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HomeMy WebLinkAbout103-2. Subdivision Improvement Agreement Amendment.pdf 1 RECORDING REQUESTED BY: CITY OF SARATOGA AFTER RECORDATION RETURN TO: CITY OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 THIS SPACE FOR RECORDER'S USE AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT POSTPONING DEPOSIT OF THE REQUIRED SECURITY, REQUIRING REPOSTING OF SECURITY, AND EXTENDING THE TIME FOR COMPLETING WORKS OF IMPROVEMENT THIS AMENDMENT is entered into effective ________ (“Effective Date”) by and among Warren A. Sturla (hereinafter referred to as “Owner”) and Warren A. Sturla (hereinafter referred to as “Subdivider”) and the City of Saratoga (hereinafter referred to as “City”) with reference to property known as Assessor’s Parcel Number(s): 389-06-002 as described in more detail in Exhibit A hereto (the “Property”). RECITALS WHEREAS, in connection with the development of the subdivision of the Property (hereinafter known as “subject subdivision”), Owner, Subdivider and City entered into a Subdivision Improvement Agreement (the “Agreement”) which requires Subdivider to complete public facilities and other improvements which are a part of or appurtenant to the subject subdivision, including, but without limiting the foregoing, all required grading, erosion control, streets, street lights, utilities, traffic safety devices, paving, curbs and gutters, sidewalks, pathways, bikeways, catch basins, pipes, culverts, storm drains, sanitary sewers, street trees and street signs, water systems and fire hydrants all in accordance with and as required by the plans and specifications for all of said improvements (collectively, the “Works of improvement”), which plans and specifications were prepared by Creegan + D’Angelo, Civil Engineer on behalf of Subdivider and Owner, approved by the City Engineer and now on file in the Public Works Department; and WHEREAS, the Agreement was entered into on May 5, 2005 and recorded with the Santa Clara County Recorder on June 7, 2005 as Document No. 18405729; and WHEREAS, the City and Subdivider agreed to extend the timing of construction of Works of improvement by three (3) years in an Amendment to Subdivision Agreement (“First Amended Agreement”), entered into on September 16, 2008 and recorded with the Santa Clara County Recorder on October 30, 2008 as Document No. 20033343; and 2 WHEREAS, as part of that Agreement, Subdivider was required to post a bond for the Works of improvement to insure that the works was completed; and WHEREAS, Subdivider has not begun the Works of improvement as of the date of this Amendment; and WHEREAS, Subdivider desires to be released from the obligation to post the bond until such time as he begins the Works of improvement; and WHEREAS, the City is agreeable to amending the Agreement to allow the bond to be posted by Subdivider or Subdividers’ successor/s in interest, prior to the commencement of any work whatsoever and prior to issuance of any grading permit or other permit to begin the Works of improvement; and WHEREAS, Subdivider desires to extend the time limit for completing the Works of improvement for three (3) additional years; and WHEREAS, the City is agreeable to amending the Agreement to allow an additional time extension not to exceed another three (3) years to complete the Works of improvement, whereby the Works of improvement must be completed within three (3) years from the date of this agreement or, if the property is sold, within two (2) years from the date of sale, whichever is sooner. NOW, THEREFORE, in consideration of the above RECITALS and the mutual promises and covenants of the parties hereto, the Agreement is amended to read as follows: “1. JOINT AND SEVERAL DUTIES Owner and Subdivider are hereinafter collectively referred to as “Developer” in this Agreement, but each shall remain jointly and severally liable for compliance with the terms of this Agreement. Developer hereby enters into an agreement with City, by the terms of which agreement Developer agrees to have the Works of improvement required by City completed on or before one year from the effective date of this Agreement in accordance with the Saratoga City Code (hereinafter “City Code”) (except as extended by Section 4 of this Amendment).” “3. DEVELOPER’S DUTIES REGARDING IMPROVEMENT WORK Developer hereby agrees that: (a) Prior to Developer commencing work Developer shall provide a Notice of Commencing Work to City. If Developer contemplates requesting a partial release, the Notice of Commencing Work shall include a schedule of work and a cost breakdown for each Work of improvement acceptable to the City Director of Public Works. 3 (b) All Works of improvement shall be constructed by Developer at Developer’s sole cost and expense in accordance with the improvement plans and specifications prepared by Developer’s Civil Engineer as previously approved by the City Engineer in a good and workmanlike manner, in accordance with all City standards, specifications and applicable laws, rules and regulations, to the satisfaction of the Director of Public Works. Developer agrees that the Director of Public Works shall have the right to reject any or all of the work to be performed under this Agreement if such work does not conform with the plans and specifications, City standards, or any applicable law, rule, or regulation; (c) The Works of improvement shall be maintained in good condition and repair and be guaranteed against any defects in material and workmanship for a period of one year from the date of final approval by the City (or such extended period of time thereafter as is necessary to repair any such defects to the satisfaction of the City); (d) Developer shall cause to be made and pay for soil tests conducted by a reputable soils testing laboratory to determine gradation, bearing, and resistance value of soils within the subject subdivision from which to determine the nature of the Works of improvement necessary. Developer shall also cause to be made and pay for all necessary tests including, but not limited to, necessary tests under Section 19 (Earthwork), Section 26 (Aggregate Bases), and Section 39 (Asphalt Concrete) of the most current edition of Standard Specifications issued by the California Department of Transportation as of the Effective Date of this Agreement. (e) Developer shall pay to the City the cost of inspecting the Works of improvement including the costs of staff time and any consulting services determined necessary by the Director of Public Works; (f) There is currently no security posted for the project. Prior to commencement of any work whatsoever and prior to issuance of any grading permit or other permit to begin the Works of improvement, Developer shall furnish to the City the improvement security as required in Section 5 of this Agreement and City Code Section 14-60.020 (g) Developer shall furnish to the City the release, indemnity agreement and insurance coverage required by Section 11 of this Agreement and City Code Section 14- 05.055.” “4. TIMING OF CONSTRUCTION OF WORKS OF IMPROVEMENT Developer hereby agrees to construct all required Works of improvement as follows: (a) As approved by the City Council, all required on-site and off-site improvements shall be complete to the satisfaction of the Director of Public Works prior to the issuance of the final inspection approval for any structure built on any parcel within the subject subdivision by: (1) October 26, 2014, or (2) if the property is sold, two (2) years 4 from the date of sale, as evidenced by recordation of the deed of sale conveying the property, whichever is sooner. (b) All off-site work (if any), shall be done prior to or concurrently with on-site work, unless otherwise expressly specified by the conditions of the tentative map for the subject subdivision, and initialed by the Director of Public Works here ____; (c) The time for completion may be extended by the Director of Public Works in his/her sole discretion, for good cause shown in writing by Developer. The Director of Public Works may, in his/her sole discretion, allow up to three extensions of this Agreement of up to 180 days each, provided that all requirements under this Agreement or imposed by law are met by Developer. Any further extension requires amendment and approval of this Agreement by the City Council; (d) In the event that Developer fails to complete the Works of improvement within the time specified herein, City may complete said work and Developer promises to pay City the full cost and expenses thereof or City may recover the same from Developer, the surety(s) and/or the holder(s) of improvement security, including reasonable attorney fees. City, in its sole discretion, may require Developer, the surety(s), and/or the holder(s) of improvement security to pay City in advance, sufficient monies to cover City’s cost in completing construction of the improvements; and (e) (e) In the event Developer has not completed the required works of improvement within the period of time allowed by this Agreement (including any duly obtained extensions), Developer shall not proceed further with any work of improvement unless and until approval to do so is obtained from the City. The City reserves the right, upon each renewal, to increase the security amounts to reflect increases in material, labor and equipment prices. Notwithstanding the foregoing, it is understood that in the event the Developer fails to complete any work of improvement within the required period of time that the City may proceed against the securities required by Section 5 of this Agreement, [this change is to make clear what we mean by “securities” – I believe they are all in section 5. If not, there may be another way to get the clarity I am looking for.] to obtain completion of such work of improvement, or may initiate proceedings to revert the subdivided property to acreage. “5. SECURITY (a) There is currently no security posted for the project. Prior to commencement of any work whatsoever and prior to issuance of any grading permit or other permit to begin the Works of improvement, Developer, or Developer’s successors or assigns, as provided for in Section 24, shall furnish to City good and sufficient security for: (1) faithful performance and guarantee of the work; and (2) payment of contractors, subcontractors and persons furnishing labor, materials or equipment. 5 (b) The security shall be one or more of the following forms at the option of, and subject to approval by, the City: (1) A bond (or bonds) of a duly authorized corporate surety in the forms attached hereto as Exhibits B and C respectively, each issued by a corporate surety duly authorized to transact business in the State of California (“State”); or (2) A deposit held by the City in cash or, if approved by the City Manager, negotiable bonds of the kind approved for securing deposits of public monies; or (3) An instrument of credit from an agency of the State, Federal or local government when any agency of the State, Federal, or local government provides at least twenty percent (20%) of the financing for the portion of the act or agreement requiring security, or from one or more financial institutions subject to regulation by the State or Federal government and pledging that the funds necessary to carry out the act or agreement are on deposit and guaranteed for payment, or a letter of credit or set aside letter issued by such a financial institution. The form and content of such instrument, letter of credit or set aside letter shall be subject to prior approval by the City Attorney; or (c) The security furnished by the Developer shall be in the following amounts and for the following purposes: (1) An amount equal to one hundred percent (100%) of the total estimated cost of the improvement or of the act to be performed, as determined by the Director of Public Works, securing faithful performance of the Works of improvement and guaranteeing against any defective work or labor done or defective materials furnished (herein “the Faithful Performance Security”). Liability upon the Faithful Performance Security shall both include, and be limited to the matters specified in Section 66499.9 of the California Government Code; and (2) An amount equal to one hundred percent (100%) of the total estimated cost of the Works of improvement as determined by the Director of Public Works, securing payment to the contractor, the subcontractors, and persons furnishing labor, materials or equipment for the Works of improvement or the performance of the required act(s) (herein “the Payment Security”); (3) As part of the obligation guaranteed by each security and in addition to the face amount of the security, there shall be included costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing the obligation secured; and (4) At least ten percent (10%) of the Faithful Performance Security and Payment Security shall be provided in the form of a deposit held by the City in cash. (d) The Faithful Performance Security required under this Section shall remain in full force and effect for a period of one year following the completion of the work as continuing security for the Developer’s guarantee against any defective work or labor done or defective materials furnished, and thereafter until all deficiencies in construction, maintenance and repair have been corrected to the satisfaction of the Director of Public Works and final acceptance of all work is granted by the City 6 Council. Upon completion of the work, the Director of Public Works may, in his or her discretion, permit the Developer to reduce the amount of such Security if the Director of Public Works determines that a lesser amount will be sufficient to secure the Developer’s obligation to correct any defects in workmanship or materials. (e) The Payment Security required under this Section shall, after final acceptance of the work and passage of the time within which claims of lien or nonpayment are required by law to be recorded, be reduced to an amount equal to the total claimed by contractors, subcontractors and all persons for whom claims of lien or nonpayment have been properly recorded and timely notice thereof given in writing to the City, and if no such claims have been recorded, the Payment Security shall be released in full. The reduction or release of security authorized herein shall not apply to any amount deemed by the City Manager to be necessary as security for costs, expenses and fees, including reasonable attorneys’ fees that may be incurred by the City as a result of any breach of this improvement Agreement by the Developer. (f) If the required improvements are financed and installed pursuant to a special assessment proceeding and the contractor has furnished a Faithful Performance Security and Payment Security as required by the special assessment act pursuant to which the improvements are being constructed, the improvement securities required under this Section may, in the sole discretion of the Director of Public Works be reduced by an amount corresponding to the amount of such securities so furnished by the contractor. (g) Any damage to Works of improvement or property as provided in Section 11 of this Agreement that occurs during or within one year after completion of the Works of improvement shall be completely repaired to the satisfaction of the Director of Public Works by Developer before release of improvement security. (h) Each security required in order to comply with this Agreement shall be maintained in full force and effect unless and until the obligation to provide such security is released, or partially released by the Director of Public Works in writing. (i) Release of each security by City shall be in compliance with Section 66499.7 of the California Government Code. (j) Where the performance of an obligation for which a security is required is subject to the approval of another agency, the City shall comply with Section 66499.8 of the California Government Code.” 24. MODIFICATION AND COMPLETE UNDERSTANDING; BINDING ON SUCCESSORS AND ASSIGNS; RUNS WITH PROPERTY; ORIGINAL DEVELOPER PRIMARILY LIABLE This Agreement sets forth the complete understanding of the parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties in connection with the subject matter thereof. No supplement, modification, discharge, 7 waiver or termination of this Agreement or any provisions hereof shall be binding unless executed in writing by the parties to be bound thereby. This Agreement shall be binding upon the successors and assigns of each of the parties. Developer shall inform potential buyers of parcels of land created by the underlying subdivision of the obligations on successors and assigns created by this Agreement, including the fact that there is currently no improvement security posted for the project. Developer shall inform potential buyers that successors and assigns must furnish to the City the improvement security as required in Section 5, prior to commencement of any work whatsoever and prior to issuance of any grading permit or other permit to begin the Works of improvement. Developer shall also inform potential buyers that the Works of improvement must be completed by (1) October 26, 2014, or (2) two (2) years from the date of sale, as evidenced by recordation of the deed of sale conveying the property, whichever is sooner. Developer shall provide a copy of the original executed Agreement and all Amendments to this Agreement (including this Amendment) to each potential buyer. Developer agrees to provide City with acknowledgment of his/her disclosure to each potential buyer of their rights and responsibilities under this Agreement pursuant to the form provided in Exhibit F. Developer agrees that the sale of all or part of the lands of the underlying subdivision does not automatically transfer from or in any way relieve the Developer of the duties to perform or the security obligations of this Agreement. Those duties to perform and security obligations attach to Developer as of the Effective Date of this Agreement and remain until all obligations of Developer under this Agreement are fulfilled or transferred by substitution of a replacement agreement and replacement securities acceptable to the City.” Except as specifically provided in this Amendment, all terms of the Agreement shall remain in full force and effect. To the extent there is any conflict between the Amendment and the Agreement, the terms of the Amendment shall control. 8 IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereto on __________, 2011. Date __________ Owner: WARREN A. STURLA ____________________________________ Date___________________ Subdivider WARREN A. STURLA ____________________________________ Date__________________ City CITY OF SARATOGA By: __________________________ Dave Anderson City Manager INSTRUCTIONS This Agreement shall be recorded. Owner(s) and Subdivider(s) signature(s) must each be acknowledged by a notary. Inform the notary that the acknowledgement is for an instrument to be recorded (California Civil Code §1169, et seq.) ACKNOWLEDGEMENT STATE OF CALIFORNIA _____________________________) COUNTY OF _______________________________________) 9 On ___________, 2___, before me, _____________________________________, personally appeared ______________________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity as Subdivider, and that by his/her signature on the instrument, the person, or the entity on behalf of which the person acted, executed the instrument. Witness my hand and official seal. Signature ___________________________________ [Seal]