HomeMy WebLinkAbout2017-008 8570 Corte Subdivision Agmt. CITY OOF ATA, ADER
CONTRACT#
NO FEE DOCUMENT
Government Code § 6103
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF ATASCADERO
6500 Palma Avenue
Atascadero, CA 93422
Attention: City Clerk
SUBDIVISION IMPROVEMENT AGREEMENT
This Subdivision Improvement Agreement("Agreement") is made and entered into this
9th day of May,2017, ("Effective Date")by and between the City of Atascadero, a municipal
corporation,hereinafter referred to as"City,"and 8570 Corte LLC, a California limited liability
company,hereinafter referred to as"Subdivider."
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
2802, 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 Attachment
64A.19
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
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by the City Manager or the City Manager's designee (hereinafter"City Manager") due to errors,
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 Three Hundred Twenty Thousand, Seven Hundred Dollars
($320,700.).
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 or the designee 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. InjM to Public Improvements,Public PropeLty Propertyor 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
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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
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. Time for 'Completion of Performance. The Work on the Required Improvements
shall be completed within three years of the Effective Date of this Agreement. (hereafter
"Completion Date"). 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 City Manager may extend
the Completion Date for a maximum of two years. Any extensions of the Completion Date by
the City Manager shall be in the sole and complete discretion of the City Manager. All other
extensions of the Completion Date shall be made only by the City Council. Extensions shall be
granted only upon a showing of good cause by the Subdivider at a City Council meeting. Any
extensions of the Completion Date by the City Council shall be in the sole and complete
discretion of the City Council.
b. Requests for extension of the 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 for 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
waived notice of any such extensions and 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. Utili . Undergtirounding 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:
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a. Faithful Performance Security. Subdivider shall provide faithful
performance security as set forth in the Atascadero Municipal 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 Improvements, 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.
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 Three Thousand Two Hundred Fifty Dollars $( 3,250),to
guarantee and secure the placement of such monuments.
C. 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 Luis 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.
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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. AU partial or complete release of any security must be approved by the City Council.
Any partial or complete release that has not been approved by the City Council shall be null and
void.
b. All releases of security shall be in conformity with California Government Code
Section 66499.7.
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.
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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
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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 A:NII.
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(3 0),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
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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 1861, 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 Liabili1y 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.
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(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-Iiability).
(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.
The City reserves the right to accept any street improvement without accepting
any obligation to maintain the streets.
18. Re air 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,
Subdividershall 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. If the Subdivider fails to comply
with the provisions of this Paragraph, then the Surety shall be required to do so.
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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(I5) days from receipt of written notice by City to cure
any default.
21. Breach of Aueement; Performance"By Surety or City. In the event Subdivider is
in default under this Agreement, and the applicable cure period set forth in paragraph 20. 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-necessarytherefore. 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 accepts the
Required Improvements.
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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
6500 Palma Avenue
Atascadero, CA 93422
Notices required to be given to Subdivider shall be addressed as follows:
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.
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Nothing in this paragraph shall be construed as authorizing or granting an
extension of time to Subdivider for completion of the Required Improvements. Nothing in this
Paragraph shall be construed as requiring the City to accept any street improvements for
maintenance.
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 Vesting of 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 Ci1y. 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. Inte ram. This Agreement is an integrated agreement. It supersedes all prior
negotiations, representations, or agreements, either written or oral.
12
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as follows:
CITY OF ATA AD 0
By: 1
Tom O'Ma ey, Mayor
A EST:
oara 'stens 1 rk
APPROVED AS TO FORM:
Brian A. Aferi , City Attorney
SUBDIVI
By:
8570 Corte,LLC/, a California limited liability company
Barry Ephraim, , anager
13
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Los Angeles )
OnA"ci 16, before me, Mark C. Glode Notary Public
(insert name and title of the officer)
personally appeared t1
who proved to me on the basis of satisf ctory evidence to be he pe sons)whose name(s) is/are
subscribed to the'within instrument and-acknowledged to me that-helshe/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures)on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS m ha and ficial sea NOWY Pub"-Calltornia i
y Los Angeles County r
z ' Commission #2173049
o My COMM tx0ires 4ec�18y 2020
------------------------------
Signatur (Seal)
MARK C.GiODE
a Notary Public-California
Z ' los Angeles County Z
Commission#2173049 a
My Comm.Expires oec 18,2020
BOND NO. 3812185
PREMIUM: $3,207.00/1 Year
1st Term Premium Fully Earned
FAITHFUL PERFORMANCE BOND
WHEREAS,the City Council of the City of Atascadero, State of California, and 8570
Corte LLC, a California limited liability company (hereinafter designated as "principal") have
entered into an agreement whereby principal agrees to install and complete certain designated
public improvements, which said agreement identified as Tract 2802 , is hereby referred
to and made a part hereof, and
WHEREAS, said principal is required under the terms of said agreement to furnish a
bond for the faithful performance of said agreement.
NOW, THEREFORE, we, the principal and Developers Surety and Indemnity Company,
as surety, are held and firmly bound unto the City of Atascadero (hereinafter designated as
"City"), in the penal sum of Three Hundred Twenty Thousand, Seven Hundred Dollars
($320,700. lawful money of the United States, for the payment of which sum well and truly to
bemade,we bind ourselves, our heirs, successors, executors and administrators,jointly and
severally,firmly by these presents.
The condition of this obligation is such that if the above bounded principal, his or its
heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by,
and well and truly keep and perform the covenants, conditions and provisions in the said
agreement and any alteration thereof made as therein provided, on his or their part, to be kept
and performed at the time and in the manner therein specified, and in all respects according to
their true intent and meaning, and shall indemnify and save harmless City, its officers, agents and
employees, as therein stipulated,then this obligation shall become null and void; otherwise it
shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified
therefor, there shall be included costs and reasonable expenses and fees, including reasonable
attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as
costs and included in any judgment rendered.
The surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in anywise affect its obligations on this bond, and it
does hereby waive notice of any such change, extension of time, alteration or addition to the
terms of the agreement or to the work or to the specifications.
IN WITNESS WHEREOF, this faithful performance bond has been duly executed by
the principal and surety above named, on April 13 , 2017.
Developers Surety and Indemnity Company _ 8570 Corte, LLC
Name of Surety Principa
By. n.
Title:
17773.Cowan,Suite 100, Irvine CA 92614
Mailing Address of Surety and
714-784-5632 By:
Telephone No. of Surety Title:
By: APR 1 3 2017
Attorney in Fact-Edward N. Hackett
NOTE: If principal is a partnership, all partners should execute the bond.
IMPORTANT: Surety companies executing bonds must appear on the Treasury
Department's most current list(Circular 570 as amended) and be authorized to transact business
in California.
NOTICE: The signature of the Surety on this bond must be acknowledged before a
notary public, and this bond must be accompanied by evidence that the appointment as attorney
in fact has been recorded in San Luis Obispo County.
MANDATORY: The Surety shall be authorized and licensed by the California
Insurance Commissioner as an"admitted surety insurer."
APPROVAL: Bonds must be approved by City.
REQUEST TO INSURER TO SUBMIT DOCUMENTS: Execution of this document
shall constitute the City's formal request to the insurer to provide the City with an original of a
certificate from the clerk of San Luis 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.
POWER OF ATTORNEY REQUIRED. The Attorney-in-Fact (resident agent) who
executes this bond on behalf of the surety company must attach a copy of his 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.
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other of completing this certificate verified only the identity of the individual who signed
Sttitcof i.afifqtlib the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
CQUIlv-pr Orange
011, APR 13 2017Public
�'!!-foro Ille, C. Maestas,Notary
pqr4on'111Y-o P wuW Edward N.-Hackett
031 the 4�jsi.S of'. elitetor ish,re 50'seethe
Nyho. my-go.to me �Y. -evide 1pe to be the PeTsPn6)'W d be
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p
Commission#2117336 V
...........
.................. 114otary Public-California 'z
1n)y1halid,; idApal. war>t
Orange County
My Comm.Expires Jul 24,20191,
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.............
AbDAIDNALOOTIONAL tNF(jR'iV1.A TiON
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ter 61 IIIJ iCIVIC title or lyjic ofanuchcrl ilocnntclit,nii
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a
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO Box 19725,IRVINE,CA 92623 (949)263-3300
KNOW ALL BY THESE PRESENTS that except as expressly limited,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,do each
hereby make,constitute and appoint:
—Christine M.Maestas, Edward N. Hackett,jointly or severally"'
as their true and lawful Attomey(s}in-Fact,to make,execute,deliver and acknowledge,for and on behalf of said corporations,as sureties,bonds,undertakings and contracts of
suretyship giving and granting unto said Attomey(s)-in-Fact full power and authority to do and to perform every act necessary,requisite or proper to be done in connection therewith as
each of said corporations could do,but reserving to each of said corporations full power of substitution and revocation,and all of the acts of said Attomey(s)-in-Fact,pursuant to these
presents,are hereby ratified and confirmed.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY
AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,effective as of January 1st,200B.
RESOLVED,that a combination of any two of the Chairman of the Board,the President,Executive Vice-President,Senior Vice-President or any Vice President of the
corporations be,and that each of them hereby is,authorized to execute this Power of Attorney,qualifying the attomey(s)named in the Power of Attomey to execute,on behalf of the
corporations,bonds,undertakings and contracts of suretyship;and that the Secretary or any Assistant Secretary of either of the corporations be,and each of them hereby is,authorized
to attest the execution of any such Power of Attorney;
RESOLVED,FURTHER,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any such
Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond,undertaking
or contract of suretyship to which it is attached.
IN WITNESS WHEREOF,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by
their respective officers and attested by their respective Secretary or Assistant Secretary this 61h day of February,2017.
w.•� .,.a.:.u.....y
By: �,T ��. �,� ,1,o''..,. QR.4Pf+N'Y13i;'
Daniel Young,Senior Vice-President ?y� R4aRpe�TFa��y
1936
BY: O�tii
Mark Landon,Vice-President
�IFU-0
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
County of Orange
On February 6,2017 before me, Lucille Raymond,Notary Public
Date }sere Insert Name and Title of the Mur
personally appeared Daniel Young and Mark Lansdon
Na*s)W Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)islare subscribed
to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized
capacity(ies),and that by hislherltheir signature(s)on the instrument the person(s),or the entity upon behalf of
LUCILLE RAYMOND which the person(s)acted,executed the insWment
Commission s 2081945
Notify Public-California I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
Z Orange County true and correct.
M Comm.E ares Oct 13,2018
WITNESS my hand and official seal.
i
Place Notary Seal Above Signature
Lucill R y ond,Notary Public
CERTIFICATE lI
The undersigned,as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA,does hereby
certify that the foregoing Power of Attorney remains in full force and has not been revoked and,furthermore,that the provision of the resolutions of the respective Boards of Directors of
said corporations set forth in the Power of Attorney are in force as of the date of this Certificate.
� , �PANY
This Certificate is executed in the City of Irvine,California,this da of �,.•��y AND,yo., ��� Or
APR 1 3 7,017
By: 'a 1936 = 2 z °X6;5
Cassie J: msford,Assistant Se tary
/FOP
ATS-1002(02117)
BOND NO. 381218S
Premium Included in charge for Performance Bond
PAYMENT BOND
WHEREAS,the City Council of the City of Atascadero, State of California, and 8570
Corte LLC, a California limited liabilfty company (hereinafter designated as "principal") have
entered into an agreement whereby principal agrees to install and complete certain designated
public improvements, which said agreement identified as Tract 2802 , is hereby referred to and
made a part hereof; and
WHEREAS, Under the terms of said agreement, principal is required before entering
upon the performance of the work, to file a good and sufficient payment bond with the City of
Atascadero to secure the claims to which reference is made in the Civil Code of the State of
California.
NOW, THEREFORE, said principal and the undersigned as corporate surety, are held
firmly bound unto the City of Atascadero and all contractors, subcontractors, Iaborers,
materialrnen and other persons employed in the performance of the aforesaid agreement and
referred to in:the Civil Code of the State of Californiwin the sum of One Hundred Sixty
Thousand, Three Hundred Fifty Dollars160 350.) lawful money of the United States, for
materials furnished or labor thereon of any kind, or for amounts due under the Unemployment
Insurance Act with respect to such work or labor, that the surety will pay the same in an amount
not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond,
will pay, in addition to the face amount thereof, costs and reasonable expenses and fees,
including reasonable attorney's fees, incurred by City in successfully enforcing the obligation,to
be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment
therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any
and all persons, companies and corporations entitled to file claims under the Civil Code of the
State of California, so as to give a right of action to them or their assigns in any suit brought
upon this bond.
Should the condition of this bond be fully performed,then this obligation shall become
null and void, otherwise it shall be and remain in full force and effect.
The surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the agreement or the specifications accompanying the same shall in any
manner affect its obligations on this bond, and it does hereby waive notice of any such change,
extension, alteration or addition.
IN WITNESS WHEREOF, this payment bond has been duly executed by the principal
and surety above named, on April 13 , 2017.
Developers Surety and Indemnity Company _ 8570 Corte, LLC
Name of'Surety Princip
By:
41-.(
Title: 1
17771 Cowan,Suite 100,Irvine CA 92614
Mailing Address of Surety and
714-784-5632 By:
Telephone No. of Surety Title:
By: APR, 132017
Attorney in Fact-Edward N. Hackett
NOTE: If principal is a partnership, all partners should execute the bond.
IMPORTANT: Surety companies executing bonds must appear on the Treasury
Department's most current list(Circular 570 as amended) arid be authorized to transact business
in California.
NOTICE: The signature of the Surety on this bond must be acknowledged before a
notary public, and this bond must be accompanied by evidence that the appointment as attorney
in fact has been recorded in San Luis Obispo County.
MANDATORY: The Surety shall be authorized and licensed by the California
Insurance Commissioner as an"admitted surety insurer."
APPROVAL: Bonds must be approved by City.
REQUEST TO INSURER TO SUBMIT DOCUMENTS: Execution of this document
shall constitute the City's formal request to the insurer to provide the City with an original of a
certificate from the clerk of San Luis 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.
POWER OF ATTORNEY REQUIRED. The Attorney-in-Fact(resident agent) who
executes this bond on behalf of the surety company must attach a copy of his 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.
. i
CALIFORNIA .ANLL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verified only the identity of the individual who signed
State of Q.thfornia the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
County of Orange
AH 113 2011
O1. before int;;_ C. Maestas,Notary Public ;
(Isere ins,:rrnamdand iiih.0ribe-01T1t:I
personally appeared Edward N. Hackett ,
ryhq prgve41 to nip•on the blsis of-Satisfactory:evidenc.e to br;:the pei.•son(o.--%yhpse-naniew Mtn;sttbsciilieci to--the
witiiih instAhhent add .96kn6wiedgeii to :rtid; 'that lichht/tt •execd6d A* sante` in authorized
capacity{ie 3;snd that:.by his ter 3li,rrr-sia)Zat�uge 4 on:;elle it srrument the-pets iiEs or the entity upg�a.liel alf'of�tiYltich
thepersoi>).acted,-executeddie.iitsmitneriL
[:ceiti y, liiddr PEIVALIY'-OF f?ERJURY that the'fci a iii pais bt�iph is tiue
ald eoiect. .
tit C.MAESTAS
Commission'-9 2117336
+ k;. Notary Public-California
• TTNiE�S:S�niy tai>!.d and�t'fl_rial.seal,. Z���,
�. �i � � Orange County
My Comm.Expires Jul 24,2016
(isalu:y:5cal}'
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POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO Box 19725,IRVINE,CA 92623 (949)263-3300
KNOW ALL BY THESE PRESENTS that except as expressly limited,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,do each
hereby make,constitute and appoint:
"'Christine M. Maestas, Edward N.Hackett,jointly or severally—
as their We and lawful Attomey(s)-in-Fact,to make,execute,deliver and acknowledge,for and on behalf of said corporations,as sureties,bonds,undertakings and contracts of
suretyship giving and granting unto said Attomey(s}in-Fact full power and authority to do and to perform every act necessary,requisite or proper to be done in connection therewith as
each of said corporations could do,but reserving to each of said corporations full power of substitution and revocation,and all of the acts of said Attomey(s)-h-Fact,pursuant to these
presents,are hereby ratified and confirmed.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY
AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,effective as of January 1st,2008.
RESOLVED,that a combination of any two of the Chairman of the Board,the President,Executive Vice-President,Senior Vice-President or any Vice President of the
corporations be,and that each of them hereby is,authorized to execute this Power of Attorney,qualifying the attomey(s)named in the Power of Attorney to execute,on behalf of the
corporations,bonds,undertakings and contracts of suretyship;and that the Secretary or any Assistant Secretary of either of the corporations be,and each of them hereby is,authorized
to attest the execution of any such Power of Attorney;
RESOLVED,FURTHER,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any such
Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond,undertaking
or contract of suretyship to which it is attached.
IN WITNESS WHEREOF,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by
their respective officers and attested by their respective Secretary or Assistant Secretary this 5th day of February,2017.
Algt,,,,
By. `,J ,oS�ORa1NGO�p.POI}��
Daniel Young,Senior Vice-President :\ 'Fo��_- U0 4>�
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By. Mark Lansdon,Vice-President ."����3?LrFOa
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
County of Orange
On February 6,2017 before me, Lucille Raymond,Notary Public
Date Here Insert Name and Tula or the Officer
personally appeared Daniel Young and Mark Lansdon
Name(s)of Signers)
who proved to me on the basis of satisfactory evidence to be the person(S)whose name(s)islare subscribed
to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheirauthorized
capacity(ies),and that by hislherltheir signature(s)on the instrument the person(s),or the entity upon behalf of
LUCILLERAYMOND which the person(s)acted,executed the instrument.
_ Comtnlssion*20B194S
a =+ Notary Public-California I certify under PENALTY OF PERJURY under the laws of the State of Calffomia that the foregoing paragraph is
Z Orange County We and correct
M Comm.Expires Oct 13,2018
WITNESS my hand and official seat, �.
Place Notary Seal Above Signature
Lucilley ond,Notary Public
CERTIFICATE
The undersigned,as Secretary or Assistant Secretary of DEVELOPERS SURETYAND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA,does hereby
certify that the foregoing Power of Attorney remains in ruff force and has not been revoked and,furthermore,that the provisions of the resolutions of the respective Boards of Directors of
said corporations set forth in the Power of Attorney are in force as of the date of this Certificate.
This Certificate is executed in the City of Irvine,California,this day of �,.A'q AND 14" p1�PANy0�.
J`t r'opsoRej;Fy pPPOR1 0
--B APR 13 2017 � 1936 i s � �G ocf s o9�
Cassie J: rrisford,Assistant Se Lary9trFO
ATS-1002(02117) o