HomeMy WebLinkAbout1993-019 Camino Real Fashion Outlets Amt. w/ Golden West rlove tract No. 93019
AGREEMENT FOR THE ACQUISITION OF
IMPROVEMENTS
CITY OF ATASCADERO
CAMINO REAL IMPROVEMENT PROJECT
THIS AGREEMENT is made and entered into this day of1993,
by and between the City of Atascadero, a municipal corporation of the ate o 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.
5. The City Council adopted Resolution 70-93 on June 22, 1993, approving
the form of the "Agreement for Acquisition of Public Improvements" and authorized the
City Manager to sign said Agreement on behalf of the City.
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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.
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(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. Proof of publication shall be provided to the
City. Said sealed proposals shall be delivered to the City Clerk and opened at the
office of the City Engineer at City Hall, 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 receipt of bids, can agree to perform the work
himself at a price not exceeding the lowest responsible bid. The contractor shall
be approved by the City prior to award of contract and shall be licensed in the
State of California to do the type of work called for in the approved plans and
specifications. Said approval shall not be unreasonably withheld. 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 by the Developer 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,
and certification by the Developer's engineer that all improvements have been
constructed in substantial conformance with the plans and specifications. All
warranties, guarantees or other evidence of contingent obligations of third persons
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with respect to such Improvements shall be delivered to the City Engineer prior to
the City's acceptance thereof. All improvements shall be in conformance with
and satisfy the project conditions of approval as specified in Conditional Use
Permit 04-91 and tentative parcel map 07-91 or approved modifications thereto,
prior to final acceptance.
(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 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, as shown in Exhibit "B".
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 contract 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. All contracts for engineering, surveying or construction
management shall be reviewed by the City Engineer to verify compliance with the
specifications in the bid documents and with Exhibit "B".
e. Payments to Developer. Once monthly the Developer may request
in writing a partial payment for improvements constructed in accordance with
Exhibit "B", in a format and procedure to be approved by the City Engineer and
the City Finance Director. Such payment requests shall include only those items
constructed and completed in accordance with the plans and specifications.
Where such a construction is substantially complete but lacks incidental items
such as final testing or cleanup, the payment request should reflect a percentage
of completion as the basis for payment. All such payment request for
construction shall be subject to approval by the City Engineer who shall issue a
cost certificate to the Finance Director to substantiate payments from the
improvement fund from available bond proceeds. Such partial payments made by
the Assessment District shall not be construed as acceptance of the improvement
by the City, which shall not occur until completion of that project phase and final
acceptance by the City Council. No separate payments will be made for material
only. The City shall retain an amount equal to 10% of the approved amount of
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each payment made. The 10% retention will be released for the project (or
approved phase of the project) according to the following procedure:
(1) The City Engineer will perform the final inspection of the project or
approved phase.
(2) The Developer shall complete any deficient items to the satisfaction
of the City Engineer.
(3) Upon completion of all construction items, the City Engineer will
issue a statement that the work has been completed to the City Engineer's
satisfaction.
(4) The Developer shall prepare and record a Notice of Completion for
the project or approved phase.
(5) The Developer or the subcontractor constructing the improvements
shall post the required 10% maintenance guarantee for the project or approved
phase.
(6) The City Council shall accept the improvements effective thirty five
(35) days after the recording of the Notice of Completion as long as no liens or
claims are filed during that time period.
(7) The final payment will then be made thirty five (35) days after
recordation of the Notice of Completion and the project will be formally accepted
by the City.
The Developer may construct the project in phases by separate contracts as
approved by the City Engineer. Payment requests by the Developer may include
incidental items as defined in Exhibit "B" including engineering, staking, testing, etc. All
such pay requests shall be accompanied by original invoices based on contracts
reviewed by the City Engineer in accordance with Exhibit "B".
Notwithstanding the above, the total amount of payments approved by the City
shall not exceed the purchase price for the total of all the improvements to be acquired
hereunder as listed in Exhibit "B". The City shall acquire the improvements and accept
them in one or more phases provided they have been constructed in substantial
conformance with the plans and specifications.
6. Ownership and Transfer of Improvements. The provision for conveyance
of the Improvements to the City shall take place as follows:
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(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
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
from 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
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policy, the cost of any special endorsements, the cost of any special
endorsements, the cost of recording necessary documents and any escrow fees.
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
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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
thirty (30) 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
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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 suit by either party
against the other arising out of this Agreement, the party is 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.
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, nation 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.
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15. Conflict of Interest. The 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
(b) Contract for the acquisition of goods or services for more
consideration that 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 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 the 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;
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(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.
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:
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Developer: By: CAMINO REAL FASHION OUTLET, LTD
GOLDEN WEST DEVELOPMENT CORP.
7627 Morro Road
Atascadero, California 93423
City: City Engineer
City of Atascadero
6500 Palma Avenue
Atascadero, California 93422
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CITY OF ATASCADERO, for itself and
on behalf of Camino Real Improvement
Project Assessment District
6y:
City Manager
ATTEST: I
City Jerk
Approved as to form:
City Attorney i" t
By:
Approved as to content Richard K. Shannon
Chief Financial Officer
By: ---
City Engin era mes H. MiI6r,-Jr.
Chief Executive Officer
m°
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