HomeMy WebLinkAbout2013-030 Oakhaven Subdivision Improvement JULIE RODEWALD NB
San Luis Obispo county—Clerk/Recorder 10/10/2013
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Government Code § 6103
RECORDING REQUESTED BY AND Fees 74.00
WHEN RECORDED MAIL TO: 11111111111111111111111111 Taxes 0.00
Others 0.00
CITY OF ATASCADERO l PAID $74.00
6905 El Camino Real, Ste 6
Atascadero, CA 93422
Attention: City Clerk
SUBDIVISION IMPROVEMENT AGREEMENT
This Subdivision Improvement Agreement is made and entered into this 101h day of
September, 2013, by and between the City of Atascadero, a municipal corporation, hereinafter
referred to as"City,"and Oak Haven Village,Inc.,hereinafter referred to as"Subdividiver."
RECITALS
A. Subdivider has presented to the City a parcel map or final map of a proposed
subdivision of land located within the corporate limits of the City that has been prepared in
accordance with the Subdivision Map Act of the State of California,the subdivision ordinances
of the City,and the tentative map of the Subdivision previously approved by the City Council.
B. The proposed subdivision of land is commonly known and described as Tract
2614, and is hereinafter referred to as the"Subdivision"or the"Project."
C. Subdivider has requested approval of the parcel map or final map prior to the
construction and completion of the public improvements, including, but not limited to streets,
highways,public ways, sidewalks, curbs, gutters, storm drainage facilities, street and traffic
signal lighting,public utility facilities,median and parkway landscaping and irrigation, design
standards which are part of the provisions for lot grading and drainage in or appurtenant to the
Subdivision, and other public improvements that are required by the Subdivision Map Act,the
Subdivision ordinances of the City, the tentative map (and approvals given in connection
therewith), and final grading plan, if any, approved by the City. The foregoing improvements
are hereinafter referred to as "the Required Improvements,"as further described in the
Engineer's estimate which is included as Attachment"A"and shown in the subdivision
improvement plans,permit number BLD 2006-05912, that are on file with the City.
NOW, THEREFORE,the parties agree as follows:
1. Performance of Work. Subdivider agrees to furnish, construct and install at
Subdivider's own expense the Required Improvements as shown on the plans and specifications
of the Subdivision, a copy of which is on file in the office of the City Manager,and is
incorporated herein by reference, along with any changes or modifications as may be required by
the City Manager or the City Manager's designee(hereinafter"City Manager") due to errors,
787222.411335. 1 1
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omissions, or changes in conditions. The plans and specifications of the Required Improvements
may be modified by the Subdivider as the development progresses, subject to the prior written
approval of the City Manager. The total estimated cost of the Required Improvements, as
determined by the City Manager, is five hundred eighty nine thousand nine hundred fifty eight
dollars ($589,958.00).
2. Work,• Satisfaction of City Manager. All of the work on.the Required
Improvements is to be done at the places, of the materials, and in the manner and at the grades,
all as shown upon the approved plans and specifications and the City's Improvement Standards
and Specifications, to the satisfaction of the City Manager. Subdivider shall protect, maintain
and repair all work installed by subdivider prior to the acceptance of the Required
Improvements, including, but not limited to, signing and striping, activation of all street.lighting,
traffic signals and irrigation controllers and payment of all energy costs through the warranty
period.
3. Injury to Public Improvements, Public Property or Public Utilities Facilities.
Subdivider shall replace or repair, or have replaced or repaired, all public improvements,public
utility facilities, and surveying or Subdivision monuments which are destroyed or damaged in the
performance of any work under this Agreement. Subdivider shall bear the entire cost of
replacement or repairs of any and all.public or private utility property damaged or destroyed in
the performance of any work done under this Agreement, whether such property is owned by the
United States or any agency thereof, or the State of California, or any agency or political
subdivision thereof, or by the City or any public or private utility corporation or by any
combination.of such owners. Any repair or replacement shall be to the satisfaction of the City
Manager.
4. Inspection by City. Subdivider shall at all times maintain proper facilities and
safe access for inspection of the public improvements by City and to the shops wherein any work
is in preparation. Upon completion of the work,the Subdivider may request a final inspection by
the City Manager or the City Manager's representative. If the City Manager or the designated
representative determine that the work has been completed in accordance with this Agreement,
then the City Manager shall recommend the acceptance of the public improvements to the City
Council.. No improvements shall be finally accepted unless all aspects of the work have been
inspected and determined to have been completed in accordance with the Improvement Plans and
City standards and the City Council .has taken action to accept the improvements. Subdivider
shall bear all costs of plan check, inspection and certification.
5. Subdivider's Obligation to Warn Public„During Construction. Until final
acceptance of the Required Improvements, Subdivider shall give good and adequate warning to
the public of each and every dangerous condition existing in said improvements, and will take
reasonable actions to protect the public from such dangerous condition.
6. Superintendence by Subdivider. Subdivider shall.require each contractor and
subcontractor to have a competent foreman on the job at all times when that contractor or
subcontractor, or any employee or agent thereof, is performing work on the Required
Improvements. In addition, Subdivider shall maintain an office with a telephone and Subdivider
or a person authorized to make decisions and to act for Subdivider in Subdivider's absence shall
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be available on the job site within three(3)hours of being called at such office by the City
during the hours of 9:00 A.M. through 5:00 P.M., Monday through Friday, or any other day or
time when work is being performed on the Required Improvements.
7. Work: Time for Commencement and Performance. Work on the Required
Improvements has been commenced by the Subdivider or shall commence on or before the ii 0th
day of September, 2013, and Work on the Required Improvements shall be completed on or
before the 10th day of March, 2015;provided, however,that the Required Improvements shall
not be deemed to be completed until accepted in writing by the City.
8. Time of Essence: Extension.
a. Time is of the essence of this Agreement. The dates for commencement
and completion of the Required Improvements may not be extended, except as provided in this
paragraph. The City Manager may extend the dates for a maximum of one hundred and eighty
(180)days due to delays in the work actually caused by inclement weather,riots, strikes,
lockouts,fires, earthquakes,floods and conditions resulting therefrom, or for other reason
beyond the control of the Subdivider. Extension of the dates for any other cause or beyond one
hundred and eighty(180) days shall be made only by the City Council. Extensions shall be
granted only upon a showing of good cause by the Subdivider. The City Council or City
Manager, as appropriate, shall be the sole and final judge as to whether good cause has been
shown to entitle the Subdivider to an extension.
b. Requests for extension of the commencement and/or completion date shall
be in writing and delivered to the City in the manner hereinafter specified for service of notices.
An extension of time,if any, shall be granted only in writing, and an oral extension shall not be
valid or binding on the City.
C. In the event the City extends the time of commencement and/or
completion of the Required Improvements,such extension may be granted without notice by the
City to the Subdivider's surety and shall in no way release any guarantee or security given by the
Subdivider pursuant to this Agreement, or relieve or release those providing an improvement
security pursuant to this Agreement. The surety or sureties, if any, in executing the securities
shall be deemed to have expressly agreed to any such extension of time.
d. In granting any extension of time,the City may require new or amended
improvement security in amounts increased to reflect increases in the costs of constructing the
Required Improvements or impose other conditions to protect its interests and ensure the timely
completion of the Required Improvements.
9. Utility Under ounding and Relocation Costs. Subdivider shall assume all costs
for utility and cable television undergrounding and/or relocation which is not the responsibility
of the cable television, gas, electric,telephone, or other utility company under the terms of the
franchises with the City or otherwise imposed upon the utility companies by law.
10. Improvement Security. Concurrently with the execution of this Agreement,the
Subdivider shall furnish the City with:
a. Faithful Performance Security. Subdivider shall provide faithful
performance security as set forth in the Atascadero Murnicipal Code section 11-8.14 to secure
faithful performance of this Agreement (the"faithful performance" security). This security shall
be in the amount of one hundred percent (100%) of the total estimated cost of the Required
Improvements, as determined by the City Manager.
b. Payment Security. Subdivider shall also provide payment security as set
forth in the Atascadero Municipal Code section 11-8.14 to secure payment to the contractor,
subcontractors and to persons renting equipment or furnishing labor or materials to them for the
work (the "payment security"). This security shall be in the amount of fifty percent (50%) of the
total estimated cost of the Required Improvements, as determined by the City Manager and shall
secure the obligations set forth in Title 15 (commencing with Section 3082) of Part 4 of
Division 3 of the Civil Code of the State of California.
c. Guarantee and Warranty Security. Subdivider shall also file with this
Agreement a"guarantee and warranty security"in the amount of ten percent (10%) of the total
estimated cost of the Required Inlprovern.ents, as determined by the City Manager,to guarantee
and warrant the Required Improvements for a period of one year following their completion and
acceptance against any defective work or labor done, or defective materials furnished. The
Gauarantee and Warranty of Security shall.be filed with the City prior to onsite improvement
final by Public Works.
d. Monument Security. Subdivider shall also file with this Agreement a
"monument security"in the amount of one hundred percent (100%) of the total estimated cost of
the installation of survey monuments in the Subdivision, as determined by the City Manager,
which total cost is in the amount of six thousand eight hundred Dollars ($6,800.00), to guarantee
and secure the placement of such monuments.
e. All required securities shall be in a form approved by the City Attorney.
f. Any bonds submitted as security pursuant to this section shall be executed
by a surety company authorized to transact a surety business in the State of California. These
bonds shall be furnished on the forms enclosed following this Agreement and shall be
satisfactory to the City. The bonds shall be obtained from a responsible corporate surety (or
sureties) acceptable to the City, which is licensed by the State of California to act as surety upon
bonds and undertakings and which maintains in this State at least one office for the conduct of its
business. The surety (or sureties) shall furnish reports as to its financial condition from time to
time as requested by the City. The premiums for said bonds shall be paid by Subdivider.
g. Any bonds submitted as security pursuant to this section shall be.furnished
by companies who are authorized and licensed by the Insurance Commissioner as "admitted
surety insurers." Bonds must be approved by City. Before approving the proposed surety and in
order to assess the sufficiency of the Surety,the Surety shall provide the City with an original of
a certificate from the clerk of San Lues Obispo County that the certificate of authority of the
insurer has not been surrendered, revoked, canceled, annulled, or suspended or, in the event that
it has,that renewed authority has been granted.
h. No change,alteration,or addition to the terms of this Agreement or the
plans and specifications incorporated herein shall in any manner affect the obligation of the
sureties, except as otherwise provided by the Subdivision Map Act.
i. The securities shall be irrevocable, shall not be limited as to time(except
as to the one-year guarantee and warranty period)and shall provide that they may be released,in
whole or part,only upon the written approval of the City Manager and as provided in paragraph
11. All securities provided pursuant to this Agreement shall expressly obligate the surety for any
extension of time authorized by the City for Subdivider's completion of the Required
Improvements,whether or not the surety is given notice of such an extension by the City.
j. The Attorney-in-Fact(resident agent) who executes the securities on
behalf of the surety company must attach a copy of his/her Power of Attorney as evidence of his
authority. A notary shall acknowledge the power as of the date of the execution of the surety
bond that it covers.
11. Release of Security..
a. Guarantee and Warranty Security. Any unused portion of the guarantee
and warranty security may be released one year after acceptance of the Required Improvements
by the City Council. The amount to be released shall first be reduced by the amount deemed
necessary by the City to correct any defects in the Required Improvements that are known or
believed by the City to exist at the end of the guarantee and warranty period.
b. Payment Security. The payment security may be released thirty-five (35)
days after passage of the time within which claims of lien are required to be recorded pursuant to
Article 3 of Chapter 2 of Title 15 of Part 4 of Division 3 of the Civil Code (commencing with
Section 3114),but in no event shall such security be released prior to one hundred and
twenty(120)days after acceptance of the Required Improvements by the City. The amount to be
released shall first be reduced by the total of all claims on which an action has been filed and
notice thereof given in writing to the City. City expressly may require the surety not to release
the amount of security deemed necessary by City to assure payment of reasonable expenses and
fees, including reasonable attorney's fees.
C. Faithful Performance Security.
(1)The faithful performance security shall be released upon final completion and
acceptance of the Required Improvements by the City Council and in accordance with
Government Code Section 66499.7. Partial release of the faithful performance security shall be
approved only as required by,and subject to the conditions and limitations set forth in,
Government Code Section 66499.7.
(2)If the City approves the partial release of the faithful performance security,the
City may accept replacement security at the required reduced level as a substitute for the original
security,but the release of the original security shall not be effective until the City Council
approves the form and amount of the replacement security. If the partial release is effected
through a reduction in the amount of the existing security,the Subdivider shall provide to the
City written acknowledgement by the issuer of the security that the existing security remains in
full force and effect at the reduced level.
(3)A reduction in performance security under this section is not, and shall not be
deemed to be, an acceptance by the City of the completed improvements, and the risk of loss or
damage to the improvements and the obligation to maintain the improvements shall remain the
sole responsibility of the subdivider until all of the Required Improvements have been accepted
by the City Council and all other required improvements have been fully completed in
accordance with the plans and specifications for the improvements.
d. Monument Security. The monument security may be released upon
acceptance of the required monument installation by the City Manager.
12. Inspection and Other Fees. The Subdivider shall pay to the City all fees imposed
in connection with the construction and inspection of the Required Improvements. These fees
must be paid in full prior to the City's acceptance of the Required Improvements. The fees
referred to above are not necessarily the only City fees, charges or other costs that have been, or
will be, imposed on the Subdivision and its development, and this Agreement shall in no way
exonerate or relieve the Subdivider from paying such other applicable fees, charges,and/or costs.
13. Defense Indemnification and Hold Harmless. To the fullest extent permitted by
law,the Contractor agrees to indemnify, defend and hold harmless, City and any and all of City's
boards, officers, employees, agents, assigns, and successors in interest through legal counsel
reasonably acceptable to the City, from and against any and all claims losses, demand and
expenses, including, but not limited to,attorney's fees and cost of litigation, on account of bodily
injury, including death, or property damage arising out of or in any way connected to the work
performed by Contractor under this agreement. Without affecting the rights of City under any
provision of this agreement, Contractor shall not be required to indemnify and hold harmless
City for liability attributable to the active negligence of the City,provided such active negligence
is determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where City's
active negligence accounts for only a percentage of the liability involved,the obligation of
Contractor will be for that entire portion or percentage of liability not attributable to the active
negligence of City.
This defense, indemnification and hold harmless provision shall extend to claims,
losses,damage,injury,costs,including attorney fees,and liability for injuries occurring after
completion of the construction of the Required Improvements as well as during construction, and
shall apply regardless of whether or not the City has prepared, supplied or approved the plans
and/or specifications for the Required Improvements or has inspected or accepted the same.
Acceptance of insurance required under this Agreement shall not relieve Subdivider from
liability under this defense, indemnification and hold harmless provision.
The parties intend that this provision shall be broadly construed to effectuate its
purpose.
14. Environmental Warranty.
a. Prior to the acceptance of any dedications or improvements by City,
Subdivider shall certify and warrant that: neither the property to be dedicated nor Subdivider are
in violation of any environmental law and neither the property to be dedicated nor the Subdivider
are subject to any existing,pending, or threatened investigation by any federal, state or local
governmental authority under or in connection with any environmental law. Neither Subdivider
nor any third party will use, generate,manufacture,produce, or release, on, under, or about the
property to be dedicated, any hazardous substance, except in compliance with all applicable
environmental laws. Subdivider has not caused or permitted the release of, and has no
knowledge of the release or presence of, any hazardous substance on the property to be dedicated
or the migration of any hazardous substance from or to any other property adjacent to,or in the
vicinity of,the property to be dedicated. Subdivider's prior and present use of the property to be
dedicated has not resulted in the release of any hazardous substance on the property to be
dedicated. Subdivider shall give prompt written notice to City at the address set forth herein of:
(i) Any proceeding or investigation by any federal, state or local
governmental authority with respect to the presence of any hazardous substance on the property
to be dedicated or the migration thereof from or to any other property adjacent to, or in the
vicinity of,the property to be dedicated;
(ii) Any claims made or threatened by any third party against City or
the property to be dedicated relating to any loss or injury resulting from any hazardous
substance; and
(iii) Subdivider's discovery of any occurrence or condition on any
property adjoining or in the vicinity of the property to be dedicated that could cause the property
to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy,
use for the purpose for which it is intended,transferability, or suit under any environmental law.
b. As used in this Agreement,the term"hazardous substance"includes any
hazardous or toxic substance or material or waste, including but not limited to all types of
gasoline, oil, and other petroleum hydrocarbons,asbestos, radon,polychlorinated biphenols
(PCBs), or any other chemical, material, controlled substance, object, condition,waste, living
organism or any combination thereof which is or may be hazardous to human health or safety or
to the environment due to its radioactivity, ignitability, corrosivity, reactivity, explosivity,
toxicity, carcinogenicity, mutagenicity,phytotoxicity, infectiousness or other harmful properties
of effects, which is now, or in the future becomes, listed,defined or regulated in any manner by
any federal, state, or local City based directly or indirectly upon such properties.
15. Subdivider's Insurance.
a. Subdivider Shall Maintain Insurance. Subdivider shall not commence any
work before obtaining,and shall maintain in force at all times during the duration and
performance of this Agreement,the policies of insurance specified in this Section. Such
insurance must have the approval of the City as to limit,form, and amount,and shall be placed
with insurers with an A.M. Best rating of no less than AXII.
b. Subdivider to Provide Evidence of Insurance. Prior to the execution of
this Agreement and prior to the commencement of any work,the Subdivider shall furnish to the
City, and the City must approve, original certificates of insurance and endorsements effecting
coverage for all policies required by the Agreement. Subdivider shall not allow any contractor or
subcontractor to commence work until similar insurance first shall have been so obtained by such
contractor or subcontractor. Certificates shall be signed by a person authorized by the insurer,or
insurers,to bind coverage on their behalf. Certificate of insurance and endorsements shall be on
standard Accord, Department of Insurance, and Insurance Services Office approved forms or on
forms approved by the City. As an alternative to providing the City with approved forms of
certificates of insurance and endorsements, the Subdivider may provide complete,certified
copies of all required insurance policies, including endorsements, effecting the coverage required
by this Section. At any time, at the written request of the City, Subdivider agrees to furnish one
or more copies of each required policy including declarations pages, conditions,provisions,
endorsements, and exclusions. Such copies shall be certified by an authorized representative of
each insurer.
C. No Suspension of Insurance. Each insurance policy required by this
Agreement shall be endorsed to state that coverage shall not be suspended, voided,cancelled,
terminated by either party,reduced in coverage or in limits except after thirty(30) days' prior
written notice by certified mail,return receipt requested,has been given to the City.
d. Deductibles. Any deductibles,or self-insured retentions, exceeding five
thousand dollars($5,000)must be declared to, and approved by,the City. Upon request by the
City, Subdivider shall demonstrate financial capability for payment of such deductibles or self-
insured retentions.
e. Coverages Shall Not Limit Obligations. The requirement as to types,
limits, and the City's approval of insurance coverage to be maintained by Subdivider are not
intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed
by Subdivider under the Agreement.
f. Required Limits. Subdivider and its contractors and subcontractors shall,
at their expense,maintain in effect at all times during the term of this Agreement, not less than
the following coverage and limits of insurance, which shall be maintained with insurers and
under forms of policy satisfactory to the City. The maintenance of Subdivider and its contractors
and subcontractors of the following coverage and limit of insurance is a material element of the
Agreement. The failure of Subdivider or of any of its contractors or subcontractors to maintain
or renew coverage or to provide evidence of renewal may be treated by the City as a material
breach of this Agreement.
g. Workers' Compensation Insurance. Subdivider shall maintain,during the
term of this Agreement, Workers' Compensation insurance for all of Subdivider's employees as
required by Labor Code section 3700 of the State of California and Employer's Liability Act,
including Longshoremen's and Harbor Workers' Act("Acts"), if applicable. Employer's
Liability limits shall not be less than one million dollars ($1,000,000)per occurrence. The
Subdivider shall execute a certificate in compliance with Labor Code section 1.861, on the form
provided in the Contract Documents. The insurer shall agree to waive all rights of subrogation
against the City, its officers, officials, and employees for losses arising from work falling within
the terms of this Agreement. Subdivider shall indemnify and hold harmless the City for any
damage resulting to it,including attorney fees, from failure of either Subdivider or any contractor
or subcontractor to take out and maintain such insurance.
h. Commercial General Liability Insurance. Subdivider shall maintain
during the term of this Agreement such commercial general liability insurance as shall insure the
City, its elective and appointive boards and commissions, officers, agents and employees,
Subdivider and any contractor or subcontractor performing work covered by this Agreement.
The insurance shall include, but not be limited to, protection against claims arising from death,
bodily or personal injury, or damage to property resulting from actions, failures to act, or
operations of Subdivider, any contractor's or subcontractor's operations hereunder, whether such
operations are by Subdivider or any contractor or subcontractor or by anyone directly or
indirectly employed by either Subdivider or any contractor or subcontractor. The amount of
insurance coverage shall not be less than one million dollars ($1,000,000)per occurrence and
two million dollars($2,000,000)per policy aggregate. As an alternative to the policy
(aggregate)the Subdivider may have an aggregate limit of one million dollars($1,000,000)per
occurrence apply. Coverage shall be at least as broad as Insurance Services Office"occurrence
form CG 00 01 (ed. 10/01)"covering commercial general liability or its equivalent.
i. Endorsements. Subdivider shall see that the commercial general liability
insurance shall include, or be endorsed to include,the following:
(a)Provision or endorsement naming the City of Atascadero, its officers,
employees, agents, boards, commissions, and volunteers as Additional Insureds with respect to
liability arising out of the performance of any work under this Agreement.
(b)Provision or endorsement stating that insurance is Primary insurance with
respect to the City, its officers, employees, agents, boards, commissions, and volunteers,to the
extent the City is an additional insured. Any insurance or self-insurance maintained by the City,
its officers,officials,employees, agents,boards, commissions, and volunteers shall be excess of
the Subdivider's insurance and shall not contribute with it.
(c)Provision or endorsement stating that 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(cross-liability).
(d)Provision or endorsement stating that any failure to comply with reporting or
other provisions of the policies including breaches of representations shall not affect coverage
provided to the City,its officers, employees,agents,boards, commissions, and volunteers.
16. Prevailing Wage. In the event it is determined that the Subdivider is required to
pay prevailing wages for the work performed under this Agreement,the Subdivider shall pay all
penalties and wages as required by applicable law, and hold harmless, defend and indemnify the
City for any liability the City may have for penalties and wages as required by applicable law.
17. Title to Required Improvements. The City shall not accept any real property to be
dedicated or the Required Improvements unless they are constructed in conformity with the
approved plans and specifications, approved modifications, if any,the approved final or parcel
map, and City Improvement Standards and Specifications,to the satisfaction of the City
Manager. Until such time as the Required Improvements are accepted by the City, Subdivider
shall retain title and shall be responsible for, and bear the risk of loss to, any of the improvements
constructed or installed.
Title to and ownership of any real property to be dedicated and the Required
Improvements constructed under this Agreement by Subdivider shall vest absolutely in the City
upon completion and acceptance in writing of such Required Improvements by City. The City
shall not accept the Required Improvements unless title to the Required improvements is entirely
free from lien. Prior to acceptance, Subdivider shall supply the City with appropriate lien
releases, at no cost to and in a form acceptable to the City.
18. Repair or Reconstruction of Defective Work. If, within a period of one year after
final acceptance by the City Council of the Required Improvements, any improvement or part of
any improvement furnished and/or installed or constructed, or caused to be installed or
constructed by Subdivider, or any of the work done under this Agreement materially fails to
fulfill any of the requirements of this Agreement or the specifications referred to herein,
Subdivider shall without delay and without any cost to City, repair,replace or reconstruct any
defective or otherwise unsatisfactory part or parts of the improvements. If the Subdivider fails to
act promptly or in accordance with this requirement, or if the exigencies of the situation require
repairs or replacements to be made before the Subdivider can be notified, then the City may, at
its option,make the necessary repairs or replacements or perform the necessary work,and
Subdivider shall pay to City the actual cost of such repairs plus fifteen percent(15%)within
thirty (30) days of the date of billing for such work by City.
19. Subdivider Not Agent of City. Neither Subdivider nor any of Subdivider's
agents, contractors,or subcontractors are or shall be considered to be agents of the City in
connection with the performance of Subdivider's obligations under this Agreement.
20. Notice of Breach and Default. The following shall constitute a default under this
Agreement: If Subdivider refuses or fails to prosecute the work on the Required Improvements,
or any part thereof,with such diligence as will ensure its completion within the time specified, or
any extension thereof, or fails to complete the Required Improvements within such time; if
Subdivider should be adjudged a bankrupt, or 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. In the event of
Subdivider's default, Subdivider shall be deemed to be in breach of this Agreement and the City
may serve written notice upon Subdivider and Subdivider's surety,if any, of the breach of this
Agreement. Subdivider shall have fifteen (15) days from receipt of written notice by City to cure
any default.
21. Breach of Agreement; Performance By Suret, o�y. In the event Subdivider is
in default under this Agreement, and the applicable cure period set forth in paragraph 21 has
expired without such default having been cured by Subdivider, the City may thereafter deliver a
notice of breach to Subdivider's surety, if any, and such surety shall have the duty to take over
and complete the work on the Required Improvements;provided,however,that if the surety
within fifteen(15)days after the serving of such notice of breach upon it does not give the City
written notice of the surety's intent to take over the performance of the Agreement,or does not
commence performance thereof within fifteen(15) days after notice to the City of such election,
then the City may take over the work and prosecute the same to completion by contract,or by
any other method the City may deem.advisable, for the account and at the expense of the
Subdivider, and the Subdivider's surety shall be liable to the City for any excess cost or damages
incurred by the City. In such event, the City, without liability for so doing, may take possession
of and utilize in completing the work such materials, appliances,plants or other property
belonging to Subdivider as may be on the site of the work and necessary therefore. The remedy
provided by this paragraph is in addition to, and not in lieu of, other remedies available to the
City. The City reserves to itself all remedies available to it at law or in equity for a breach of
Subdivider's obligations under this Agreement. In addition to any other remedy the City may
have, a breach of this Agreement by the Subdivider shall constitute consent to the filing by the
City of a notice of violation against all the lots in the Subdivision. Subdivider agrees that the
choice of remedy or remedies for Subdivider's breach shall be in the discretion of the City.
If the form of improvement security is other than a bond,the City, after giving
notice of breach of the Agreement,may proceed to collect against the improvement security in
the manner provided by law and by the terms of the security instrument.
22. Building-Permit Sign-Off or Issuance of Certificate of Occupancy.
The City will not final or sign off as complete any building permit or issue any certificate
of occupancy for any building constructed within the Subdivision, until and after such time as the
City Engineer accepts the subdivision improvements that front the building to be fmaled. This
includes any fire access or turn-a-round required by the Atascadero Fire Department. The
subdivision improvements are shown in the plans associated with Building Permit 2006-05912.
The final two buildings in Tract 2614 will not be fmaled until all subdivision improvements are
completed and accepted by the City.
23. Notices. All notices required under this Agreement shall be in writing, and
delivered in person or sent by registered or certified mail,postage prepaid.
Notices required to be given to City shall be addressed as follows:
City Manager
CITY OF ATASCADERO
6907 El Camino Real
Atascadero, CA 93422
Notices required to be given to Subdivider shall be addressed as follows:
Daniel Silverie, III
President
Oakhaven Village, Inc
3160 Ocean Ternaee
Marina, CA 93933
..... .... ....................... . .. .... ......................................... ..................................................................... ..................... .................... ............:
Any party may change such address by notice in writing to the other party and
thereafter notices shall be addressed and transmitted to the new address.
24. Waiver. The waiver by either party of a breach by the other of any provision of
this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Agreement.
25. Attorney Fees. In the event any legal action is brought to enforce or interpret this
Agreement,the prevailing party shall be entitled to an award of reasonable attorney fees, in
addition to any other relief to which it may be entitled.
26. Personal Nature of Subdivider's Obligations/Assignment. All of Subdivider's
obligations under this Agreement are and shall remain the personal obligations of Subdivider
notwithstanding a transfer of all or any part of the property within the Subdivision subject to this
Agreement, and Subdivider shall not assign any of its obligations under this Agreement without
the prior written consent of the City.
27. Acquisition and Dedication of Easements or Rights-of-Way. If any of the
Required Improvements are to be constructed or installed on land not within the Subdivision or
an already existing public right-of-way,no construction or installation shall be commenced
before:
a. The irrevocable offer of dedication or conveyance to City of appropriate
rights-of-way, easements or other interests in real property, and appropriate authorization from
the property owner to allow construction or installation of the Required Improvements, or
b. The issuance of an order of possession by a court of competent jurisdiction
pursuant to the State Eminent Domain Law. Subdivider shall comply in all respects with any
such order of possession.
Nothing in this paragraph shall be construed as authorizing or granting an
extension of time to Subdivider for completion of the Required Improvements.
28. Compliance with Laws. Subdivider,its agents,employees, contractors,and
subcontractors shall comply with all federal, state and local laws in the performance of the work
required by this Agreement,including but not limited to obtaining all applicable permits and
licenses.
29. No Vestingof Rights. Entering into this Agreement shall not be construed to vest
Subdivider's rights with respect to any change in any zoning or building law or ordinance.
30. Approvals by City. Any approval or consent that is to be given by the City under
this Agreement shall be in writing, and any approval or consent that is not in writing shall not be
binding on the City.
31. Construction and Interpretation. It is agreed and acknowledged by Subdivider
that the provisions of this Agreement have been arrived at through negotiation, and that
Subdivider has had a full and fair opportunity to revise the provisions of this Agreement and to
have such provisions reviewed by legal counsel. Therefore, the normal rule of construction that
any ambiguities are to be resolved against the drafting party shall not apply in construing or
interpreting this Agreement.
32. Successors and Assigns --Covenant Running With the Land. This Agreement
shall inure to the benefit of, and be binding upon, the successors and assigns of the respective
parties. A memorandum of this Agreement in the form attached hereto shall be recorded in the
Office of the Recorder of San Luis Obispo County concurrently with the final map or parcel map
of the Subdivision. This Agreement shall constitute a covenant running with the land and an
equitable servitude upon the real property within the Subdivision.
33. Severability. The provisions of this Agreement are severable. If any portion.of
this Agreement is held invalid by a court of competent jurisdiction,the remainder of the
Agreement shall remain in full force and effect unless amended or modified by mutual written
consent of the parties.
34. Actions. Any action by any party to this Agreement, or any action concerning a
security furnished pursuant thereto, shall be brought in the appropriate court of competent
jurisdiction within the County of San Luis Obispo, State of California,notwithstanding any other
provision of law which may provide that such action may be brought in some other location.
The law governing this Agreement is the law of the State of California.
35. IntegEation. This Agreement is an integrated agreement. It supersedes all prior
negotiations, representations, or agreements,either written or oral.
36. Modification. This Agreement may be amended only by a written instrument
signed by the parties. Subdivider shall bear all costs of amendments to this Agreement that are
requested by the Subdivider.
Oakhaven Village Inc. September 10, 2013
Subdivision Improvement Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as follows:
CITY OF ATASCADERO
Ra elle Rickard, City Manager
ATTEST.
c
N
Marcia,N' 'rdrgeTson,City=Clerk
APPROVED AS`TO`FORM:
4 9 �
Brian Pierik, City Attorney
Burke, Williams & Sorensen, LLP
SUBDIVIDER
By:
Title:
9/20/0&
787222.4 11335.1
CALEFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On61k g Il24z before me, Z11"A4,M_ AA%I
e. -3
Date Here InserfName and Title of the Officer
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(sr) is/are
subscribed to the within instrument and acknowledged
to me that he/fie/they executed the same in
his/i Wltheir authorized capacity(ies), and that by
L 1: 1 MAM i E his/h
,ar/th,,& signature(s) on the instrument the
comatis-sion 0 IBM"? person(*j', or the entity upon behalf of which the
Wary PuNIP.-Cdaft"M
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the :tj
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ;L z
a
Place Notary Seal and/or Stamp Abovenaturerof Notary Public
OPTIONAL
Though the information below is not required bylaw,itmay prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached DocLVnent
Title or Type of Document: AjWlwz_a�
Document Date: A9
_13 Number of Pages:
Signer(s)Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signers Name:
P-!' Corporate Officer Title(s): 0 Corporate Officer—Title(s):
0 Individual 0_1 Individual
Partner—70 Limited 0 General Top of thumb hcr�. Partner—L Limited 0 General Top of thumb here
1-1 Attorney in Fact 0 Attorney in Fact
D Trustee ID,Trustee
f-1 Guardian or Conservator 0 Guardian or Conservator
0 Other: Ell Other:
Signer Is Representing: Signer Is Representing:
deIJA4�� 4� 4w
®2008 National Notary Association-9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NafionaiNotary.org Item H5907 Reorder:Call Toft-Free 1-800-876-6627
"OVERNMENT CODE 27361.7
I certify ender the penalty of perjury that the notary seal on the
document to which this statement is attached reads as follows:
Name of Notary L--/ iLi-0r4 Afi#i21i VAIL"
Name of County
r
Date Co °ssion Expires f. tF c_ Z,o
Commissio -7 4LF;
Adt-,4AJ VOL102-et'i
J
Signature of person (firm name if
any) making verification
Date ()Gig/
Location
(City)
State of California
CALIFORNIA AL- E ACKNOWLEDGMENT
State of California
County of Y g :.
0n :1f14A I , 61C! before me,
Date Here Insert Name and.Title of the Officer
t.
personally appearedf,r -• L,%:-( - �:.- �t' �
Names)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose names) is/are subscribed to the
within instrument and acknowledged to me that
`x he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/herAheir signature(s) on the
��� CAVA instrument the person(s), or the entity upon behalf of
Ccl�fmissios��2030435
which the person(s) acted, executed the instrument.
t�r�pubt(�-C�166rtta
fan Eds Obispo C I certify under PENALTY OF PERJURY under the laws
W.E. ctrl Jute 20th
E. of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hared and official s a i.
Signature`
Place Notary Seal Aboveg p _ Signature of Notary Public
O6"Tp ONAI
Though the information below is not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type at Document: � i....�6 'i y _
a J �,y. 7 L ifs{ c s.. .. v`i�-Zt ! G•y •� �..�
Document Date: ; -'11f. t Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name: t � •4 �'1 -" '° '
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): _ ❑Corporate Officer—Title(s):
❑ Partner—C Limited LD General , e ❑ Partner—❑Limited ❑General
❑ Attorney in Fact • y ❑Attorney in Fact •
❑ Trustee Top of thumb here El Trustee Top of thumb here
C Guardian or Conservator ❑Guardian or Conservator
❑ Other: ^!Other:
Signer Is Representing: Signer Is Representing:
{{
02007 National Notary Association•9350 De Soto Ave.,P.0.6ox 2402•Chatsworth,CA 91313.2402•www.NationalNotaryorg Item#5907 Reorder:Call TON-Free 1-800.876-6827
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331 ATS.a e -fem
dba Volbrecht Surveys
3590 Sacramento St.,Suite 110,San Luis Obispo,CA,93409
(805)781-9296 Fax(805)781-8050
City of Atascadero August 19, 2013
Department of public Works
6907 El Camino Real
Atascadero, CA 93422
Subject: Tract 26141 Anal Monuments
Gentleman,
This firm has been contracted to prepare and process through recordation the final tract map
for Tract 2614. Following recordation of the tract map and completion of all onsite improvements, this
firm will set all final property corners as shown on said reap.
Our fee for setting all property corners will be $6,800.00.
Thank you and please do not hesitate to call if you should have any additional questions or
concerns.
Sincerely,
� r
Alan L. Volbrecht, PLS
q»N p
tBRE ;`l
OF('
�raysv. gy��ceaes�
END OF[)OrjUMFRT