HomeMy WebLinkAboutEvershineSUBDIVISION IMPROVEMENT AGREEMENT
BETWEEN TOWN OF LOS ALTOS HILLS AND
EVERSHINE III L,P., FOR THE DEER CREEK LANE SUBDIVISION
THIS AGREEMENT dated August 023 —5 201 9, is by and
between the Town of Los Altos Hills, a municipal corporation, hereinafter designated
"Town" and Evershine III L.P., hereinafter designated "Subdivider."
RFCITATS,
1. * Subdivider has presented to Town for approval final Subdivision maps,
hereinafter designated "Maps," entitled BEING A SUBDIVISION OF PARCEL I OF
TRACT NO. 10067, FILED AUGUST 7, 2013 IN BOOK 863 OF MAPS PAGES 38-41
INCLUSIVE, OFFICIAL RECORDS, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA.
2. Subdivider. has requested -approval of the -maps prior to -the -construction
and completion of 'improvements, including all streets, highways, and public ways and
public utility facilities which are a part of, or appurtenant to, the Subdivision designated
in the maps, all in accordance with, and as required by, the plans and specifications for all
or any of the improvements in, appurtenant to, 014 outside the limits of the Subdivision,
which plans and specifications are described in Exhibit A attached to and 'incorporated
herein, hereinafter "plans" and are now on file in the Office of the City Engineer of the
Town; and
3. The City Council of the Town of Los Altos Hills on August 21, 2019,
adopted Resolution No. L/9''T. =_approving the map and accepting the dedications
therein offered for street and highway -purposes and public facility and utility
easements, except for those dedicated to other agencies, persons, partnerships,
associations or corporations, on the condition that Subdivider first enter into and
execute this Agreement with Town and meet the requirements of the Resolution; and
4. This Agreement is executed pursuant to the provisions of the Subdivision
Map Act of the State of California and Title 9 of the Los Altos Hills Municipal Code; and
NOW, THEREFORE, for and in consideration of the approval of the maps and
of the acceptance of the dedications and easements for street and highway purposes and
public facility and utility easements therein offered, excepting those dedicated to other
agencies, and in order to ensure satisfactory performance by Subdivider and
Subdivider's obligations under the Subdivision Map Act and Title 9 of the Los Altos
Hills Municipal Code the patties agree as follows:
AGrRF.FMFNT
1. Performance of Work
Subdivider shall, at its sole cost and expense, furnish or cause to be furnished
all labor supplies, equipment and materials, and do or cause to be done, in a good and
workman like manner all of the improvements within and/or without and subdivision
work described in Exhibit A attached and incorporated. The cost of such in
and required items of work is estimated to be one hundred twenty-nine thousand
Dollars and 00/100 Cents ($129,000.00). Subdivider shall also do all the work and
shall, at its sole cost and expense, furnish all materials necessary in the opinion of the
City Engineer to complete the improvements in accordance with the plans and
specifications on file, or with any changes required or ordered by the City Engineer.
2. Places and Grades to be Fixed _b Clty.Enayineer
All of the .-vvork.is to -be done at the places, and with the -necessary-matorials, in
the manner and at the grades shown on the plans previously approved by the City
Engineer and now on file in his office. All work shall be done to the satisfaction of the
City Engineer.
3. Time for Commencement and Performance
Town hereby fixes the time for the commencement of the work to be done on or
before August 21, 2019 ("the Commencement Date"), and for its completion to be
within one (1) year thereafter, At least fifteen (15) calendar days prior to the
commencement of work hereunder, Subdivider shall notify the City Engineer in writing
of the date fixed for commencement thereof-, so that the City Engineer shall be able to
provide inspection services.
4. Time of Essence — Extension
Time is of the essence in this Agreement, provided. that in the event good cause
is shown, the City Engineer may extend the time for completion of the improvements
hereunder. Any such extension may be granted without notice to Subdivider's sureties,
and extensions so granted Without notice to the Subdivider's sureties shall not relieve
the sureties' liability on the bonds to secure the faithful performance of this Agreement
and to assure payments of all persons performing labor and materials in connection
with this Agreement. The City Engineer shall be the sole and final judge as to whether
or not good cause has been shown to entitle Subdivider to an extension.
5. Repairs and Replacement.S.
Subdivider shall replace or have replaced, or repair or have repaired, all pipes
and monuments which are destroyed or damaged, and Subdivider shall replace or have
replaced, repair or have repaired, or pay to the owner the entire cost of replacement or
repairs, of any and all property damaged or destroyed by reason of any work done
hereunder, whether such property be owned by the United States or any agency thereof,
by the State of California, or any agency or political subdivision thereof, or by any
combination of such owner. Any such repair or replacement shall be to the satisfaction,
and subject to the approval of, the City Engineer or the corporation, person or agency.
6. Utility Deposits - Statement
Subdivider shall file with. the City Clerk, on or before the Commencement Date,
a written statement signed by Subdivider and each public utility corporation involved,
to the effect that Subdivider has made all deposits legally required by such public utility
corporation for the connection of any and all public utilities to be supplied by such
public utility corporation within the Subdivision.
7. Permits, Compliance with Law
Subdivider -shall at -Subdivider's sole cost and expense, obtain all necessary
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permits and, licenses for the construction of 'improvements, give all necessary notices
and pay all fees and taxes required by law. I
8. Superintendence by Subdivider
Subdivider shall personally supervise the work on the improvements, or have a
construction contractor, competent foreman or superintendent on the work site at all
times during construction, with authority to act for Subdivider, Subdivider shall obtain
the approval of the City Engineer before using a construction contractor, competent
foreman or superintendent to supervise work on the improvements. Prior to granting
approval, the City --Engineer shall determine that said construction contractor, competent
foreman or superintendent to supervise is qualified to perform such duties,
9. Inspection by Town
Subdivider shall at all times maintain proper facilities, and shall provide safe
access, for inspection by Town, to all palls of the work and to the shops wherein the
work is in preparation.
10. Contract Securi
(a) Concurrently with the execution hereof, Subdivider shall furnish: (1) a
surety bond in an amount equal to at least one hundred percent (100%) of the estimated
cost of the construction and completion of the works and improvements describedin
Exhibit A. as security for the faithful performance of this Agreement; and (2) a separate
surety bond in an amount equal to at least one hundred percent (I 00%)of the estimated
cost of the construction and completion of the work and improvements described in
Exhibit A as security for the payment of all persons performing labor and providing
materials in connection with this Agreement, Subdivider shall require all subcontractors
to file a labor an materials corporate surety bond as security for payment of all persons
furnishing labor and materials in connection with the Agreement.
(b) Subdivider may satisfy the requirements of this section by depositing
cash with the Town.
11. Hold Harmless Agreement
(a) Subdivider shall hold harmless, indemnify and, at the Town's request,
defend Town (with Counsel selected by Town), its officers, employees, agents, boards
and commissions, whether elected or appointed, from and against all claims, demands,
actions, causes of action, losses damages, liabilities, costs and expenses, 'Including but
not limited to reasonable attorney's fees or obligations, for or in connection with
personal injury (including, but not limited to, death) or darnage to proper,ty (both real
and personal) which arises out of or is in any way connected with the negligent act,
erfor. o . r . o. m . issio . n of Subdivider, its agents., contractors., subcontractors,- or employees in
connection with the -performance of -this Agreement.
(b) In order to make certain that Subdivider has adequate resources to fully
carry out its responsibilities pursuant to subparagraph (a) above, Subdivider shall file
with the Town proof that Subdivider's professional consultants (including any soils
engineer or civil engineer) employed by Subdivider in comm --lection with the work
described herein, maintain professional liability (e.g. errors and omissions) insurance
during the life or this Agreement. If the work is accomplished by contractors or
subcontractors, Subdivider shall assure that the contractors and/or subcontractors carry
such insurance. The insurance shall be in d -n amount of not less than Two Million Five
Hundred Thousand collars ($2,500,000), shall contain a provision that such insiftance
shall .11 not be, reduced or canceled except upon thirty (30) days written notice to Town
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and shall be sulject to the approval of the City Attorney as to form, amount and carrier.
(c) The foregoing hold harmless statement of Subdivider shall apply to all
damages and claims for damages of every kind suffered or alleged to have been
suffered by reason of the construction operations undertaken pursuant to this
Agreement, regardless of whether or not Town has approved the plans or specifications
for the improvements, and regardless of whether or not such 'insurance policies have
been determined to be applicable to any such damages or claims for damages.
12. Subdivider's Insurance
Subdivider shall not commence work under this Agreement until Subdivider has
obtained all insurance required under this paragraph, and such insurance has been
approved by the City Attorney as to form, amount and carrier, nor shall Subdivider
allow any contractor or subcontractor to commence work until all similar insurance
required of the contractor or subcontractor has been so obtained and approved. All
requirements shall appear either in the body of the insurance policy or in endorsements
and shall specifically bind the insurance carrier,
Subdivider shall takce out and maintain during the life of this Agreement the
following policies of insurance:
(a) Worker's compensations and Employer's Liability Insurance in the
statutory coverage. In signing this Agreement, Subdivider makes the following
Certification:
"I am aware of the provision of Section 3700 of the
California. Labor Code which requires every employer to be
unsure against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions
of the Code, and I will comply with such provision before
cornmencing the performance of the work of this
Agreement."
(b) Commercial....G.p.ne-ra.1 Lia-bi1i!.y-.,Jn.Quran.ce: In an amount not. -Jess .than
ONE MILLION DOLLARS ($1,000,000) for injuries including, but not limited to,
death to any one person and subject to the same limit for each -person; in an amount not
less than TWO MILLION DOLLARS ($2,000,000) combined single limit per
occurrence for bodily injury, personal injury and property damage.
(c) Automobile Liability (Code 1) Insurance-, In an amount not less than
ONE MILLION DOLLARS ($1,000,000) combined single limit per accident for bodily
injury and property damage,
(d) It is agreed that the insurance required by Subsections (b), (c), (d) shall
be in an aggregate amount of not less than Five Million Dollars ($5,000,000) and shall
be extended to include as additional insureds the Town of Los Altos Hills, its elective
and appointive boards, officers, agents, CMPIO)7ees and volunteers, with respect to
operations performed by the Subdivider as described herein. Evidence of the insurance
described above shall be provided to the Town upon execution of this Agreement and
shall be subject to approval by the City Attorney as to form, amount and carrier. The
policy of insurance shall also contain a provision indication that such insurance shall
not be reduced or canceled except upon thirty (30) days written notice to the Town. In
addition, the following endorsement shall be made on the policy of insurance:
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"Notwithstanding any other provisions in this policy, the
insurance afforded hereunder to the Town of Los Altos
Hills shall be primary as to any other insurance or
reinsurance covering or available to the Town of Los Altos
Hills,, and such other insurance or reinsurance shall not be
required to contribute to any liability or loss until and
unless the approximate limit of liability afforded hereunder
is exhausted."
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13. Evidence of Insurance
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Subdivider shall furiush Town concurrently with the execution hereof,
satisfactory evidence of the insurance required and evidence that each carrier is
required to give Town at least thirty (30) days prior notice of the cancellation or
reduction in coverage of any policy during the effective period of the Agreement.
14. Title to Improvements
Title to, and ownership of, all improvements constructed hereunder by
Subdivider shall vest absolutely in Town, or to such other public agencies, persons,
partnerships, associations or corporations to which dedications of easements were made
or reserved upon the completion and acceptance of such improvements by Town or -the
agency, person, partnership, association or corporation.
15. Repair -or Reconstruction of -Defective Work
If, within a period of one (1) year after final acceptance of the work performed
under this Agreement, any structure or part of any structure furnished and/or installed
or constructed, or caused to be installed or constructed by Subdivider, or any of the
work done under, this agreement, fails to fulfill any of the requirements of the
Agreement of the specifications referred to herein, or proves to be defective or become
damaged because of differential settlement, action of the elements, or ordinary usage,
except for catastrophic events, Subdivider shall without delay and without any cost to
Town repair or replace or reconstruct any defective or otherwise unsatisfactory pail or
parts of the work or structure. Should Subdivider fail to act promptly or in accordance
with this requiremeant,, or should the exigencies of the case require repairs or
replacements to be made before Subdivider can be notified, Town may., at its option,
make the necessary repairs or replacement or perform the necessary work, and
Subdivider shall pay to Town the actual cost of such repair plus fifteen (15%) percent.
Subdivider shall at the time of acceptance of the improvements by Town or other public
agency, provide the Town with a corporate surety bond in the principal sum of be
Twenty thousand Dollars and 00/tOO Cents ($20,000.00) to secure the undertaking and
obligations set forth in this provision.
16. Subdivider not Agent of Town
Neither Subdivider nor any of Subdivider's agents or contractors shall be
considered agents of Town in connection with the performance of Subdivider's
obligations under this Agreement.
17. Notice of Breach and Default
If Subdivider refuses or fails to obtain prosecution of the work, or any severable
part thereof, with such diligence as will insure its completion within the time specified,
or any extensions thereof, or fails to obtain completion of the work within such time, or
if the Subdivider should be adjudged as bankrupt, or if 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
provision of the Agreement, the City Engineer or City Manager may serve written
notice upon Subdivider and Subdivider's sureties of breach of the Agreement, or of any
portion thereof, and default of Subdivider,
18. Breach of Agreement: Performance by Sureties or Town
In the event of such notice, Subdivider's sureties shall have the duty to take
over the work and complete the work and the improvement herein specified, provided,
however, 'that if the sureties, within ten (10) days after bei ).g served notice of -such
breach, do not give Town -written notice of their intention to take -over-the performance
of the Agreement, and do not commence performance thereof within ten (10) days after
notice to the Town of such election, Town may take over the work a , nd prosecute the
same to completion, by contact or by any other method Town may deem advisable, for
the account and at the expense of Subdivider, and Subdivider's sureties shall be liable
to Town for any excess cost or damages occasioned by Town; and, in such event,
Town, without liability for so doing, may take possession of, and use in completing the
work , such materials, appliances, plant and other property belonging to Subdivider as
may be on site of the work and necessary thereof.
19. Trenching and Backfilling
Subdivider shall require that all trenching and backfilling witl-in and outside the
property lines for utility lines, including sanitary,, storni,, water and any other purposes,
shall be done under the 'Inspection of a soils engineer who shall test the trenching and
backfilling with a sufficient number of soil tests to secure the proper compaction
Subdivider shall further require that a certificate be filed with the Town stating that said.
Trenching and back filling has been performed in accordance with the soils engineer's
recommendations.
20. Notices
All notices herein required shall be in writing and delivered in person or sent by
certified mail, postage prepaid, Notices required to be given to Town shall be
Addressed as Follows:
h
City Clerk
Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Notices required to be given to Subdivider Shall be Addressed as follows:
Evershine III L.P.
C/O Michael Chan
19620 Stevens Creek Boulevard
Suite #200
Cupertino, CA 95014
Notices required to be given to sureties of Subdivider shall be addressed as
follows:
East West Bank
Attn: Danny Chin
19625 Stevens Creek Blvd.
Cupertino, CA 95014
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.
21. As- Built Drawings
Subdivider shall furnish Town reproducible plastic film as -built drawings of the
public improvement of a quality acceptable to the City Engineer together with a
certification by Subdivider's engineer that the improvements have been constructed in
accordance with the approved plans and specifications, Subdivider shall furnish Town
with the as -built drawings concurrently with Subdivider's request for acceptance of the
improvements by the Town.
22. Parties Obligated
Subdivider agrees that this Agreement shall bind Subdivider and Subdivider's
successors in interest, heirs and assigns.
23. Attorneys' Fees
If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to
which that party may be entitled. The court may set such fees in the same action or in a
separate action brought for the purpose.
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4- V. c �.mit ,q�,
`I"he; [ass of the State of Californ't."a. shalt gover a thi's Agreement. AN. disputes.,
claims, and proceedingn'sing -out of or relating to this Agreen.-tent shall be vernied in
fl-te County Santa Clara, Cal.Hfornia.
25. 'Severabijfty
If a coutt of competent Jurl'sdiction finds or rules that any provi'sion of thiS
Agreem.entl's.i.n.valid., void, or unenforceable, th.-.e psions of- thy, Agreement not so
adjudged shall renialiti-i'ti full force and efl-ect. The invafid.ilq'� 'In. whole---- or i*n pact of any
provisiont 01"Lue, Agreeiwonxt sliall riot vo.z*d w- affec'Uthe valiARY offa. def Prov!s■
IoD,
N W I " ESS" WHIERIND"),W, 1E.A.-te paJ[,.J(,,s have, c-fause(fl iliiis Agnx (0 tbe
TOWN OF LOS Af,;I`0S Hf L.LSt;
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A-TIEST:
AP PROVE. �AS TO F01,.ZNI,:
t , A tom
33310-29.1
SUBDIVIDERS:
Evei;"shihe 111, L,P.
a Callfo.rnia 114nited partn..ei.,,ship
By Ewerbrfigfif 1,
EaDI Ity cGrai.3alay
1b; Mana(giag Partner
M.1-1. "t—a!
Its: Mwiaging Membef
RESOLUTION 4819
RESOLUTION OF THE CITY COUNCIL'
OF THE TOWN OF LOS ALTOS HILLS
APPROVING FINAL, SUBDIVISION MAP FOR THE `
LANDS OF EVERSHINE III L*P0
FILE #FM19-0002
WHEREAS,- the City Engineer has examined the proposed Final Subdivision Map entitled
"BEING A SUBDIVISION OF PARCEL 1 OF TRACT NO. 10067, FILED AUGUST 7, 2013
IN BOOK 863 OF MAPS PAGES. 3 8-41 -INCLUSIVE, OFFICIAL RECORDS, COUNTY OF
SANTA CLARA, STATE. OF CALIFORNIA and has determined that the said Final Map is in
conformity, with the approved Tentative Map for said subdivision, the requirements of Chapter 1
entitled "Subdivisions" of Title 9 of the Los Altos Hills Municipal Code, and the provisions of
v
the Subdivision Map Act,
NOW, THEREFORE, the City Council of the Town of Los Altos Hills does RESOLVE as
follow:
The City Council of the Town hereby approves the above-described Final Subdivision Map.
The above and foregoing Resolution passed and adopted by the City Council of the Town of Los*
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Altos Hills at a special meeting held on the 21 st day of August 2019, -by the following vote:
AYES: Spreen, Wu, Corrigan, Tankha, Tyson
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
beborah Padovan, ity Clerk
BY:
RogerSen, MAyor
&
Resolution 48-19
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