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HomeMy WebLinkAboutReso RDA 34-1982 RESOLUTION NO. 34 A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT ENTITLED "AGREEMENT - SUBDIVISION IMPROVEMENTS - GATEWAY CENTER BE IT RESOLVED by the Members of the Redevelopment Agency of the City of South San Francisco, that 1. Execution of Agreement. Execution of an Agreement entitled, "Agreement - Subdivision Improve- ments - Gateway Center" among the Redevelopment Agency of the City of South San Francisco, City of South San Francisco, and Homart Development Company, and of the "Escrow Deposit and Pledge Agreement" attached hereto as Exhibit "D," is hereby authorized, and a copy of said Agreement is attached hereto as Exhibit "A." 2. Signature. The Chairman is authorized to execute said Agreement on behalf of the Redevelopment Agency, and the Secretary attest his signature thereto. ADOPTED, SIGNED AND APPROVED this 2nd day of June, 1982. ~' ~ the ~ a~l~rman, The R~me t~~~enc~y ~ City of South San Francisco AYES, Members Ronald G. Acosta, Mark N. Addiego, Emanuele N. Damonte, Gus Nicolopulos, and Roberta C. Teglia NOES, None ABSENT, None ATTEST: Executive Director/Secretary AGREEMENT Subdivision Improvements GATEWAY CENTER THIS AGREEMENT is made and entered into as of this day of , 1982, by and among the City of South San Francisco, a municipal corporation, hereinafter designated "City," Homart Development Co., a corporation, hereinafter designated "Subdivider," and The Redevelopment Agency of South San Francisco, hereinafter designated "Agency," each of whom understands and agrees as follows: WI TNESSETH WHEREAS, Subdivider is the developer of a project known as the Gateway Project in 'the City of South San Francisco upon which it proposes to construct or cause to be constructed a development consisting of office buildings, a hotel or hotels, retail commercial establishments, research and development' facilities and other buildings and facilities all pursuant to the Gateway Specific Plan, the Redevelopment Plan and the Owner Participation and Development Agreement as hereinafter defined; and WHEREAS, City and the Agency have adopted a Redevelop- ment Plan for the Gateway Redevelopment Project. Subdivider's development is within the Gateway Redevelopment Project and Disc 5470 A1 Date: 5/27/82 subject to the said Redevelopment Plan. The City, the Agency and Subdivider have entered into an Owner Participation and Development Agreement, dated March 19, 1981, which deals with the development of the area by Subdivider and provides for the financing of certain public improvements; and WHEREAS, under the Owner Participation and Development Agreement above referenced (OPA), Agency and Subdivider have agreed that the cost of the construction of certain of the Improvements as hereinafter defined.shall be shared in accord- ance with the schedule set forth in Exhibit C hereto. Subdivider has agreed to advance the Agency's Proportionate Share of the cost of the Improvements, provided that Subdivider shall be repaid for such advance under the terms of the Repayment Agreement dated April 28, 1982 by and among the City, the Agency and Subdivider (the RepaYment Agreement). It is under- stood and agreed that this agreement is in harmony with and not in derogation of the OPA. WHEREAS, City has approved Tentative Subdivision Map No. SA-81-74 Tentative Map Gateway Center; hereinafter designated "map'"; and WHEREAS, Subdivider has requested approval of the Building Permit for a building on a portion of the property covered by the map, which permit is sought to be issued prior to the completion and approval of the plans and specifications for the construction and completion of improvements, including all -2- streets, highways and public ways and public utility facilities which are a part of, or appurtenant to, the subdivision (herein- after designated "subdivision") designated in the map as required by the Owner Participation and Development Agreement and the conditions of approval of the tentative map, which public improvements are described in Exhibit "A" attached hereto and by this reference incorporated herein and made a part hereof; and, WHEREAS, this Agreement is executed pursuant.to the provisions of the Subdivision Map Act of the State of Califor- nia and Title 19 of the South San Francisco Municipal Code and the OPA; NOW, THEREFORE, for and as a precondition to the issuance of the requested Building Permit and approval of the final subdivision maps and of the acceptance of the dedications of easements for street and highway purposes and public facility and utility easements therein offered, excepting those dedicated to other agencies, and in order to insure satisfactory perfor- mance by Subdivider of Subdivider's obligations under said Subdivision Map Act and Title 19 of said Code, the parties agree as follows: 1. Performance of Work: Subdivider shall, in accordance with the Owner Parti- cipation and Development Agreement and the conditions of approval of the tentative map, furnish, or cause to be furnished -3- completed plans and specifications for the construction of the public improvements, which said plans and specifications must be approved by the Director of Public Services, prior to construction of said improvements. In addition, Subdivider shall furnish, or cause to be furnished all labor, supplies, equipment and materials and do, or cause to be done, in a good and workmanlike manner all of the following works and improve- ments within (and/or without) the subdivision, to wit: Improve- ments and required items of work described in Exhibit "A" attached hereto (the "Improvements"). The cost of such improve- ments and required items of work including the cost of the plans and specifications is estimated to be $12,688,744. Subdivider shall also do all the work and furnish all materials necessary in the opinion of the Director of Public Services and, on his order, to complete the Improvements in accordance with the completed and approved plans and specifications, or with any changes required or ordered by said Director of Public Services which, in his opinion, are necessary or required to complete the work. 2. Work; Places and Grades to be Fixed by Director of Public Services: All of said work is to be done at the places, of the materials in the manner and at the grades, as approved by the Director of Public Services and to the satisfaction of said Director of Public Services with the advice and consultation of the engineers who prepared the plans and specifications for said public improvements. 3. Work; Time for Commencement and Performance: In the event the work is not undertaken through special assessment district proceedings Subdivider shall commence said work as soon as reasonably possible following abandonment of such proceedings and shall complete said work within three (3) years after commencement. Prior to the com- mencement of work hereunder, Subdivider shall obtain the Director of Public Services' approval of the plans and speci- fications for the Improvements and shall notify the Director of Public Services in writing of the date fixed by Subdivider for commencement of the work, so that the Director of Public Services shall be able to provide services of inspection. 4. Time of Essence - Extension: Time is of the essence of this Agreement, provided that in the event good cause is shown therefor, the City Coun- cil may extend the time for completion of the improvements hereunder. Any such extension may be granted without notice to the Subdivider's sureties, and extensions so granted shall not relieve the sureties' liability on the bonds to secure the faithful performance of this Agreement and to assure payment of all persons performing labor and materials in connection with this Agreement. The City Council shall be the sole and final -5- judge as to whether or not good cause has been shown to entitle Subdivider to an extension. 5. Repairs and Replacements: Subdivider shall replace or have replaced, or repair or have repaired, as the case may be, all pipes and monuments shown on the map which have been destroyed or damaged, and Subdivider shall replace or have replaced, repair or have repaired, as the case may be, 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 subdivi- sion thereof, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction, and subject to the approval, of the Director of Public Services or said corporation, person or agency. 6. Proportionate Shares and City's Contribution: There shall be excluded from Subdivider's obligation under this agreement the obligation to pay for those Improve- ments defined as 'City Contribution' in paragraph 1.5 of the Repayment Agreement. For the purposes hereof the Total Cost of Improvements shall mean the total cost of construction, bond premiums and insurance costs, total estimated cost of acquisi- tion of lands and easements from third parties and all incidental costs and contingencies as certified by Subdivider and approved by Agency, which approval shall not be unreasonably withheld, including engineering, supervision and inspection as incidental to construction and acquisition (including fees paid to City for inspection of the Improvements), including Agency's Propor- tionate Share and Subdivider's Proportionate Share of said costs, but exclusive of the City Contribution. Agency's and Subdivider's Proportionate Share of the Total Cost of Improvements shall be determined as follows: (a) The total cost of each item of Improve- ments listed on the Improvement Description on Exhibit B shall first be determined by adding to the estimated construction cost thereof its allocated share of the incidental expenses as identified in the above referenced Total Cost of Improvements, such allocation to be made in direct proportion to construction costs. (b) The resulting total cost of each numbered item of Improvement shall then be multiplied by the percentage figure set opposite each such item under the caption 'Agency's Share' and 'Developer's Share' in Exhibit C. (c) The aggregate amount of all of the figures resulting from the calculations under (a) and (b) shall be the Agency's and Subdivider's Proportionate Share of the Total Cost of Improvements for the purposes hereof. (d) The final determination of the Agency's and Subdivider's Proportionate Share of the Total Cost of Improvements shall be made upon completion of the Improve- ments and acceptance thereof by the City. 7. Permits; Compliance with Law: Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of such improvements, give all necessary notices and pay all fees and taxes required by law. 8. Superintendence by Subdivider: Subdivider shall give personal superintendence to the work on said improvements, or have a competent foreman or superintendent, satisfactory to the Director of Public Services, on the work at all times during progress, with authority to act for Subdivider. 9. Inspection by City: Subdivider shall at all times maintain proper facili- ties, and provide safe access for inspection by City, to all parts of the work and to the shops wherein the work is in preparation. 10. Contract Security: Concurrently with the execution hereof, subdivider shall furnish: (1) an acceptable escrow deposit and pledge agreement in the amount equal to at least one hundred percent (100K) of the cost of the completion of the plans and specifi- cations and the construction and completion of the Improvements in the form of Exhibit D attached hereto, as security for the faithful performance of this Agreement. Subdivider shall require all subcontractors to file a labor and materials corporate surety bond as security for payment of all persons furnishing labor and materials in connection with this Agree- ment. If and to the extent that the Gateway Assessment Dis- trict undertakes to finance and construct the Improvements, Developer shall be exonerated and released from any responsi- bility under this agreement; and from and after the date upon which the contract is let for the construction of the Improve- ments by the Assessment District and the contractor posts a statutory payment and performance bond, Subdivider's escrow posted pursuant to this paragraPh 10 hereof shall be released and exonerated to the extent of 85~ of the total cost of the Improvements. In lieu of or in addition to the above referenced escrow account, Subdivider shall have the right to substitute a surety bond or bonds or a letter of credit in accordance with the Subdivision 'Map Act and City's ordinances pursuant thereto and subject to the reasonable approval of City. ~. 11. Hold Harmless Agreement: Subdivider hereby agrees to, and shall, hold City, its elective and appointive boards, commissions, officers, agents and employees and the Agency and its officers, agents --9-- and employees harmless from any liability (including, but not limited to, that founded in negligence, nuisance, contract and inverse condemnation) for damage or claims for damage for pe. rsonal injury, including death, as well as from claims for property damage which may arise from Subdivider's or Subdivider's contractors' agents' or employees' operations under this Agree- ment, whether such operations be by Subdivider or by any of Sub- divider's contractors, subcontractors or by any one or more persons directly or indirectly employed by, or acting as agent for, Subdivider or any of Subdivider's contractors or subcon- tractors. Subdivider agrees to, and shall, defend City and its elective and appointive boards, commissions, officers, agents and employees and the Redevelopment Agency of the City of South San Francisco and its officers, agents and employees from any suits or actions at law or in equity (including,but not limited to, those based on negligence, nuisance, contract and inverse condemnation) for damages caused or alleged to have been caused, by reason of any of the aforesaid operations, provided as follows: a. That City and Agency do not, and shall not, waive any rights against Subdivider which it may have by reason of the aforesaid hold-harmless Agreement, because of the acceptance by City and Agency, or the deposit with City by Subdivider, of any of the insurance policies described in. Paragraph 12 hereof. -10- b. That the aforesaid hold-harmless Agreement by Subdivider shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this paragraph, regardless of whether or not City has approved of plans and/or specifications for the subdivision, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 12. Subdivider's Insurance: Subdivider shall not commence work under this Agree- ment until subdivider shall have obtained all insurance required under this paragraph and such insurance shall have been approved by the City Attorney as to form, amount and carrier, nor shall Subdivider allow any contractor or subcontractor to commence work on his contract or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. a. Compensation Insurance: Subdivider shall maintain during the life of this Agreement Worker's Compensation Insurance for all Subdivi- der's employees employed at the site of improvement, and in case any work is sublet, Subdivider shall require any -11- contractor or subcontractor similarly to provide Worker's Compensation Insurance for all contractor's or subcontrac- tor's employees, unless such employees are covered by the protection afforded by Subdivider. In case any class of employees engaged in work under this Agreement at the site of the project is not protected under any Worker's Compen- sation law, Subdivider shall provide, and shall cause each contractor and subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. Subdivider hereby indemnifies City and Agenc~y for any damage resulting to it from failure of either Subdivider or any 'contractor or subcontractor to take out or maintain such insurance. b. Public Liability and Property Damage Insurance: Subdivider shall take out and maintain during the life of this Agreement such public liability and property damage insurance as shall insure City, its elective and appointive boards, commissions, officers, agents and Agency and its officers, agents and employees, Subdivider and any contrac- tor or subcontractor performing the work covered by this Agreement from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from Subdivider's or any contractor's or subcontractor's operations hereunder, whether such opera-. tions be by Subdivider or any contractor or subcontractor, or by anyone directly or indirectly employed by either Subdivider or any contractor or subcontractor, and the amounts of such insurance shall be as follows: (1) Public Liability Insurance: In an amount not less than $10,000,000.00 for injuries, including, but not limited to, death, to any one person and subject to the same limit for each person on account of any one occurrence; (2) Property Damage Insurance: In an amount not less than $10,000,000.00 for damage to the property of each person on account of any one occurrence. c. Contractual Liability Insurance: Subdivider shall take out and maintain during the life of this Agreement an insurance policy in the amount of at least $10,000,000.00, insuring City, its elective and appointive boards, commissions, officers, agents and employees, Agency and its officers, agents and employees and Subdivider and any contractor or subcontractor per- forming work covered by this Agreement against damages sustained by reason of any action or actions at law or in equity, and/or any claims or demands by reason of any breach or alleged breach of any contract, or provisions thereof, or by reason of any contractual liability or allege~ contractual liability on any contract, entered into by Subdivider and/or any of Subdivider's contractors, subcontractors, agents and/or employees. In the event that any of the aforesaid insurance policies provided for in this paragraph 12 insures any entity, person, board or commission other than those mentioned in this paragraph, such policy shall contain a standard form of cross- liability endorsement, insuring on such policy City, its elective and appointive boards, commissions, officers, agents and employees, Agency and its officers, agents and employees and Subdivider and any contractor or subcontractor performing work covered by this Agreement. The insurance policies provided for in this para- graph 12 which include the City of South San Francisco, its elective and appointiv~ boards, commissions, officers, agents and employees and Agency and its officers, agents and employees as an additional insured shall contain the following endorse- ment: "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco and the Rede- velopment Agency of the City of South San Francisco shall be primary as to any other insurance or reinsurance covering or avail- able to the City of South San Francisco and -14- to the Redevelopment Agency of the City of South San Francisco and such other insurance or reinsurance shall not be required to con- tribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." 13. Evidence of Insurance: Subdivider shall furnish City concurrently with the execution hereof, with satisfactory evidence of the insurance required, and evidence that each carrier is required to give City and Agency at least twenty days' prior notice of the cancellation or reduction in coverage of any policy during the effective period of this Agreement. 14. Title to Improvements: Title to, and ownership of, all improvements con- structed hereunder by Subdivider shall vest absolutely in City, or such other public agencies, persons, partnersh/ps, associa- tions or corporations to which dedications of easements were made or reserved upon the completion and acceptance of such improvements by City or said agency, person, partnership, association or corporation. 15. Repair or Reconstruction of De~ective Work: Unless the Improvements are conducted by the Gateway Assessment District (in which event the principal responsi- bility shall be borne by the public works contractor engaged by -15- the district), if, within a period of one 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 this Agreement or the specifications referred to herein, or prove 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 City or Agency repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, 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 (15) percent. Unless the work is under- taken by the Gateway Assessment District, Subdivider shall at the time of acceptance of said improvements by City or other public agency file with City a corporate surety bond in the principal sum of One Million Two Hundred Sixty-Eight Thousand Eight Hundred Seventy-Four Dollars ($1,268,874) to secure the undertaking and obligations set forth in this provision. The provisions of the foregoing paragraph shall not apply to common greens. 16. Subdivider Not Agent of City or Agency: Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City or Agency in connection with the performance of Subdivider's obli- gations under this Agreement. 17. Cost of Engineering and Inspection: Unless the work is undertaken by the Gateway Assess- ment District, Subdivider shall pay City the actual cost to City for all inspection and other services furnished by City in connection with the subdivision, plus twenty-two percent thereof for administrative overhead. City shall furnish monthly statements of all charges for services performed by City, and Subdivider shall complete payment of such charges within ten days after receipt thereof. 18. Notice of Breach and Default: If Subdivider refuses or fails to obtain prosecution o'f 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 said work within such time, or if the 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 -17- Subdivider or any of Subdivider's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the Director of Public Services or City Council may serve written notice upon Subdivider and Subdivider's sureties of breach of this Agreement, or of any portion thereof, and default of Subdivider. 19. Breach of Agreement; Performance by Sureties or City: In the event of any such notice, Subdivider's sure- ties shall have the duty to take over and complete work and the improvement herein specified; provided, however, that if the sureties, within five days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of the contract and does not commence performance thereof within five days after notice to the City of such election, City may take over the work mnd prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Subdivider, and Subdivider's sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and necessary therefor. 20. Erosion Control: Subdivider shall furnish landscape plans and ade- quately provide for erosion control and shall require that the landscape engineers file a certificate upon completion to the effect that the design and placing of the erosion control mater- ial and plants meets the approved plans and specifications. 21. Trenching and Back-Filling: Subdivider shall require that all trenching and back- filling within and outside the property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done under the inspection of a soils engineer who shall test the trenching and back-filling with a sufficient number of soil tests to secure the proper compaction. Subdivider shall further require that a certificate be filed with the City stating that said trenching and back-filling has been performed in accordance with the soils engineer's recommendations. 22. Water Lines: Subdivider shall dedicate to California Water Service Company the easements required for the water lines, facilities and appurtenant works, unless said lines, facilities and appur- tenant works are to be installed within rights of way dedicated to City. Subdivider shall construct and install, in accordance with the Owner Participation and Development Agreement, the improvements in said easements as described in Exhibit "A" attached hereto. The improvement plans and specifications -19- shall have the approval of said California Water Service Company, unless California Water Service Company provides for said construction and installation. 23. Notices: All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage pre- paid. Notices required to be given to City shall be addressed as follows: City Clerk City Hall, P.O. Box 711 South San Francisco, California 94080 Notices required to be given to Subdivider shall be addressed as follows: Homart Development Co. The Xerox Centre Suite 3100 55 West Monroe Chicago, IL 60603 Attn: John Schippel Homart Development Co. 480 Industrial Way South San Francisco, CA 94080 Attn: John Aquilar Notices required to be given Agency shall be addressed as follows: Redevelopment Agency of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: Executive Director provided that 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. -20- 24. As-built Drawings: Subdivider shall furnish City reproducible (mylar or equal) as built drawings and two blueilined prints of the public improvements, together with a certification by Subdivider's engineer that said improvements have been constructed in accordance with the approved plans and specifications. Sub- divider shall furnish City with said as-built drawings concur- rently with Subdivider's request for acceptance of said im- provement by City. 25. Parties Obligated: Subdivider agrees that this Agreement shall bind Sub- divider and his successors in interest and assigns. 26. Dedications: At request of City or upon approval of the final subdivision map, Subdivider shall tender for dedication to City, without consideration, Gateway Boulevard and other public easements as shown on Exhibit E hereto. 27. Utility DeDosits: Subdivider shall file with the City Clerk, on or before October 15, 1982 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 corpora- tion within the subdivision. -21- 28. Exhibits: The following exhibits are attached hereto and incor- porated herein. Exhibit A - Improvement Description Exhibit B - Engineers Estimate of Construction Costs Exhibit C - Proportionate Shares Exhibit D - Escrow Agreement Exhibit E - Map of Dedications 29. Definition: The words "Director of Public Works" shall mean Direc- tor of Public Services. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CITY: City of South San Francisco, ATTEST: a municipal corporation by City Clerk Mayor AGENCY: The Redevelopment Agency of the ATTEST: City of South San Francisco by by Secretary Chairman SUBDIVIDER: Homart Development Co. by Title: -23-