACT NO. 5734 -1, LOCATED AT
3301 LOST CANYONS DRIVE
STAFF RECOMMENDATION
I
t is recommended that the City Council adopt Resolution No. 2022-33 (page 4) accepting the Final Map, Subdivision Improvement Agreement ( page 6), and approving securities for Tract No. 5734-1, located at 3301 Lost Canyons Drive.
BACKGROUND AND OVERVIEW
The
requested action provides City Council approval for the recording of the Final Map and assures construction of public improvements. Tract No. 5734-1 (Attachment A - Location Map, page 3) is comprised of a 681.63- acre residential gated community on the site located west of Tapo Canyon Road and north of Lost Canyons Drive (3301 Lost Canyons Drive) . The owner of Tract No. 5734 -1 is Newport Pacific Land Company. Tentative Tract No. 5734 was approved by the City Council on August 12, 2013, by Resolution No. 2013-1.
FINDINGS AND ALTERNATIVES
T
he City Engineer finds that the agreements and improvement securities are acceptable and conform to the Subdivision Map Act and local ordinances.
T
he following alternatives have been identified for City Council consideration:
1. A
dopt Resolution No. 2022-33 accepting the Final Map, Subdivision Improvement Agreement, and approving securities for Tract No. 5734-1 , located at 3301 Lost Canyons Drive;
2. Not
adopt the attached resolution and provide staff with other direction;
3. P
rovide staff with further direction.
S
taff recommends Alternative No. 1.
AGENDA ITEM NO.
Consent (12)
C2213.SR.JD
SUGGESTED CITY COUNCIL MOTION
I move that the City Council adopt Resolution No. 2022- 33 accepting the Final Map , Subdivision Improvement Agreement, and approving securities for Tract No. 5734-1 , located at 3301 Lost Canyons Drive.
SUMMARY
Staff finds that Tract No. 5734-1 conforms to the Subdivision Map Act and local ordinances and therefore recommends that the City Council adopt Resolution No. 2022-33, accepting the Final Map, Subdivision Improvement Agreement , and approving securities for Tract No. 5734-1, located at 3301 Lost Canyons Drive.
____________________________________
Ronald K. Fuchiwaki
Public Works Director
Prepared by Brent Siemer, Deputy Public Works Director
INDEX Page
Attachment A – Location Map…………………………………….. . 3
Resolution No. 2022-33............................................................... 4 Exhibit 1 – Subdivision Improvement Agreement………… .......... 6
2 ATTACHMENT A
VICINITY MAP
TR 5734-1
LOCATION MAP
TRACT 5734-1
~ -!'lllil-
1 NOT TO SCALE
3 DEV 2211.RES.JD
RESOLUTION NO. 2022-33
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SIMI
VALLEY ACCEPTING THE FINAL MAP, SUBDIVISION
IMPROVEMENT AGREEMENT AND APPROVING SECURITIES
FOR TRACT NO. 5734-1, LOCATED AT 3301 LOST CANYONS
DRIVE
WHEREAS, the tentative map for Tract No. 5734 was approved by the City Council on August 12, 2013, by
Resolution No. 2013-1; and
WHEREAS, this approval was conditioned to require the developer to make certain public works improvements; and
WHEREAS, the City Engineer's Office has caused to be drawn up an agreement for construction of subdivision improvements (Subdivision Improvement Agreement), signed by the developer stating among other things, that constructi on of improvements will be completed within twenty-four (24) months of City Council approval, the form of which is attached as Exhibit 1 to the Staff Report accompanying this Resolution; and
WHEREAS, the City Engineer's Office has required the developer to post improvement securities for the faithful performance of said agreements, to guarantee the construction of the improvements, and to guarantee payment for provisions, materials, work and labor; and
WHEREAS, the City Engineer's Office has recommended that all improvement securities offered as security for labor and materials and for the faithful performance of the agreement be in an amount equal to one hundred percent (100%) of the estimated cost of the improvements or the act to be performed; and
WHEREAS, the City Engineer's Office has recommended that the amount of $1,222,530.00 for Tract No. 5734-1 is necessary for the guarantee and warranty of the work for a period of one year following the completion and acceptance thereof against any defective work or labor done, or defective materials furnished; and
WHEREAS, the developer has signed a letter addressed to the City Engineer stating that the developer's engineer will supervise the construction of work on this subdivision in accordance with the Business and Professions Code; and
WHEREAS, the City Engineer's office has required the developer to post a Monument Surety to guarantee payment for the cost of setting property monuments.
4 RES. NO. 2022-33
DEV2211.RES.JD
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SIMI VALLEY DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council approves the amounts recommended for all improvement securities offered as security for faithful performance and for labor and materials in the amount of 100% of the estimated cost of the improvements or of the act to be performed.
SECTION 2
. The City Council hereby approves the form of the Subdivision Improvement Agreement, and authorizes the execution thereof, as well as the associated securities agreements as approved by the City Manager and City Attorney or their designees.
SECTION 3. The City Council approves the F inal Map for Tract No. 5734-1 and directs that the Final Map be recorded, subject to execution of the finalized Subdivision Improvement Agreement and associated securities agreements.
SECTION 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the Office of the City Clerk.
PASSED and ADOPTED this 13th day of June 2022.
Attest:
Lucy Blanco, City Clerk Keith L. Mashburn, Mayor of the City of Simi Valley, California
Approved as to Form: Approved as to Content:
David L. Caceres, City Attorney Brian Paul Gabler, City Manager
Ronald K. Fuchiwaki
Public Works Director
5 DEV2211.SIA.JD
CI
TY OF SIMI VALLEY
SUB
DIVISION IMPROVEMENT AGREEMENT
Thi
s Agreement is entered into by and between NPLC Lost Canyons LLC, a Delaware limited liability company, 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”).
RECI
TALS
WH
EREAS, Subdivider has prepared and filed a subdivision map known as Tract Map No. 5734-1 with the City for approval and subsequent recordation at the County of Ventura; and
WH
EREAS, 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
WH
EREAS, Subdivider has irrevocably offered for dedication to City for public use the streets, easements, and other improvements shown on the subdivision map; and WH
EREAS, City desires to accept the streets, easements, and other public improvements shown on the map upon completion of the improvements; and WH
EREAS, 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
WH
EREAS, the total cost of such Improvements has been estimated by the City Engineer to be approximately $28,428,300.00;
NO
W, THEREFORE, IT IS AGREED by and between the parties as follows:
1. CONSTRUCTION OF IMPROVEMENTS
At its sole cost and expense, Subdivider shall construct and install all Improvements ac
cording 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. __ 2013-31___ (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. 5734-1 are hereby incorporated by reference as though set forth in full (“Improvement Plans”).
EXHIBIT 1
6 DEV2211.SIA.JD
S
ubdivider 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
A
ll 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.
S
ubdivider 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
S
ubdivider 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.
S
aid securities are attached herein as Exhibit “A” and included herein.
4. TIME FOR COMMENCEMENT AND COMPLETION
T
ime is 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. 7 DEV2211.SIA.JD
5. EXTENSION OF AGREEMENT
S
ubdivider 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.
A
ny extensions 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.
F
ailure 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
T
he City 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 accordance 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.
7. MAINTENANCE OF IMPROVEMENTS
S
ubdivider 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
S
ubdivider 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. 8 DEV2211.SIA.JD
I
n the event 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 b efore 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
T
itle 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.
10. RECORD DRAWINGS
S
ubdivider 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
I
n the event 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
A
ll provisions of this Agreement shall be binding on the parties and their executors, administrators, assigns and successors in interest.
13. NO ASSIGNMENT WITHOUT CONSENT
S
ubdivider shall not have the right to assign or transfer this Agreement, or any part hereof, without the prior written consent of City.
9 DEV2211.SIA.JD
14. SUBDIVIDER NOT AGENT OF CITY
N
either 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
S
ubdivider 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 fr om 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 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.
T
he City 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.
T
he above 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.
S
ubdivider 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.
10 DEV2211.SIA.JD
16. SUBDIVIDER’S INSURANCE
S
ubdivider 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. Contractual 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. G
eneral Liability Insurance not less than the following amounts:
a. R
esidential 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
2. A
utomobile Comprehensive Liability Insurance not less than the following amounts:
a. R
esidential 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. W
orkers’ Compensation Insurance - Statutory.
S
ubdivider 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 separ ate endorsement page in the policy.
T
he minimum 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.
T
he written 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 ins urance 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.”
11 DEV2211.SIA.JD
S aid insurance policies shall be maintained during the life of this Agreement, and any amendments and/or extensions thereto.
17. NOTICE OF BREACH AND DEFAULT
I
f Subdivider 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.
18. BREACH OF AGREEMENT – PERFORMANCE BY SURETY OR CITY I
n the event 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
T
his Agreement, 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
C
ity’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.
12 DEV2211.SIA.JD
21. CAPTIONS
T
he captions 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.
22. AUTHORIZATION
E
ach party 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
I
f any provision 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
U
nless otherwise 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:
P
ublic Works Director
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, California 93063
N
otices required to be given to Subdivider shall be addressed as follows:
N
ewport Pacific Land Company
100 Bayview Circle, Suite 240
Newport Beach, CA 92660
It
is provided 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
T
he terms and conditions of this Agreement may be amended only by written consent of Subdivider and the City Engineer.
13 DEV2211.SIA.JD
IN WITNESS WHEREOF, this Agreement entered into by the parties hereto shall become effective upon the date signed by the City Engineer.
S
UBDIVIDER – SIGNATURE MUST
BE ACKNOWLEDGED BY A NOTARY
PUBLIC
By: ___
_______________________
___
_______________________
Print Name
T
itle: __________________________
D
ate: __________________________
C
ITY OF SIMI VALLEY
___
_____________________________
Ronald K. Fuchiwaki
Da
te: ___________________________
APPR
OVED AS TO FORM:
Office of the City Attorney
___
___________________________
David L. Caceres, City Attorney
Date:
14 DEV2211.SIA.JD
EXHIBIT "A"
BOND TYPE AMOUNT ($) INSTITUTION BOND# or
RECEIPT #
Backbone Improvements
Streets Faithful Performance $ 3,193,500.00 Listed Below PB03010408392 Streets Labor and Materials $ 3,193,500.00 PB03010408392 Sewer Faithful Performance $ 904,600.00 PB03010408394 Sewer Labor and Materials $ 904,600.00 PB03010408394 Water Faithful Performance $ 2,602,600.00 PB03010408395 Water Labor and Materials $ 2,602,600.00 PB03010408395 Storm Drain Faithful Performance $ 1,081,700.00 PB03010408393 Storm Drain Labor and Materials $ 1,081,700.00 PB03010408393 Landscape Faithful Performance $ 75,000.00 PB03010408397 Landscape Labor and Materials $ 75,000.00 PB03010408397 In Tract Improvements
Sewer Faithful Performance $ 2,112,600.00 PB03010408399 Sewer Labor and Materials $ 2,112,600.00 PB03010408399 Water Faithful Performance $ 1,620,600.00 PB03010408398 Water Labor and Materials $ 1,620,600.00 PB03010408398 Monuments Faithful Performance $ 634,700.00 PB03010408529 Grading Faithful Performance $ 16,203,600.00 PB03010408396 Philadelphia Indemnity Insurance Company
15