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HomeMy WebLinkAbout102-Attachment A � San Jose Subdivision Improvement Agreement (SIA).pdf Multiple les are bound together in this PDF Package.Adobe recommends using Adobe Reader or Adobe Acrobat version 8 or later to work with documents contained within a PDF Package. By updating to the latest version, you’ll enjoy the following benets: • Ecient, integrated PDF viewing • Easy printing • Quick searches Don’t have the latest version of Adobe Reader? Click here to download the latest version of Adobe ReaderIf you already have Adobe Reader 8, click a le in this PDF Package to view it. From:Jonathan WittwerTo:Michael Taylor; "Richard S. Taylor"; Subject:SJ Env WarrantyDate:Wednesday, March 09, 2011 4:11:17 PMHere is SJ language including Exhibit D at bottom. 12. Environmental Warranty. a. Prior to the acceptance of any dedications or Public Improvements by City, Subdivider shall provide City with a written warranty in a form substantially similar to Exhibit 􀂳D,􀂴 attached hereto and incorporated herein by reference, that: (1) 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 the environmental laws relating to the property to be dedicated. (2) Neither Subdivider nor any other person with Subdivider􀂶s permission to be upon the property to be dedicated shall 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. For the purposes of this Agreement, the term 􀂳Hazardous Substances􀂴 shall mean any substance or material which is capable of posing a risk of injury to health, safety or property, including all those materials and substances designated as hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or policy, including but not limited to, all of those materials and substances defined as 􀂳Toxic Materials􀂴 in Sections 66680 through 66685 of Title 22 of the California Code of Regulations, Division 4, Chapter 30, as the same shall be amended from time to time, or any other materials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies. (3) 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 substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. (4) 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. b. Subdivider shall give prompt written notice to City of: (1) 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. (2) 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 (3) 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. EXHIBIT 􀂳D􀂴SUBDIVISION IMPROVEMENT AGREEMENT ____________________________________________________________________________ (Subdivision/Unit No.) __________________________________________(Subdivider) ENVIRONMENTAL WARRANTY As a condition precedent to acceptance of the dedications and public improvements to be conveyed by the above-named Subdivider to the City of San Jose for the above-referenced Subdivision, Subdivider hereby warrants to the City of San Jose that:1. 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 the environmental laws relating to the property to be dedicated.2. Neither Subdivider nor any other person with Subdivider􀂶s permission to be upon the property to be dedicated has used, generated, manufactured, produced, or released, on, under, or about the property to be dedicated, any Hazardous Substance except in compliance with all applicable environmental laws. For the purposes of this warranty, the term 􀂳Hazardous Substances􀂴 shall mean any substance or material which is capable of posing a risk of injury to health, safety or property, including all those materials and substances designated as hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or policy, including but not limited to, all of those materials and substances defined as 􀂳Toxic Materials􀂴 in Sections 66680 through 66685 of Title 22 of the California Code of Regulations, Division 4, Chapter 30, as the same shall be amended from time to time, or any other materials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies.3. 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.4. 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.5. All persons executing this warranty hereby represent and warrant to the City of San Jose, and Subdivider hereby represents and warrants, that the signators hereto have the legal power, right and authority to execute this warranty on behalf of the Subdivider and that the signators hereto have sufficient knowledge or expertise, either personally, through reasonable inspection and investigation of the property, or through reasonable reliance upon the investigation and professional opinion of Subdivider􀂶s environmental experts, to make the representations herein, and that no consent of any other party is required to execute this warranty and make the representations herein on behalf of the Subdivider to the City of San Jose. Each of the undersigned persons declares under penalty of perjury that the foregoing is true and correct.Dated: _________________________ SUBDIVIDER*: By: ________________________________________ Title: _______________________________________ By: _________________________________________ Title: _______________________________________ *Proof of authorization for Subdivider􀂶ssignatures is required to be submittedconcurrently with this environmental warranty. 18. Indemnity/Hold Harmless. City or any officer, employee or agent thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Subdivider, its agents, employees, contractors and subcontractors in the performance of this Agreement. Subdivider further agrees to protect, defend, indemnify and hold harmless City, its officials, boards and commissions, and members thereof, agents, and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of Subdivider, its agents, employees, contractors and subcontractors in the performance of this Agreement, except for such claims, demands, causes of action, liability or loss arising out of the sole active negligence of the City, its officials, boards, commissions, the members thereof, agents and employees, including all claims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design or construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said Subdivision, and the public improvements as provided herein, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design and construction of public drainage systems, streets and other improvements. Recordation of the Notice of Acceptance by the City of the improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this Section. City shall not be responsible for the design or construction of the property to be dedicated or the improvements pursuant to the approved Improvement Plans or map, regardless of any negligent action or inaction taken by the City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Subdivider submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After recordation of the Notice of Acceptance of the Public Improvements, the Subdivider shall remain obligated to eliminate any latent defect in design or dangerous condition caused by the design or construction defect; however, Subdivider shall not be responsible for routine maintenance. The provisions of this paragraph shall remain in full force and effect for ten (10) years following the recordation of the Notice of Acceptance by the City of the improvements. It is the intent of this section that Subdivider shall be responsible for all liability for design and construction of the improvements installed or work done pursuant to this Agreement and that City shall not be liable for any negligence, nonfeasance, misfeasance or malfeasance in approving or reviewing any work or construction. The improvement security shall not be required to cover the provisions of this Paragraph. Subdivider shall reimburse the City for all costs and expenses, including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs, incurred by City in enforcing this Section.