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HomeMy WebLinkAboutResolution 70-93 RESOLUTION NO. 70-93 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AUTHORIZING EXECUTION OF AGREEMENT FOR ACQUISITION OF PUBLIC IMPROVEMENTS CAMINO REAL IMPROVEMENT PROJECT RESOLVED, by the City Council of the City of Atascadero, California, that certain agreement attached hereto as Exhibit "A" for acquisition of public improvements duly signed by the owners of property within the Camino Real Improvement Project Assessment District from whom the proposed acquisitions and improvements are to be made is hereby approved, and the City Manager is hereby authorized to sign said agreement on behalf of the City and the City Clerk shall attest his signature thereto. On motion by Councilperson Luna and seconded by Councilperson Bewley, the foregoing Resolution is hereby adopted in its entirety on the following roll call vote: AYES: Councilmembers Bewley, Borgeson, Luna, Nimmo and Mayor Kudlac NOES: None ABSENT: None ADOPTED: June 22, 1993 A T _ CITY OF ATASCADERO By: r, L OIN, Oty Clerk TY KUDLAC, Mayor APPROVED AS TO FORM: ART E . M TA O , ity Attorney Resolution No. 70-93 Exhibit A Page 1 EXHIBIT $$A" AGREEMENT FOR THE ACQUISITION OF IMPROVEMENTS CITY OF ATASCADERO CAMINO REAL IMPROVEMENT PROJECT THIS AGREEMENT is made and entered into this day of , 1993, by and between the City of Atascadero, a municipal corporation of the State of California (the "City"), acting on behalf of the Camino Real Improvement Project Assessment District,and Golden West Development Corp.,a California corporation, (the "Developer"). RECITALS: 1. Developer has filed its petition with the City, and the City has instituted proceedings under the Municipal Improvement Act of 1913 (the "Act"), for the formation of a special assessment district pursuant to Resolution No. 119-92, adopted November 10, 1992, for the acquisition and construction of public improvements and to finance the cost thereof by the issuance of City of Atascadero, Camino Real Improvement Project, Limited Obligation Improvement Bonds (the "Bonds"), under the Improvement Bond Act of 1915 (the "Bond Act"). 2. Developer is the owner of all that certain land, the boundaries of which are shown on a map thereof attached hereto as Exhibit "A,', and said land shown in that Exhibit "A" is located within the boundaries of the Camino Real Improvement Project Assessment District (the "Assessment District") and is thereby subject to a lien of assessment allocated among the land within the Assessment District pursuant to an engineer's report (the "Engineer's Report") a copy of which is attached hereto as Exhibit 111311. 3. Developer desires to construct all of the public improvements generally described in Exhibit "B" (the "Improvements"). 4. The City and the Assessment District have determined that the acquisition of the Improvements pursuant to this Agreement will provide a public purpose by permitting the earlier installation of needed public improvements than could be achieved without such acquisition. Resolution No. 70-93 Exhibit A Page 3 COVENANTS: In consideration of the mutual promises and covenants set forth herein, and for other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. Formation of the Assessment District and the Sale of Bonds. The City shall continue to completion all necessary proceedings (the "Proceedings") pursuant to the Act and Bond Act for the issuance, sale and delivery of the Bonds (the "Bonds"); provided that each step in the Proceedings and the Principal amount and timing of the sale of Bonds shall be in all respects subject to the approval of the City Council or its designee, and nothing contained herein shall be construed as requiring the City to issue the Bonds for the Assessment District. 3. Purchase and Sale. Subject to the terms and conditions contained hereinafter, the Developer agrees to sell and the City agrees to purchase all those certain public improvements as more particularly described in Exhibit "B". 4. Use of Bond Proceeds. The proceeds of the Bonds shall be deposited, held, invested, reinvested and disbursed as provided in the Resolution pursuant to which the Bonds are issued (the "Resolution"). A portion of the proceeds of the Bonds shall be set aside pursuant to the Resolution in a separate improvement fund (the "Improvement Fund") to pay the cost of the acquisition of those certain Improvements described in Exhibit "B". 5. Construction of and Payment for Improvements. a. Plans and Specifications: Prevailing Wages. The Developer represents that it has or will obtain approval in writing by all appropriate City departments of the plans and specifications for the Improvements. The Developer further represents that said design, plans and specifications shall meet all City standards and requirements, as well as all other local, state and federal standards and requirements, as applicable. To the extent required by applicable law, the Developer and its contractors shall comply with the California Labor Code provisions concerning payment of prevailing wages, wage rates, employment of apprentices, hours of work and overtime, keeping and retention of payroll records, and other requirements applicable to public works projects within the meaning of the Labor Code. Resolution No. 70-93 Exhibit A Page 4 b. Call For Bids. The Developer shall solicit and obtain not less than three (3) proposals or bids for the construction of said Improvements. The Developer shall be directed to publish once a week for two weeks in a local newspaper published and circulated in the City, a Notice inviting sealed proposals or bids for the construction of Improvements, and referring to the approved plans and specifications. Said sealed proposals shall be delivered to and opened at the office of the Director of Public Works of the City, or such other City office as the City shall designate. Developer shall award the contract to the lowest responsible bidder or,within ten(10) days after awarding the contract to the lowest bidder, can agree to perform the work himself at a price not exceeding the lowest responsible bid. The contractor shall be approved by the City and shall be licensed in the State of California to do the type of work called for in the approved plans and specifications. Such selected contractor shall construct the improvements consistent with the approved plans and specifications. C. Inspection and Acceptance. The Improvements shall be promptly accepted by the City and the Purchase Price (as hereinafter defined) promptly paid from Bond proceeds if upon a final inspection by the City the Improvements are completed in accordance with the approved plans and specifications, a notice of completion has been filed with the San Luis Obispo County Recorder, and there has been a delivery of appropriate lien releases from all subcontractors and a waiver and lien release from the general contractor. Developer shall be responsible for all costs incurred in testing the Improvements needed or required by the City or other public entities having jurisdiction, such as the State Department of Health Services or the California Regional Water Quality Control Board. The Improvements shall be subject to inspection by the City, which inspection shall be accomplished in a timely manner. The inspection of the Improvements shall not relieve the Developer or its contractors of their obligation to construct the Improvements in accordance with the approved plans and specifications. The Developer shall provide the City with a twelve (12) month warranty covering workmanship and materials. Defective work shall be made good and substandard materials may be rejected and replaced at no cost to the City, notwithstanding that such work and materials have been previously overlooked or inspected by the City. If any deviation occurs with respect to the plans and specifications it shall require a change order approval of the City. Prior to acceptance of any Improvements by the City, the Developer shall provide as-built drawings in a reproducible mylar form reasonably acceptable to the appropriate City Engineer, along with evidence reasonably satisfactory to the City Engineer that all costs of the Improvement have been fully paid by the Developer. All warranties, guarantees or other evidence of contingent obligations of third persons with respect to such Improvements shall be delivered to the City Engineer prior to the City's acceptance thereof. d. Purchase Price. City agrees to pay the actual cost of the items of construction set forth in Exhibit "B" attached hereto (the "Purchase Price") which shall be reasonably determined by the City Engineer. The Purchase Price shall not exceed the cost of developing the Improvements described in Exhibit "B". Notwithstanding the foregoing, the Purchase Price shall include, but not be limited to, all costs of the Improvements, the costs for preparing plans, specifications and as-built drawings, and all Resolution No. 70-93 Exhibit A Page 5 costs of construction reasonably determined by the City Engineer to be eligible under the Act to be part of the Purchase Price. The Purchase Price will also include fees and costs incurred in obtaining permits,licenses, easements, the costs of change orders,plan checking, inspection, engineering, legal, construction supervision, administration, and accounting. The Developer shall provide any documentation substantiating the cost of the Improvements reasonably requested by the City Engineer or the City Administrative Office. There shall be a presumption of reasonableness as to costs incurred under a construction contact entered into as a result of calling for bid proposals, provided that no extraordinary limitations or requirements (such as a short time frame) are imposed by the Developer or the performance of such construction contract. e. Payments to Developer. Upon completion of each of the items of Improvements as described in Exhibit "B", the Developer may request in writing a payment on the total Purchase Price of such item. Such payments therefor shall be made only from the Improvement Fund to the extent it contains available Bond proceeds (and from no other funds or accounts of the City) and in the amount reasonably determined by the City Engineer with respect to the Improvement to be acquired, as specified in a cost certificate completed by the City Engineer. Any such Improvement to be acquired by the City must be completed, inspected and accepted in accordance with Paragraph Sc hereof. Any Improvement to be accepted by the City must be in such condition that it is ready for use by the City or the public as determined by the City Engineer. Subject to the other terms and conditions contained herein, the City may, at its sole discretion, acquire the Improvements from the Developer in one or more phases as improvements are completed and installed; provided, however, the aggregate purchase price for each phase or segment of work to be acquired shall not exceed the share of Bond proceeds allocated for such phase or segment of work as specified in the Engineer's Report, and further provided that under no circumstances shall the aggregate Purchase Price for the total of all the Improvements to be acquired hereunder exceed the total aggregate of Bond Proceeds allocated for the acquisition of the Improvements listed in Exhibit ,B,,. 6. Ownership and Transfer of Improvements. The provision for conveyance of the Improvements to the City shall take place as follows: (a) Improvements Constructed on Land Owned by Developer. If Improvements are located on land owned or controlled by Developer, then Developer shall retain the title it obtains to said land and the Improvements constructed thereon until the land and Improvements are acquired by City, pursuant to this Agreement. Until title to the land and Improvements are acquired pursuant to this Agreement, the Developer shall maintain the land and Improvements in good and safe condition. Transfer of title to the land and Improvements shall take place as specified below. (b) Improvements Constructed on Land Owned by City in Fee or Resolution No. 70-93 Exhibit A Page 6 Easement. If Improvements are located on land which the City holds fee title or easement rights, the Developer is hereby granted a license to enter the said land for purposes related to the construction and maintenance, prior to acquisition by the City of said Improvements pursuant to this Agreement. (c) Personal Property. If the Developer provides any personal property as part of the Improvements to be acquired by the City pursuant to this Agreement, transfer by the Developer to the City shall be accomplished by a Bill of Sale. 7. Ownership and Transfer of Real Property. Conveyance of the real property to the City shall take place as follows: (a) Land (fee or easement). Developer shall transfer to the City the appropriate rights, title and interest in and to the land to be acquired as part of the Proceedings. Title to said land shall be free and clear of all liens, encumbrances and other monetary obligations, as evidenced by a standard CLTA form of title insurance issued by a title company acceptable to City. Developer agrees to execute and deliver to the City, those documents of conveyance required to transfer acceptable title (as defined herein) to the land. Acceptable title means title to the land delivered free and clear, as evidenced by a standard CLTA form of title insurance, of all liens, encumbrances, assessments, easements or leases, whether any such interest is recorded or unrecorded, taxes, and any other monetary obligation, except those matters which are determined by the City Engineer in his reasonable direction not to interfere with the intended use of the land and therefore are not required to be cleared from the title. Developer also agrees to execute and deliver to the City all real property, interests in real property, easements, rights-of-way and title insurance that are necessary or appropriate for the ownership and maintenance of the said Improvements at no cost to City. (b) Closing Costs. City shall reimburse Developer from the available Bond proceeds, to the extent permissible under Paragraph 5e hereof, any requested documentary transfer taxes, the cost of title insurance for any title policy, the cost of any special endorsements, the cost of recording necessary documents and any escrow fees. Resolution No. 70-93 Exhibit A Page 7 8. Permits. Licenses and Easements. Developer shall obtain all necessary local, City, and State permits and approvals, including, but not limited to, encroachment permits, and shall conform to the requirements thereof. Developer shall obtain all real property, interests in real property, easements and rights-of-way that are necessary or appropriate in the opinion of the City, for the ingress and egress to and from the Improvements for the maintenance, repair, removal, replacement and improvement thereof, and said grant deeds and easements shall be in a form approved by the City. 9. Indemnification and Hold Harmless. Developer and its contractors shall defend, indemnify and hold harmless the City and its Agents, officers, directors, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses, including reasonable attorneys' fees and court costs, of every type and description, by reason of or resulting from (i) Developer's breach of any of its obligations under this Agreement, (ii) the design, engineering and construction of the Improvements described in Exhibit "B", and all appurtenances thereto, (iii) any cause or causes whatsoever (other than City willful misconduct or sole active negligence) occurring in or about the Improvements while Developer is in possession thereof, or (iv) the claims of Developer, its officers, employees or agents, wherever or however the same may occur. In addition, if the City or any of its directors, officers, employees or agents should be sued as a result of such performance, the City shall notify the Developer which shall have the duty to defend the City, and/or its respective directors, officers, employees or agents, or, at the City's option, pay for such defense including, but not limited to, payment of all reasonable attorney's fees and expenses incurred by the City, and/or its respective directors, officers, employees or agents. City shall not be liable to Developer, for any injury to Developer in or about the land resulting from theft, fire, act of God, riot, strike, insurrection, war, court order, requisition or government order; provided, however, that City shall not be released from liability for loss or damage proximately caused by its willful misconduct or sole active negligence of which it has knowledge and a reasonable time to correct. The parties expressly agree and acknowledge that Developer's duties to indemnify, protect, defend and hold harmless under this paragraph shall extend to causes of action, penalties, claims, costs, expenses, demands, lawsuits and liability of or against the City resulting from the alleged failure to comply with any provision of the California Labor Code, Division 2, Part 7, Chapter 1 (Sections 1720-1861) in connection with the construction of Improvements. In connection with the foregoing, Developer agrees with City to secure comprehensive public liability and property damage insurance in the following amounts: comprehensive liability, $1,000,000 per person,$3,000,000 per occurrence;$500,000 property damage. Developer agrees with City that it shall specifically name and cause City, and its respective officers, agents and employees to appear as additional insureds under said comprehensive liability policy and shall see that the comprehensive liability carrier is obligated to furnish City a notice of any cancellation of said insurance at least ten (10) Resolution No. 70-93 Exhibit A Page 8 days prior to any such cancellation. Developer further agrees to provide City prior to commencing work under this Agreement with evidence of said comprehensive, public liability insurance. The comprehensive general and automobile liability insurance coverage shall also include the following: a. "Cross Liability" or "Severability of Interest" clause. b. General Liability coverage shall include: (1) Comprehensive Form (2) Premises-Operations (3) Explosion and Collapse Hazard (4) Underground Hazard (5) Products/Completed Operations Hazard (6) Contractual Insurance (7) Broad Form Property Damage Including Completed Operations (8) Independent Contractors (9) Personal Injury C. Automobile Liability coverage shall include: (1) Comprehensive Form Including Loading and Unloading (2) Owned (3) Hired (4) Non-Owned Before work is commenced, the Developer or its contractor shall furnish the City with certificates of insurance as satisfactory proof that he carries worker's compensation insurance as required by law and liability insurance in compliance with these requirements. 10. Relationship to Public Works. The parties hereto agree that this Agreement is for the acquisition of certain public Improvements and appurtenances thereto by the City from the proceeds of the sale of the Bonds and is not, nor is it intended to be, a public works contract. In performing this Agreement, the Developer is an independent contractor and not the agent of the City or the Assessment District. Neither the City or Assessment District shall have the responsibility for payment to any contractor or supplier of the Developer. Notwithstanding the foregoing, the Developer understands that it shall be subject to certain public contract requirements as provided herein. 11. Attorney's Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorney's fees. Resolution No. 70-93 Exhibit A Page 9 12. Records. All records, accounts, documentation and other materials relevant to a fiscal audit or examination, as specified by the City, shall be retained for a period of not less than three (3) years from the date that all Improvements have been acquired by the City pursuant to this Agreement or until such audit or examination is finished, whichever is later. If so directed by the City upon termination of this Agreement, the Developer shall cause all records, accounts, documents, and other materials relevant to the work to be delivered to the City as depository. 13. Audits and Recovery of Overpayments. City and state officials shall have the right, at any time during regular working hours, on reasonable advance notice, to monitor and audit all work performed and all records and procedures related to this Agreement, in order to see that all applicable city and state regulations are met, to determine the extent to which this Agreement is achieving its purpose, and to ensure that costs are being incurred, reported and paid properly. 14. Nondiscrimination. The City is an equal employment opportunity employer and is committed to an active nondiscrimination program. The City is committed to and will afford equal employment opportunity to all applicants and employees without regard to race, color, religion, ancestry, national origin, age (over 40 years), sex, marital status, medical condition (cured or rehabilitated cancer), physical handicap, political beliefs, or sexual preference. During the performance of all present contracts and future contracts between the City and the State of California, which require the application of this policy, the City, the Developer and its subcontractors and agents shall not unlawfully discriminate against any ancestry, physical handicap, medical condition (cured or rehabilitated cancer), marital status, age (over 40 years), sex, political beliefs, or sexual preference. The City and Developer agree that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, or handicapped condition, be excluded from participation in, be denied benefits of, or be subjected to discrimination 15. Conflict of Interest. Developer or its subcontractors or agents shall not, during the term of this Agreement, with respect to the performance of this Agreement, without having promptly disclosed the same to City in writing: a) Contract for the acquisition of goods or services for more consideration than would be paid for equivalent goods or services on the open market from any person who is related by blood or marriage to a manager or a member of the governing board of the Developer, subcontractor or their agents, as the case may be; or Resolution No. 70-93 Exhibit A Page 10 b) Contract for the acquisition of goods or services for more consideration than would be paid for equivalent goods or services on the open market from the organization in which any person who is related by blood or marriage to a manager or member of the governing board of the Developer, subcontractor or their agents, as the case may be, has a substantial personal financial interest. Such disclosure shall be in writing, addressed to the City Administrative Office. Should the City Administrative Office object to such employment or contracting refuse to give consent in writing to the Developer within three weeks of receipt of the disclosure, then Developer either shall not permit such employment or contracting as so disclosed, or shall file a letter with the City Clerk protesting the City Administrative Office's decision. In that event, said employment or contracting may continue until the City Council has decided the matter. The Developer shall comply with such Council decision. 16. Non-collusion. When the Developer calls for bids under paragraph 5b of this Agreement, he shall require a non-collusion affidavit to be executed by each bidder and submitted with the bid. The non-collusion affidavit shall be first subject to City approval, and at a minimum shall provide for the following. a) That the signatory of the affidavit is the party making the bid; b) That the bid is not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization, or corporation; c) That the bid is genuine and not collusive or sham; d) That the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; e) That the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or that of any other bidder, or to secure any advantage against the public body awarding the contract to anyone interested in the proposed contract; f) That all statements contained in the bid are true; and g) That the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Resolution No. 70-93 Exhibit A Page 11 17. Notices. Any notices, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or 72 hours following deposit of the same in any United States Post Office in California, registered or certified mail,postage prepaid, addressed as follows: Developer: GOLDEN WEST DEVELOPMENT CORP. 7544 Morro Road P.O. Box 961 Atascadero, California 93423 Attention: Richard K. Shannon James H. Miller, Jr. Chuck Voorhis City: City of Atascadero 6500 Palma Avenue Atascadero, California 93422 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party. 18. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 19. Successors and Assigns. Subject to the approval of the City first had and obtained this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 20. Limited Liability. Any and all obligations of the City arising out of or related to this Agreement are the special and limited obligations of the City payable only from the funds of the Developer paid hereunder or from other funds of the Assessment District to the extent such may become available. In no event shall the City be obligated to advance any of its own funds hereunder. No councilperson, staff member, agent or designee of the City shall incur any liability hereunder to the Developer or any other party in their individual capacities by reason of their actions hereunder or execution hereunder. 21. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 22. Amendments. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day Resolution No. 70-93 Exhibit A Page 12 and year first above written. CITY OF ATASCADERO, for itself and on behalf of Camino Real Improvement Project Assessment District By: ATTEST: City Clerk Approved as to form: City Attorney By: "Developer" By: "Developer" Resolution No. 70-93 Exhibit "A" Page One EXHIBIT IIA" MAP OF PROJECT AREA (to come) Resolution No. 70-93 Exhibit B Page One EXHIBIT nBn ENGINEER v S REPORT (to come)