HomeMy WebLinkAboutReso 2-1984 RESOLUTION NO. 2-84
cITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING EXECUTION OF AN
AGREEMENT WITH BURGER KING CORPORATION
BE IT RESOLVED by the City Council of the City of South San Francisco that:
1. Execution of Agreement.
Execution of an Agreement entitled "Improvement To E1 Camino Real At
Chestnut Avenue" between the City of South San Francisco and Burger King Corpora-
ti on is hereby authorized, and a copy of said Agreement is attached hereto as
Exhibit "A".
2. Signatures.
The Mayor is authorized to execute said Agreement on behalf of the City,
and the City Clerk attest his signature thereto.
I hereby certify that the foregoing Resolution was regularly introduced and
adopted by the City Council of the City of South San Francisco at a regular
meeting held on the llth day of January , 1984, by the following vote:
AYES: Councilmembers Mark N. Addiego, Emanuele N. Damonte, Richard A. Haffey,
Gus Nicolopulos; and Roberta Cerri Teglia
NOES: None
ABSENT: None
EXHIBIT "A" TO RESOLUTION NO. ~[-~:84
AGREEMENT
IMPROVEMENT TO EL CAMINO REAL AT CHESTNUT AVENUE
THIS AGREEMENT made and entered into this 25th day of Januar.v ,
19 84 , between the CITY OF SOUTH,'SAN FRANCISCO, a municil~al corporation, here- '
inafter designated "CITY" and Burger King Corporation, hereinafter designated
"DEVELOPER," both of whom understand and agree as follows'
W ITNESSETH:
WHEREAS, Developer has been granted Use Permit No. 83-658 authorizing develop-
ment of a restaurant in accordance with the Use Permit conditions of approval, and
WHEREAS, the Developer is willing to construct and install certain traffic
improvements within E1 Camino Real (state Highway Rout~ 82), at its sole cost and
expense and in accordance with the requirements of the Department of Transportation
of the State of California (hereinafter "Caltrans"), as referenced herein'
NOW, THEREFORE, in consideration of the aforegoing premises, and the covenants
and condi~:ions herein contained, it is ag'reed as follows:
1. Developer shall, at their own expense, 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 improvements within
E1 Camino Real, to wit' Improvements and required items of work described in
Exhibit "A" attached hereto and by this reference incorporated herein as though
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set forth verbatim. The cost of such improvements and required items of' work
is estimated to be $SU,307.L)D. Developer shall also do all the work and furnish
all materials necessary as required by Caltrans and the City to complete the
improvements in accordance with the approved plans and specifications attached
hereto as Exhibit "A."
2. Work; Places and Grades'
All of said work is to be done at the .places, of the materials, in the
manner and at ~.he grades, all as shown on the plans and specifications therefor,
heretofore approved by Caltrans, to the satisfaction of that agency and the City.
3. Work; Time for Commencement and Performance'
A. Work to be done pursuant to this Agreement shall commence on the same
day that Developer commences work on any portion of the Burger King Restaurant
building and shall be completed by Developer within twelve '(12) months thereafter.
Developer agrees that Developer must commence work on the Burger King Restaurant
building within six (6) months of issuance of a building permit therefor or said
building permit shall be automatically void without further notice by City ~o
Developer. Said building permit shall contain an endorsement on its face, signed
by authorized represta~ives of Burger King Corporation approving the foregoing
requirement to begi.n work within six (6) mon%hs of issuance o~' said building permit
and agreeing ~hat said permi~ shall be void as provi-ded above if work has not
colamenced within the said six (6) month period.
.B. Developer further acknowledges and agrees that the required public
imrovemen~S must be completed prior to occupancy of the Bur§er King Restaurant
building and that City will not issue a Certificate of Occupancy or a Temporary
Certificate o,~' Occupancy unless and until said public improvements have been
complex, ed ~o the satisfac%ion of Caltrans and t~e City.
4. ~epairs and Replacements:
~eveloper shall replace or have replaced or repair or have repaired,
as the case may be, all pipes and monuments si~own on Parcel ~ap Pi,1-~3-210 whic~
have been Oestroyed or damaged, and Developer shall replace or have replaced,
repair or nave repaired, as the case may be, or pay ~o the owner ~he entire cos~ o~
replacement or repairs, of any and all property damaged or destroyed by reason or'
any' work done hereunder, whether such property be owned by the United States or
any agency thereof, of the State of California, or any agency or political sub-
division thereof, or by any combination of such owners. Any such repair or
replacement shall be to the satisfaction, and subject to the approval of Caltrans,
the City's Director of Public Services, and said corporation, person or agency.
5. Permits; Compliance with Law:
Developer shall, at Developer'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.
6. Contract Security-
Concurrently with the execution hereof, Developer shall furnish a
Letter of Credit in an amount equal to at least one hundred ten percent (110 ~j
of the estimated cost of the construction and completion of the works and~improve-
ments described in Exhibit. "A" attached hereto, as security for the faithful
'performance of this Agreement. Developer shall also provide a Labor and
Materials Bond as required by Caltrans for work on State Highways.
7. Hold Harmless Agreement-
Developer hereby agrees to, and shall, indemnify and hold City, its elective
and appointive boards,co,~.~ml~ 'ss~ons, officers, agents and employees harmless from any
liability (including, but not limited to, that found in negligence, nuisance,
contract and inverse condemnation) for damage or claims for damage for personal
injury, including death, as ~.~ell as from claims for property damage which may
aris'e from DevelOper'or Developer's contract'ors', agents' or employees' operations
under this Agreement, whether such operations be by Developer or by any of
Developer's contractors, subcontractors or by any one or more persons directly
or indirectly employed by, or acting as agent for, Developer or any of Develo2~_r's
contractors or subcontractors. Developer agrees to, and shall, defend City and
its elective and appointive boards, commissions, 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 does not, and shall not, waive any rights against
Developer which it may have by reason of the aforesaid Hold Harmless
Agreement, because of the acceptance by City, or the deposit with
City by Developer, of any of the insurance policies described in
Paragraph 8 hereof.
b. That the aforesaid Hold Harmless Agreement by Ueveloper 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 develop-
ment, or regardless of whether or not such insurance policies shall
have been determined to be applicable to any of such damages or
claim for damages.
8. Developer's Insurance:
Developer shall not commence work under this Agreement until Developer
shall have obtained all insurance required under this paragraph and such insurance
shall ~ave been approved by the City Attorney as to form, amount and carrier, nor
s~all Ueveloper allow any contractor or subcQntractor 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. Ail requirements herein.
provided shall appear either in the body of the insurance policies or as endorse-
men~s and shall specifically bind the insurance carrier.
a. Compensatio~ nsurance' .~.
,. ,
Developer shall maintain during the life of this Agreement Workmen's
Compensation Insurance for all Developer's employees employed at the site of
improvement, and in case any work is sublet, Developer shall require any con~ractor
or subconractor similarly to provide Workmen's Compensation Insurance for all
contractor's or subcontractor's employees, unless such employees are covered by
the protection afforded by Developer. In case any class of employees engaged in
work under this Agreement at the site of the project is not protected under any
Workmen's Compensation law, Developer shall provide, and shall cause each con-
tractor and subcontractor to provide, adequate insurance for the protection of
employees not otherwise protected. Developer hereby agrees to indemnify City for
any damage resulting to it from failure of either developer or any contractor or
subcontractor to take out or maintain such insurance.
b. Public Liability and Property Damage Insurance:
Developer 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 employees,
Developer and any contractor 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 Developer's or any
contractor's or suOcontractor's operations hereunder, whether such operations be
by Developer or any contractor or subcontractor, or by anyone directly or
indirectly employed by either Developer or any contractor or subcontractor, and
the amounts of such insurance shall Oe as follows'
(~) Public Liability Insurance'
In an amount not less than SbUU,UUU.OU t'or injuries, including,
but not limited to, death, to any one person and subject to the same limit
~'or each person in an amount of not less titan $1,OUU,UUU.UU on account o?'
any one occurrence;
(2) Property Damage Insurance'
In an amount not less than-~S500,O00.O0 t'or damage to the property
of each person on account of any one occurrence.
c. Contractua! Liability Insurance'
Developer shall take out and maintain during the life of this Agree
ment an insurance policy in the amount of at least-.$1,000,000.00, insuring City,
its elective aqd appointive boards, commissions, officers, agents and employees,
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developer and any contractor or' subcontractor performing 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 or' any breach or alleged
·
breach of any contract, or provisions thereof, or by reason of any contractual
liaDilit,y or alleged contractual liability on any contract entered i.nto by
developer and/or any of developer's contractors, subcontractors, agents and/or
employees.
In the event that any of the al~oresaid insurance policies provided l~or in
this Paragraph 8 insures any entity, person, board or commission other than
those men.~ioned in this Baragraph, such policy shall contain a standard form of
cross .lia'~ility endorsement, insuring on such policy City, its elective and
appointive boards, commissions, officers, agents and employees, developer and any
contractor or subcontractor performing work covered by this Agreement.
The insurance policies provided for in this Paragraph 8 which include the
City of' Sour. h San Francisco, its elective and appointive boards, commissions,
otficers, agents and employees as an additional insured shall contain the follow
lng endorsement-
"No~t~withstanding any other provision in this policy, ~he insurance
atforded hereunder to the City of Soutl~ San Francisco shall be
primary as to any other insurance or reinsurance covering or avail
able to the City of' South San Francisco, and such ortner insurance or
reinsurance shall not be required to contribute to any liabi-lity or
loss until and unless the approximate limit of liability afforded
hereunder is exhausted."
9. Evidence of Insurance'
Developer shall furnish City, concurrent with the execution hereof,
satisfactory evidence of the insurance required, and evidence that each carrier
is required to give City at least thirty (Z~U) days' prior notice of the cancel-
lation or reduction in coverage of any policy during the effective period of
this Agreement.
1U. Title to Improvements'
Title to, and ownership of, all impovements constructed hereunder by
.Developers shall vest abSolutely in Caltrans, City, or such other public agencies,
persons, partnerships, associations or corporations to which dedications of ease-
ments were made or reserved upon the completion and acceptance of such. improvements
by Caltrans, City, or said agency, person, partnership, association or corporation.
11. Repair or Reconstruction of Defective Work'
!f, within a period of one year after final acceptance of work performed
under this Agreement, any structure or part of any structure furished and/or
installed or constructed, or caused to be installed or constructed by Developer,
or any of ~he work done under this Agreement, fails to fulfill any of the require-
ments of ~nis Agreement or the specifictions referred to herein, or prove to be
defective or beco.~ne damaged because of differential settlement, action of the
- elements, or ordinary usage, except for catastrophic events, developer shall
witl~in ten days of receipt of notice as required herein and without any cost to
City, repair or reconstruct any defective or otherwise unsatisfactory part or parts
o~ the work or structure. Should developer fai,1 to act promptly or in accordance
with this requirement, or should the exigencies of the case require repairs or
replacement, s to be made before Developer can be notified, City may, at its option,
make the necessary repairs or replacements or perform the necessary work, and
Developer shall pay to City the actual cost of such repairs plus fifteen percent
(15). Developer shall at the time of acceptance of said improvements by City or
other public agency file with City a corporate surety bond, or other security
acceptable to City in City's sole discretion, in the principal sum of Five Thousand,
Five Hundred Dollars ($5,500.00) to secure the undertaking and obligations set
forth in this provision.
12. Developer not Agent of City:
Neither Developer nor any of Developer's agents or contractors are or
shall be considered to be agents of City in connection with the performance of
Developer's obligations under this Agreement.
13. Notice of Breach and Default:
A. If Developer 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 said work within such time, or if the Developer should be adjudged a bankrupt,
.or Developer should make a general assignment for the benefit of Developer's
creditors or if a receiver should be appointed in the event of Developer's insolvency,
City may draw upon Developer's letter of credit or other security in an amount or
amounts necessary to complete Developer's obligations hereunder.
B. If Developer or'any of Developer's contractors, subcontractors, agents
or employees should otherwise violate any of'the provisions of this Agreement
except Paragraph ll hereinabove, City shall, prior to drawing upon Developer's
letter of credit or other security, give Developer notice of such breach in the
manner set forth in Paragraph 15 hereof. If Developer fails to cure said
breach within ten (10) days of receipt of said notice, City may draw upon Developer's
letter of credit or other security in an amount or amounts necessary to complete
Developer's obligations hereunder.
C. In addition, if such l~ailure to perform as set forth above ~ncludes
failure to perform Developer's obligations under Paragraph 11 of this Agreement,
City may serve written notice upon Developer's sureties of breach of this Agreement
and may, thereafter, execute upon the bond provided for in said Paragraph 11.
14. Erosion Control:
Developer shall furnish landscape plans for street median islands and shall
adequately provide for erosion control within said median islands. Landscaping and
irrigation improvements shall be installed to the satisfaction of the Director of
Parks and Recreation.
15. 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 City
shall be addressed as follows:
City Clerk
City Hall, P.O. Box 711
South San Francisco, CA 94083
No~ices required to be given to Developer shall be addressed as follows:
Burger King Corporation
Attn: General Counsel'
7360 North Kendall Drive
P.O. Box 520783, General Mail Facility
Miami, Florida 33152
- provided that any party may change such address by notice in writing to the other
party and thereat'ret notices shall be addressed and transmitted to the new address.
j
16. As-Built Drawings:
Developer shall furnish City reproduceable plastic film as-built drawings
of the public improvements of the quality acceptable to the Director of Public
Services together with a certification by Developer's engineer that said improve-
ments have been constructed in accordance with the approved plans and specifications.
Developer shall furnish City with said as-built drawings concurrently with Developer's
request for acceptance of said improvements by City.
17, Parties Obligated:
Developer agrees that this Agreement shall bind Developer and Developer's
successors in interest and assi§ns of any nature or description.
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
a municipal corporation
( Mayor f ' ~
ATTEST:
DEVELOPER:
Burger ,:King Corporation
10
EXHIBIT "A"
Improvements and Required Items of Work for
EL CAMINO REAL AT CHESTNUT AVENUE
Agreement dated ]/25/84
le
Subdivider shall construct, furnish and install all public improvements
in accordance with the following drawing for Burger King Corp., South
San Francisco, and all approved revisions thereof, prepared by Mason-
Sulic, Civil and Design Consultants, signed by Thomas A. Mason (R.C.E.
No. 16652):
"Off Site Improvements" Drawing No. 83-265
Sheet 1 of 1, dated 10-20-83,
Revision 4, dated 1-24-84
e
Subdivider shall construct, furnish and install all landscape and irri-
gation improvements in accordance with the following drawings for Burger
King Corporation, and all approved revisions thereof, prepared by Mark D.
Backhaus, Landscape Architect:
"Landscape Plan", Sheet No. L-la, dated 11-4-85,
Revision 1, dated 11-21-83
"Landscape Plan", Sheet No. L-lb, dated 11-4-83,
Revision 1, dated 11-21-83
"Irrigation Plan", Sheet No. L-2a, dated 11-4-83,
Revision 1, dated 11-21-85
"Irrigation Plan"~ Sheet No. L-2b, dated 11-4-85,
Revision 1, dated 11-21-83
Subdivider shall file complete as-built improvement and utilityplans
prior to final acceptance of the work'performed under this Agreement.
Said plans shall consist of the original tracings or permanent "Mylar"
transparencies of a quality which complies with the Standards of the
City of South San Francisco as administered by the City Engineer, and
two sets of blue line prints.
Approved
Date
Directo~ of Services