HomeMy WebLinkAboutAgenda Report - June 3, 2015 C-10AGENDA ITEM 04010
CITY OF LODI
•1� COUNCIL COMMUNICATION
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AGENDA TITLE: Adopt Resolution Approving Final Map at 2600 Westgate Drive, Authorizing the
City Manager to Execute Public Improvement Agreement and Associated
Agreements; and Amending Traffic Resolution No. 97-148
MEETING DATE: June 3, 2015
PREPARED BY: Public Works Director
RECOMMENDED ACTION: Adopt a resolution approving final map at 2600 Westgate Drive,
authorizing the City Manager to execute the Public Improvement
Agreement and associated agreements; and amending Traffic
Resolution No. 97-148.
BACKGROUND INFORMATION: The project consists of public improvements for the development of a
retail commercial shopping center site at the southwest corner of the
Kettleman Lane/Lower Sacramento Road intersection as shown on
attached Exhibit 1. A portion of the Walmart store is currently under
construction on the site.
There are two parties to the Public Improvement Agreement, Wal-Mart Real Estate Business Trust
(Wal-Mart) and BDC Lodi III, Limited Partnership that is provided as Exhibit 2. The public improvements
will be installed in accordance with the terms and conditions of Resolution No. 2009-58 approved by
Council on May 13, 2009 and made part of the Public Improvement Agreement by reference.
The public improvements include street widening on Lower Sacramento Road and Kettleman Lane,
construction of Westgate Drive along the west project boundary from Kettleman Lane to the south
boundary of the development, modification of the southeast leg of the existing traffic signal at Kettleman
Lane and Westgate Drive; installation of a new traffic signal on Lower Sacramento Road to provide
signalized access to the project, and the southern Food 4 Less driveway; extension of public utilities in
Lower Sacramento Road, Westgate Drive, and along the south boundary of the development between
Lower Sacramento Road and Westgate Drive.
The Developer has furnished the City with the public improvement plans, final map, Public Improvement
Agreement, materials and performance bonds, insurance certificate, and fees for the proposed
development.
Wal-Mart and BDC are realigning the domestic outfall pipeline and the industrial waste outfall pipeline
between Lower Sacramento Road and Westgate Drive along the southern boundary of the development.
The City agreed to fund the pipeline material costs (excluding installation costs) for both pipelines at the
locations described below:
1. Pipe material costs for the domestic outfall pipeline between Lower Sacramento Road and Westgate
Drive along the southern boundary of the development.
2. Pipe material costs for the industrial waste outfall pipeline between Lower Sacramento Road and the
southern boundary of the development.
Based on the three pipe material bid prices submitted by Wal-Mart and BDC, the reimbursable costs
(material cost plus tax) are $154,080. Reimbursements shall be made when the subject pipeline
improvements have been fully constructed and accepted by the City.
CC_Improvement Agreement_latest.doc
5/27/2015
Resolution Approving Final Map, Public Improvement Agreement and Associated Agreements
Page 2
Vehicle access to the proposed shopping center is located on Lower Sacramento Road, Kettleman Lane,
and Westgate Drive south of Kettleman Lane. Westgate Drive, located west of the shopping center, will
dead-end at the southern boundary of the project. Westgate Drive will primarily serve the local traffic
accessing from Kettleman Lane to and from the new project. For traffic safety and circulation, staff
recommends establishing "No -Parking" and "Restricted Truck Access" zones on Westgate Drive between
Kettleman Lane and the southern boundary of the project.
As part of the Westside Master Plan (2001), Westgate Drive was designed to accommodate one travel
lane and a bicycle lane in each direction, a raised landscaped median, and left turn lanes at Kettleman
Lane and the shopping center's northern driveway. The proposed no -parking zone is required to
accommodate these lanes.
The project includes undergrounding existing overhead utilities and installing a new traffic signal on
Lower Sacramento Road at the project driveway on the west and the southern driveway at Food 4 Less
on the east. The existing signal at the Kettleman Lane/Westgate Drive intersection will be modified for
the new Westgate Drive on the south and the new westbound left turn lane on Kettleman Lane.
The installation of landscape improvements in the parkway area between the curb and sidewalk along
Kettleman Lane requires a Caltrans encroachment permit and maintenance agreement. Caltrans will not
issue encroachment permits or enter into agreements with private parties for this type of work.
Therefore, to obtain the encroachment permit, the City must execute the "Landscape and Improvements
Maintenance Agreement within State Highway Right of Way on Route 12 within the City of Lodi". A
separate maintenance agreement between the City and BDC will transfer all Caltrans landscape
maintenance requirements from the City to BDC. Both agreements are attached as exhibits to the
Improvement Agreement.
Staff recommends the following actions by resolution:
1. Approve Final Map and authorize the City Manager to execute the Improvement Agreement for the
Lodi Shopping Center.
2. Authorize the City Manager to execute the "Landscape and Improvements Maintenance Agreement
Within State Highway Right of Way on Route 12 Within the City of Lodi" with Caltrans; and a
Maintenance Agreement transferring those responsibilities for landscape improvements in the
Kettleman Lane (State Route 12) right-of-way to BDC.
3. Amend Section 2C of Traffic Resolution 97-148 Section 8(A) "Weight Limit/Commercial Vehicle
Restrictions" by approving the prohibition of commercial vehicles over two axles on Westgate Drive
from Kettleman Lane to the southern boundary of the project. In addition, Staff requests approval of
no -parking zones on Westgate Drive between Kettleman Lane and the south boundary of the project.
FISCAL IMPACT: A small increase in maintenance costs is anticipated for the additional public
improvements being installed as part of this project.
FUNDING: Pending Budget approval, funding for the pipe material reimbursement cost is
included in the FY15/16 Wastewater Capital Fund (531).
Jordan Ayers
Deputy City Manager/Internal Servic s Director
F. Wally&9andelin
Public Works Director
Prepared by Charlie Swimley, City Engineer
FWS/CS/eb
Attachment
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WHEN RECORDED, RETURN TO:
City Clerk
City of Lodi
221 West Pine Street
Lodi, CA 95240
IMPROVEMENT AGREEMENT
for the
PUBLIC IMPROVEMENTS
of
LODI SHOPPING CENTER
Lodi, California
Store No. 1789-03
THIS IMPROVEMENT AGREEMENT ("Agreement") is made and entered into by and between the CITY
OF LODI, a California municipal corporation ("City"), and Wal-Mart Real Estate Business Trust, a
Delaware statutory trust ("Developer"), and SDC Lodi 111, L.P., a California limited partnership ("BDC")
(Developer and BDC are collectively referred to herein as "Owners").
RECITALS:
WHEREAS, Owners have presented to City for approval a final map (based on the Vesting Tentative Map
for Lodi III, dated August 15, 2008 and approved by the Lodi City Council on May 13, 2009, pursuant to
Resolution No. 2009-58) hereinafter called "Map". The Map was filed with the Public Works Director for
presentation to the City Council for approval, and are hereby referred to and incorporated herein; and
WHEREAS, Walmart owns Parcel 12 of the Map ("Walmart Parcel"), and BDC owns Parcels 1 through 11
of the Map ("BDC Parcels"); and
WHEREAS, Owners have an approved shopping center development project, pursuant to City Council
Resolution No. 2009-58 ("Shopping Center") the terms and conditions of which are incorporated herein;
and
WHEREAS, Owners have requested approval of the Map prior to the construction and completion of
certain public improvements as described herein; and
WHEREAS, in connection with the construction of the Shopping Center, Developer will be constructing
certain streets, highways or public ways, and public utility facilities which are a part of, or appurtenant to,
the LODI SHOPPING CENTER ("Project"), as described in Resolution No. 200958 ("Improvements"), all
in accordance with, and as required by, the plans and specifications for all or any of said Improvements
in, appurtenant to, or outside the limits of Project, which plans and specifications are now on file in the
office of and endorsed with the approval of the Pubiic Works Director or designee; and
WHEREAS, BDC enters into and executes this Agreement with respect to Paragraphs 5, 20(B), 21, 22,
and 24 of this Agreement as specifically limited as set forth in these provisions; and
WHEREAS, Developer enters into and executes this Agreement with City and to meet the requirements
of Resolution No. 200958; and
Lodi Improvement Agreement 008 HNAL
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WHEREAS, this Agreement is executed pursuant to the provisions of the Subdivision Map Act of the
State of California and Titles 15 and 17 of the Lodi City Municipal Code ("LMC").
OPERATIVE PROVISIONS
NOW THEREFORE, for and in consideration of the acceptance of the dedications offered, and in order to
insure satisfactory performance by Developer of Developer's obligations under State law and City code,
the parties agree as follows:
Performance of Work by Developer.
Developer will do and perform, or cause to be done and performed at Developer's own expense,
in a good and workmanlike manner, and furnish all required materials, all under the direction and
to the satisfaction of City's Public Works Director or designee, all of the work and improvements
as shown on the approved improvement plans for the Project, Plan Set No. D165, which is on file
in the Public Works Department.
2. Development Changes.
Developer shall also perform all work and furnish all materials necessary to comply with any
changes required by the Public Works Director, which, in his opinion, are necessary or required to
complete the work in conformance with City Standards or are the result of changed conditions.
3. Performance of Work by City.
Prior to the approval of the Map by City, Developer shall deposit with the City the amount of
money shown as the "Developer Cost" on the Billing Schedule attached hereto as Exhibit "A" and
by this reference made a part hereof as though fully set forth.
From payments made under the Billing Schedule, Developer elects to have the City perform or
install or cause the installation of the following items:
A. Fire hydrant markers.
B. Televideo inspection of the public sewer and storm drain lines. The fee shown on the
Billing Schedule is based on the linear footage of sewer and storm drain pipe, including
laterals, shown on the improvement plans. The fee will be adjusted, if necessary, when
the televideo inspection is complete. Any additional fee must be paid prior to Project
acceptance.
Developer shall also pay all additional costs for work performed by the City that is deemed by the
Public Works Director or designee necessary to complete the work under this Agreement in
conformance with City Standards.
4. Development Impact Mitigation Fees.
Development Impact Mitigation Fees for water, wastewater, street improvements, storm drain,
police, fire, parks and recreation, general City facilities, and Art in Public Places are required for
the Project. Payment of the Development Impact Mitigation Fees shall be collected prior to
issuance of Certificate of Occupancy for each building in the Shopping Center. The Development
Impact Mitigation Fees are those in effect at the time of payment or occupancy, whichever occurs
first. In conformance with LMC 15.64.050, the fees are automatically adjusted on January 1s' of
each year, Fees may also be adjusted at other times by separate City Council action. The actual
amount of those Development Impact Mitigation Fees to be paid will be those amounts in effect at
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03 — 16170,12 1
the time of payment or occupancy, whichever occurs first. This Agreement shall in no way limit
City's ability to charge Owners the Development Impact Mitigation Fees in effect at the time each
of the Owners pays their respective Development Impact Mitigation Fees. BDC shall pay the
Development Impact Mitigation Fees attributable to the BDC Parcels, and Developer shall pay the
Development Impact Mitigation Fees attributable to the Walmart Parcel.
5. Reimbursement from Others.
Owners may be eligible for reimbursement from others for the cost of certain off-site public
improvements that benefit other properties. It is Owners' responsibility to request reimbursement
and submit the appropriate information per Lodi Municipal Code Section 17.62.
6. Work; Time for Commencement and Performance.
Developer shall, within eighteen (18) months from the date of this Agreement, perform or cause
to be performed all work and/or improvements described in this Agreement for the Project. At
least 15 calendar days prior to the commencement of work hereunder, Developer shall notify the
Public Works Director of the date fixed by Developer for commencement thereof so that City can
provide inspection services.
7. Time Extension.
Time is of the essence of this Agreement. City may extend the time for completion of the
improvements hereunder under the terms of an addendum to this Agreement which shall be
approved by the City Manager. Any such extension may be granted without notice to Developer's
surety, and extensions so granted shall not relieve the surety's liability on the bond to secure the
faithful performance of Developer under this Agreement. The City Manager shall be the sole and
final judge as to whether or not good cause has been shown to entitle Developer to an extension.
8. Record Drawings and Certifications.
Prior to acceptance of the Project improvements, Developer shall have installed and in place all
survey monuments as shown on the Map and shall provide record drawings and certifications as
described in the City of Lodi Public Improvement Design Standards.
9. Permits Compliance with Law.
Developer shall, at Developer's expense, obtain all necessary permits and licenses for the
construction of the improvements described in this Agreement, give all necessary notices, and
pay all fees and taxes required by law.
10. Superintendence by Developer.
Developer shall have a competent agent, foreman or superintendent, satisfactory to the Public
Works Director, on the work site at all times during construction, with authority to act for
Developer.
11. Inspection by City.
Developer shall at all times maintain proper facilities and provide safe access for inspection by
City to all parts of the work site. Inspections will be provided during normal working hours of City
staff. Developer will be billed for inspections on work performed on weekends, holidays and
overtime. Developer shall also pay all additional costs incurred by City for soils and materials
testing and/or inspection services, including storm water compliance inspections, required as a
part of City inspection activities.
Lodi LnP,'ovenlcnl A5,o91^an1008 FIN AI.
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12. Contract Security.
Concurrently with the execution of this Agreement, Developer shall furnish:
(i) Faithful Performance, Improvement Security of at least 100% of the estimated cost
of the public improvements required to be constructed and engineering costs of
surveying, record drawings and certifications as security for the faithful performance
of this Agreement; and
(ii) Labor and Materials. An amount equal to at least 50% of the above costs, excluding
deferred fees, as security for the payment of all persons performing labor and
furnishing materials in connection with this Agreement as more fully described in the
State Subdivision Map Act.
The City has determined these security amounts to be as follows:
Faithful Performance: $ 2,996,619.40
Labor and Materials: $ 1,498,309.70
Such security may be provided by a letter of credit in favor of City. Upon completion of the
Improvements, such security shall be returned to Developer (i.e., the letter of credit may be
extinguished) following the completion of the Improvements and acceptance of Improvements by
City.
13. Warranty Security.
Prior to acceptance of the Improvements by City, Developer shall furnish Warranty Security of at
least 10% of the total cost of the Improvements required to be constructed, as security for repair
or replacement of defective work as provided under Paragraph 18 of this Agreement. The
warranty period shall be two (2) years following the date of acceptance of the Improvements by
City. If any portion of the Improvements receives partial acceptance during the course of
construction, the warranty period for all required Improvements shall commence upon the date of
final acceptance for the Improvements. Such Warranty Security may be made by letter of credit
in favor of City. Such Warranty Security shall be released if no claim is made within two (2) years
following the acceptance of the Improvements by City.
14. Hold -Harmless Agreement.
Developer hereby agrees to, and shall, hold City, its elected and appointed boards, commissions,
officers, agents, and employees, harmless from any liability for damage or claims for damage
from personal injury, including death, as well as from claims for property damage which may arise
from Developer's or Developer's contractors', subcontractors', 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 Developer's contractors or subcontractors. Developer
agrees to, and shall, defend City and its elected and appointed boards, commissions, officers,
agents, and employees from any suits or actions at law or in equity 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 16 of
this Agreement.
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B. That the aforesaid hold -harmless agreement by Developer 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
prepared, supplied or approved of, plans and/or specifications for the Project, 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.
15. Developer's Insurance.
Developer shall not commence work under this Agreement until Developer, or Developer's
Contractor, shall have obtained all insurance required under this paragraph, which insurance
shall be maintained during the construction of the Improvements. 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
During the construction of the Improvements, Worker'
maintained for all employees employed at the site of
indemnifies City for any damage resulting to it from
contractor or subcontractor to take out or maintain such
for the construction of such Improvements.
B. Comprehensive General and Automobile Insurance
Worker's
Compensation Insurance shall be
improvement. Developer hereby
failure of either Developer or any
Worker's Compensation insurance,
Insurance as shall insure City, its elected and appointed boards, commissions, officers,
agents, and employees, Developer and any contractor or subcontractor performing 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 the Improvements or the
Project property, including any public streets or easements, from Developer's or any
contractors' or subcontractors' 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 amount of such insurance shall
be as follows:
1. COMPREHENSIVE GENERAL LIABILITY
$5,000,000 Bodily Injury - Each Occurrence/$10,000,000 Aggregate
$5,000,000 Property Damage - Each Occurrence/$10,000,000 Aggregate
2. COMPREHENSIVE AUTOMOBILE LIABILITY
$5,000,000 Combined Single Limit
Above limits may be met through a combination of primary and excess coverages.
Developer must have comprehensive automobile liability only if Developer's vehicles are
used for construction of the Improvements or on the Project property.
NOTE: Developer agrees and stipulates that any insurance coverage provided to the City of
Lodi shall provide for a claims period following termination of coverage which is at least
consistent with the claims period or statutes of limitations found in the California Tort Claims
Act (California Government Code Section 810 et seq.).
Lodi Lnpmvcmm.. � Agmen,,m 008 FINAL
W2060-3odi CA', Srom 01"189-0--1617042.1
"Claims made" coverage requiring the insureds to give notice of any potential liability during a
time period shorter than that found in the Tort Claims Act shall be unacceptable.
A copy of the certificate of insurance with the following endorsements shall be furnished to
the City:
A. Additional Named Insured Endorsement
Such insurance as is afforded by this policy shall also apply to the City of Lodi, its elected
and appointed boards, commissions, officers, agents and employees as additional
named insured insofar as work performed by the insured under written contract with the
City of Lodi. This endorsement shall be on the form furnished by City and shall be
included with Developer's policies.
B. Primary Insurance Endorsement
Such insurance as is afforded by the endorsement for the additional insureds shall apply
as primary insurance. Any other insurance maintained by the City of Lodi or its elected
and appointed boards, commissions, officers, agents and employees shall be excess
only and not contributing with the insurance afforded by this endorsement.
C. Severability of Interest Clause
The term "insured" is used severally and not collectively, but the inclusion herein of more
than one insured shall not operate to increase the limit of the Developer's liability.
Developer shall have the right to satisfy its insurance obligations hereunder through a program of
self-insurance. If Developer exercises this right, Developer agrees to deliver evidence of self-
insured coverage in a form satisfactory to City.
16. Evidence of Insurance.
Developer shall furnish City, concurrently with the execution of this Agreement, with satisfactory
evidence of the insurance required by Paragraph 15 of this Agreement and evidence that each
carrier is required to give City at least 30 days prior notice of the cancellation or reduction in
coverage of any policy during the effective period of this Agreement. The address of the City of
Lodi must be shown on the certificate of insurance, i.e., City of Lodi, 221 West Pine Street, Lodi,
CA, 95240.
17. Title to Improvements.
Title to, and ownership of, the Improvements constructed hereunder by Developer shall vest
absolutely in City upon completion and acceptance of such public improvements by City.
18. Repair or Reconstruction of Defective Work.
If, within a period of two (2) years after final acceptance by City 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 Developer, or any of the work done under this
Agreement, including the mitigation measures for dust and erosion control, fails to fulfill any of the
requirements of this Agreement or the plans and specifications referred to herein, Developer and
Developer's surety shall, without delay and without cost to City, repair or replace or reconstruct
any defective or otherwise unsatisfactory part or parts of the work or structure. Should Developer
or Developer's surety 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 Developer can be
Lodi Improvcmcnl Agi'emnew 008 FINAL
W2060-1.odi 6A'. Stoic 111"189-03--1617042.1
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 15% for
administration and overhead costs.
19. Repair or Replacement of City -Owned Bypass Meter Assemblies.
Developer is required by City to install bypass meter assemblies in conjunction with the
installation of water mains in the City of Lodi. City will supply these assemblies upon receipt of a
deposit in the amount of $5,000.00 for each assembly required. The purpose of the deposit is to
guarantee the return of the assembly in good condition and fulfillment of the other obligations
shown in the City's Policies and Procedures entitled "Metering Water Usage of New Water Mains
Requiring Temporary Bypasses."
20. Mud. Debris. Dust and Erosion.
A. Developer
During construction of the Improvements, and in connection with subsequent construction
undertaken by Developer on the Walmart Parcel or BDC Parcels, Developer agrees and
covenants that it will undertake commercially reasonable efforts to prevent mud or other
debris to be tracked from the construction site or elsewhere onto City or State roadways or
onto private property without express permission. Developer further agrees not to cause
damage to City or County streets. Should any mud or debris be deposited in City or State
roadways or any damage caused to City or County streets as a result of such construction by
Developer, Developer shall have the same removed or repaired forthwith, and if not removed
or repaired upon notice within a specified time, City shall cause the same to be removed or
repaired and Developer shall be charged for the cost of said removal or repairs.
Developer, Developer's contractor, subcontractors, and/or agents shall be responsible so no
dust or erosion problems are created during construction, including installation of
Improvements. Developer's responsibility for dust and erosion control shall extend until final
acceptance by City of the Improvements under this Agreement. In addition, Developer shall
be solely responsible for dust and erosion control on the Walmart Parcel and the BDC
Parcels, to the extent of Developer's work on the BDC Parcels.
If a dust or erosion problem arises during construction of the Improvements, or construction
on the Walmart Parcel or BDC Parcels by Developer, before final acceptance by City of the
work performed under this Agreement, including Improvements, and has not, after notice,
been abated by Developer within a specified period of time, or if a dust or erosion problem
arises during subsequent construction by Developer on the Walmart Parcel or BDC Parcels,
City shall cause the same to be controlled, and Developer shall be charged with the cost of
said control.
MlA
In connection with any construction undertaken by BDC on the BDC Parcels, BDC agrees
and covenants that it will undertake commercially reasonable efforts to prevent mud or other
debris to be tracked from the construction site or elsewhere onto City or State roadways or
onto private property without express permission. BDC further agrees not to cause damage
to City or State roadways. Should any mud or debris be deposited in City or County streets
or any damage caused to City or State roadways as of such construction by BDC, BDC shall
have the same removed or repaired forthwith, and if not removed or repaired upon notice
within a specified time, City shall cause the same to be removed or repaired and BDC shall
be charged for the cost of said removal or repairs.
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W2060 Lodi CA, Slorc 01989-0J- 16170921
21. Fire Protection During Construction.
Fire protection facilities approved by City's Fire Chief, including all-weather access road and an
approved water supply capable of supplying the required fire flow, shall be installed and made
serviceable in accordance with the City Fire Code (as set forth in the Lodi Municipal Code) prior
to and during the time of building construction. The above may be modified when alternate
methods of protection approved by the Fire Chief are provided. This provision shall apply
individually to the Walmart and BDC Parcels.
22. Protection of Existing Improvements.
Damage to any existing improvements or private or public utility lines installed or being installed
which damage occurs during the onsite and offsite construction required of Developer under this
Agreement, shall be the absolute responsibility and liability of Developer. In other words, it shall
be Developer's responsibility to pay for damage to existing improvements and public or private
utilities within the Project property. Damage to any existing facilities outside the limits of the
Project damaged as part of the construction of the required Project improvements is also
Developer's responsibility.
City will not allow occupancy of any building or structure within the Project or issue any Certificate
of Occupancy for such building until all fees required for that building have been paid,
Improvements have been approved and accepted by the Public Works Department per
established City policy, and other requirements of City Codes for the Project have been met. If
building is started prior to acceptance of the Improvements, it is Developer's responsibility with
respect to the Walmart Parcel, and BDC's responsibility with respect to the BDC Parcels to inform
all prospective purchasers that occupancy will not be permitted until said fees are paid and
Improvements are so accepted by City.
23, City Reimbursement for Public Domestic and Industrial Sewer Waste Lines. In connection with
the construction of the Improvements, Developer is constructing and installing sewer lines (i.e. a
public domestic and industrial sewer waste lines) that are beneficial to the City ("Sewer Lines').
City agrees to reimburse Developer for the materials cost to Developer (lowest unit cost per lineal
foot, plus tax) for such Sewer Lines, which reimbursement shall be made within forty-five (45)
days of City's acceptance of the Improvements, together with reasonable documentation of
competitive pricing or use of a competitive bidding process supporting the cost of the City
approved materials charged to Developer for such Sewer Lines.
24. Sidewalk and Landscape Maintenance. In connection with the construction of the Improvements,
Developer is constructing a sidewalk, landscaping and irrigation along the California Department
of Transportation ("Caltrans") right of way (collectively "Caltrans Landscaping"). City will be
required to enter into an agreement with Caltrans following execution of this Agreement
("Caltrans Maintenance Agreement"), pursuant to which City will agree to maintain the Caltrans
Landscaping. Owners hereby assume such maintenance obligations of City pursuant to the
Caltrans Maintenance Agreement, and agree to maintain the Caltrans Landscaping from and
after the construction of such landscape improvements pursuant to this Agreement and further
agree to execute an Agreement for Maintenance of Private Improvements in a form attached
hereto as Exhibit "B". Parties acknowledgement that the Agreement for Maintenance of Private
Improvements will be revised to include the applicable Assessor's Parcel Numbers to be
assigned following recordation of the final map.
25. Developer Not Agent of City.
Neither Developer nor any of Developer's agents, contractors, or subcontractors are or shall be
considered to be agents of City in connection with the performance of Developer's obligations
under this Agreement.
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26. Notice of Breach and Default.
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 Developer should be adjudged
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, or if
Developer or any of Developer's contractors, subcontractors, agents, or employees, should
violate any of the provisions of this Agreement, the Public Works Director or City Council may
serve written notice upon Developer with a copy to BDC and Developer's surety of breach of this
Agreement, or any portion thereof, and the default of Developer. Developer shall have a period
of ten (10) business days from the receipt of such notice to cure such breach of default, or, in the
event such breach or default takes in excess of ten (10) business days to cure, to commence
such cure and diligently prosecute such cure to completion. City shall not exercise any remedies
unless Developer fails to cure such default within such ten (10) business day period.
27. Breach of Agreement: Performance by Surety or City.
In the event Developer fails to cure such default pursuant to Section 26 above, Developer's
surety shall have the duty to take over and complete the work and the improvements herein
specified; provided however, that if the surety, within fifteen calendar 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 this Agreement, and does not commence performance thereof within ten calendar
days after notice to City of such election, City may take over the work and prosecute the same to
completion, by contract or by any other method City may deem advisable, for the account and at
the expense of Developer, and Developer's surety shall be liable to City for any excess cost or
damage 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 Developer as may be on the site of the work and necessary therefor.
28. Notices.
All notices and other communications required or permitted to be given
writing and shall be sent by: (i) certified or registered mail, postage
requested, (ii) personal delivery, or (iii) a recognized overnight carrier
delivery, and shall be addressed as follows:
Notices required to be given to City shall be addressed as follows:
F. Wally Sandelin
Public Works Director
City of Lodi
221 West Pine Street
P. O. Box 3006
Lodi, CA 95241-1910
[The balance of this page is intentionally left blank.]
hereunder shall be in
prepaid, return receipt
that provides proof of
I.oni hlyl. cn,cnl Ag,wmcnl 008 FINAL
W2060-I.odi CA, Swre 0789-4i--1617092.1
Notices required to be given to Developer shall be addressed as follows:
Wal-Mart Real Estate Business Trust
Attn: Real Estate Manager
(Ref: Lodi, California
Store No. 1789-03)
2001 SE 10th Street
Bentonville, AR 72716-0550
Wal-Mart Real Estate Business Trust
Attn: Mary Kendall, Esq.
(Ref: Lodi, California
Store No. 1789-03)
2001 SE 10'h Street
Bentonville, AR 72716-0550
Gresham Savage Nolan & Tilden
Attn: J. Matthew Wilcox, Esq.
(Ret: Lodi, California
Store No. 1789-03)
550 E. Hospitality Lane, Suite 300
San Bernardino, CA 92408-4205
Notices required to be given to BDC shall be addressed as follows:
Browman Development Company
Attn: Darryl Browman
1556 Parkside Drive
Walnut Creek, CA 94596
Browman Development Company
Attn: Mario Albert, Esq.
1556 Parkside Drive
Walnut Creek. CA 94596
Noticed are deemed effective upon receipt or rejection only. Provided that either party or the
surety may change such address by notice in writing in the manner set forth above, to the other
party and thereafter notices shall be addressed and transmitted to the new address.
[The balance of this page is intentionally left blank.]
we,
LAi In,luovenm,a ngrccmcm 008 FINN,
W2060 -Lodi Cn; Sm. 11789-03-1619042..1
30. Authority.
The undersigned hereby represent and warrant that they are authorized by the parties to execute
this Agreement.
In Witness Whereof, Walmart, SDC, and City have caused their names and corporate seals to be
hereunto affixed.
"WALMART"
WAL-MART REAL ESTATE BUSINESS TRUST,
a Delaware statutory trust
By:
Name:
Its: Vice President of Real Estate
(CORPORATE SEAL)
"BDC"
BDC LODI III, L.P., a California limited partnership
By:
Name:
Its:
Date:
CITY OF LODI, a municipal corporation
Dated: By:
STEPHEN SCHWABAUER
City Manager
ATTEST:
JENNIFER M. FERRAIOLO
City Clerk
APPROVED AS TO FORM:
JANICE D. MAGDICH
City Attorney
(CORPORATE SEAL)
11
Lodi Improvement Agreement 008 FINAL,
W2060•Lodi CA; StoreH1799-01-- 1617042.1
EXHIBIT "A"
BILLING SCHEDULE
EXHIBIT "A"
W2060-1-nJi_G1„St., Mi78M3- 1619042 1
EXHIBIT A
r
BILLING SCHEDULE
Developmen Wal-Mart Realestate Business Trust
Building SF/1000:
Varies
Developer: Browman Development Company
No. of Units:
12
Engineer: PacLand Engineering
Date: 5/15/15
Construction
cost
(City Cost Schedule)
$2„996,619.40
DEVELOPER
COST
CREDITS
ENGINEERING
Engineering Fee (5% of $100,000)
(1001.6121)
$
5,000.00
(3.5% of $200,000)
(1001.6121)
7,000.00
(2.5% of $2,696,619)
(1001.6121)
67,415.48
Inspection Fee (4% of $250.000)
(1001 6104)
10,000.00
(3,5% of $750,000)
(1001.6104)
26,25000
(3% of $1,996,619)
(1001,6104)
49,915.48
Engineering Fee Paid
(1001.6121)
$
97,127.63
ENGINEERING SUBTOTAL
$
165,580.97 $
97,127.63
_STREET SYSTEM
Storm Water Inspection Fees (1701.6525)
1 LS @ $
4,855.00
$4,855.00
STREET SYSTEM SUBTOTAL
$4,855.00
$0.00
SEWER SYSTEM
Reimbursement of Pipe Material
24 -inch Domestic Wastewater Pipe
1322 LF @ $
39.17
$51,782.74
30 -inch Domestic Wastewater Pipe
47 LF @ $
74.29
$3,491.63
30 -inch Industrial Wastewater Pipe
1330 LF @ $
74.29
$98.805.70
Reimbursement Total (At Project Acceptance)
$154,080.07
Charges for Work by City Forces:
TV Inspection (1701,6525)
3,910 LF @ $
1 50
5,865.00
SEWER SYSTEM SUBTOTAL (Not Including Reimburseable
Amount)
$5,865.00
STORM DRAIN SYSTEM
Charges for Work by City Forces:
TV Inspection (1701.6525)
2,740 LF @ $
1.50
4,110.00
STORM DRAIN SYSTEM SUBTOTAL
$4,110.00
$0.00
ELECTRICAL SYSTEM
To be billed separately by Electric Utility Department
SUBTOTAL OF FEES /CREDITS
$180,410.97
$97.127.63
Reimbursement Agreement RA -02-02
$47,204.86
Reimbursement Agreement RA -08-01 (S/W signal pole relocated)
$208,617.60
(Reimbursement amount minus the cost to relocale 1 o/ 2 signal poles)
Resolution No. 2007-52
$94,97521
TOTAL OF DEVELOPER FEES
$531,208.64
LESS FEES PAID
$97,127.63
(AMOUNT DUE AT FILING OF FINAL MAP)
$434,081.01
r
EXHIBIT "B"
AGREEMENT FOR MAINTENANCE OF PRIVATE IMPROVEMENTS
WITHIN STATE HIGHWAY RIGHT OF WAY ALONG
STATE ROUTE 12 FRONTAGE OF THE LODI SHOPPING CENTER DEVELOPMENT
EXHIBIT "B"
\V2060 Lodi CA, Slam 111989-0J--161]042.1
WHEN RECORDED, RETURN TO: To be finalized following
City Clerk recordation of final map
City of Lodi
221 West Pine Street
Lodi, CA 95240
AGREEMENT FOR MAINTENANCE OF PRIVATE IMPROVEMENTS
WITHIN STATE HIGHWAY RIGHT OF WAY ALONG
STATE ROUTE 12 FRONTAGE OF THE LODI SHOPPING CENTER DEVELOPMENT
(APNs xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx)
THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a
municipal corporation ("City"), and BDC Lodi III, a California limited partnership
("Developer"), collectively "Parties".
RECITALS:
WHEREAS, Developer recorded a parcel map for on in Book of Parcel
Maps, at Page _ in the Office of the San Joaquin County Recorder, creating—Assessor's
Parcel Numbers xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx, and xxx-xxx-xx, to develop a
commercial shopping center known as LODI SHOPPING CENTER located south of State
Route 12 (Kettleman Lane) and west of Lower Sacramento Road, in the City of Lodi; and
WHEREAS, Developer is the owner of those parcels known as APNs xxx-xxx-xx, xxx-xxx-xx,
xxx-xxx-xx, xxx-xxx-xx, and xxx-xxx-xx; and
WHEREAS, the Developer is required as a condition of development for the commercial
shopping center, to install and maintain private landscape and irrigation improvements along
the State Route 12 frontage of the LODI SHOPPING CENTER development (impacting
APNs xxx-xxx-xx, xxx-xxx-xx, xxx-xxx-xx, and xxx-xxx-xx); and
WHEREAS, a portion of the required landscape and irrigation improvements will encroach
into the State Route 12 right-of-way; and
WHEREAS, an encroachment permit must be obtained from the State of California
Department of Transportation ("Caltrans"), to allow the installation and maintenance of the
encroaching improvements; and
WHEREAS, the Caltrans has required that the City obtain the encroachment permit and
execute an Agreement for maintenance of the encroaching improvements;
NOW THEREFORE, the Parties agree as follows:
1. City shall execute the Agreement with Caltrans entitled "Landscape and Improvement
Maintenance Agreement within State Highway Right of Way on Route 12 within the City
of Lodi" ("Caltrans Agreement"), to include the encroaching improvements to be
constructed with the LODI SHOPPING CENTER development. The Caltrans Agreement
is attached hereto as Exhibit A and made a part hereof.
�7:ffE7�if-
Landscape Maintenance Agreement.doc
2. Developer agrees to assume all responsibilities of City under the terms of the Caltrans
Agreement for maintenance of the private landscape and irrigation improvements along
and within the State Route 12 frontage of the LODI SHOPPING CENTER development.
The location of the encroaching improvements is shown in Exhibit A. City is to incur no
expense in the installation or on-going maintenance and repair of the encroaching
improvements.
3. Developer agrees to save, defend, indemnify and hold harmless the City, its officers,
elected and appointed officials, agents, and employees, from liability of any nature
whatsoever arising from Developer's use or occupation of Caltrans right-of-way.
4. Developer further agrees to save, defend, indemnify and hold harmless the City, its
officers, elected and appointed officials, agents and employees from damage of any sort
occasioned by Caltrans' entry upon or use of Caltrans right-of-way or Caltrans action
requiring the removal and relocation of the encroaching improvements.
5. This Agreement shall run with the land and be binding on the Developer, its heirs,
successors or assigns.
6. All correspondence to Developer shall be mailed to the following addresses:
BROWMAN DEVELOPMENT COMPANY
Attn: Darryl Browman
1556 Parkside Drive
Walnut Creek, CA 94596
BROWMAN DEVELOPMENT COMPANY
Attn: Mario Albert, Esq,
1556 Parkside Drive
Walnut Creek, CA 94596
Herein is set forth the entire agreement between the Parties. The performance of these
conditions constitutes full performance and shall relieve City of all further obligations or
claims.
8. In the event either party hereto breaches the terms, conditions and covenants of this
Agreement, then, the prevailing party in any suit to enforce this Agreement or restrain the
breach thereof, shall in addition to any other relief or damages awarded, be entitled to a
reasonable attorney's fee and all costs of suit to be set and determined by any court of
competent jurisdiction and added to any judgment obtained.
9. This Agreement and the attachments thereto, shall be recorded in the office of the San
Joaquin County Recorder, 44 N. San Joaquin Street, Suite 260, Stockton, California,
95202.
[The balance of this page is intentionally left blank.]
EXHIBIT B
Landscape Maintenance Agreement.doc
IN WITNESS WHEREOF, Developer and City have caused their names to be hereunto
affixed and the City of Lodi has caused its corporate name and seal to be hereunto affixed by
its proper officers thereunto duly authorized.
BDC Lodi III, a California limited partnership
Date
CITY OF LODI, A MUNICIPAL CORPORATION
By:
Stephen Schwabauer, City Manager
ATTEST:
Jennifer M. Ferraiolo, City Clerk
APPROVED AS TO FORM:
Janice D. Magdich, City Attorney
Landscape Maintenance Agreement.doc 3
Date
Date
(CORPORATE SEAL)
EXHIBIT B
EXHIBIT "A"
LANDSCAPE AND IMPROVEMENTS MAINTENANCE AGREEMENT
WITHIN STATE HIGHWAY RIGHT OF WAY
ON ROUTE 12 WITHIN THE CITY OF LODI
Exhibit "A"
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LANDSCAPE AND IMPROVEMENTS MAINTENANCE AGREEMENT
WITHIN STATE HIGHWAY RIGHT OF WAY
ON ROUTE 12 WITIIIN TIIE CITY OF LODI
THIS AGREEMENT is made effective this day of _ 2015, by and between
the State of California, acting by and through the Department of Transportation, hereinafter
referred to as "STATE" and the CITY of LODI; hereinafter referred to as "CITY" and
collectively referred to as "PARTIES".
SEiCTION I
RECITALS
1. PARTIES desire to work together to allocate their respective obligations relative to newly
constructed or revised improvements within STATE's right of way by Permit Number
1012-6MC-0763.
2. This Agreement addresses CITY responsibility .for the planting and irrigation system,
sidewalks/bilcepaths, median concrete, ADA curb ramps, drainage system (collectively
the "LANDSCAPING AND IMPROVEMENTS") placed within State Highway right of
way on State. Route 12, as shown on Exhibit A, attached to and made a part of this
Agreement.
NOW THEREFORE, ITIS AGREED AS FOLLOWS:
SECTION II
AGREEMENT
In consideration of the mutual covenants and promises herein contained, CITY and
STATE agree as follows:
3.1. PARTIES have agreed to an allocation of maintenance responsibilities that includes,
but is not limited to, inspection, providing emergency repair, replacement, and
maintenance, (collectively hereinafter "MAINTAIN/MAINTENANCE") of
LANDSCAPING AND IMPROVEMENTS as shown on said Exhibit "A."
3.2. When a planned future improvement is constructed and/or a minor revision has been
effected with STATE's consent or initiation within the limits of the STATE's right of
way herein described which affects PARTIES' Division of Maintenance's
responsibility as described herein, PARTIES will agree upon and execute a new
dated and revised Exhibit "A" which will be made a part hereof and will thereafter
supersede the attached original Exhibit "A" to thereafter become a part of this
Agreement. The new exhibit can be executed only upon written consent of the
PARTIES hereto acting by and through their authorized representatives. No formal
amendment to this Agreement will be required.
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4. CITY agrees, at CITY expense, to do the following:
4.1. CITY may install, or contract, authorizing a licensed contractor with appropriate
class of license in the State of California, to install and thereafter will MAINTAIN
(Section 27 of the Streets and Highways Code) LANDSCAPING AND
IMPROVEMENTS conforming to those plans and specifications (PS&E) pre -
approved by STATE.
4.2. CITY will submit the final form of the PS&E, prepared, stamped and signed by a
licensed landscape architect, for LANDSCAPING and a licensed civil engineer for
IMPROVEMENT'S to STATE's District Permit Engineer for review and approval
and will obtain and have in place a valid necessary encroachment permit prior to the
start of any work within STATE'S right of way. All proposed LANDSCAPING
AND IMPROVEMENTS must meet STATE's applicable standards.
4.3. CITY shall ensure that LANDSCAPED AND IMPROVED areas designated on
Exhibit "A" are provided with adequate scheduled routine MAINTENANCE
necessary to MAINTAIN a neat and attractive appearance.
4.4. An Encroachment Permit rider may be required for any changes to the scope of work
allowed by this Agreement prior to the start of any work within STATE's right of
way.
4.5. CITY contractors will be required to obtain an Encroachment Permit prior to the start
of any work within STATE's right of way.
4.6. To furnish electricity for irrigation system controls, water, and fertilizer necessary to
sustain healthy plant growth during the entire life of this Agreement.
4.7. To replace unhealthy or dead plantings when observed or within 30 days when
notified in writing by STATE that plant replacement is required.
4.8. To prune shrubs, tree plantings, and trees to control extraneous growth and ensure
STATE standard lines of sight to signs and corner sight distances are always
maintained for the safety of the public.
49. To MAINTAIN, repair and operate the irrigation systems in a manner that prevents
water from flooding or spraying onto STATE, highway, spraying parked and moving
automobiles, spraying pedestrians on public planting and irrigation system,
sidewalks/bike paths, median concrete, ADA curb ramps, drainage system or
leaving surface water that becomes a hazard to vehicular or pedestrian/bicyclist
travel.
4.10. To control weeds at a level acceptable to the STATE. Any weed control
performed by chemical weed sprays (herbicides) shall comply with all laws, rules,
and regulations established by the California Department of Food and Agriculture.
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All chemical spray operations shall be reported quarterly (Form LA17) to the
STATE to: District Maintenance at 1976 F. Dr. Martin Luther King Jr. Blvd,
4.11. To remove LANDSCAPING AND IMPROVEMENTS and appurtenances and
restore STATE owned areas to a safe and attractive condition acceptable to STA'L'E in
the event this Agreement is terminated as set forth herein.
4.12. To inspect LANDSCAPING AND IMPROVEMENTS on a regular monthly or
weekly basis to ensure the safe operation and condition of the LANDSCAPING AND
IMPROVEMENTS.
4.13. To expeditiously MAINTAIN, replace, repair or remove from service any
LANDSCAPING AND IMPROVEMENTS system component that has become unsafe
or unsightly.
4.14. To MAINTAIN all planting and irrigation system, sidewalks/bike paths, median
concrete, ADA curb ramps, drainage system within the Agreement limits of the
STATE highway right of way, as shown on Exhibit A, at CITY expense.
MAINTENANCE includes, but is not limited to, concrete repair, replacement and to
grind or patch vertical variations in elevation of planting and irrigations system,
sidewalks/bike paths, median concrete, ADA curb ramps, drainage system for an
acceptable walking and riding surface, and the removal of dirt, debris, graffiti, weeds,
and any deleterious item or material on or about planting and irrigation system,
sidewalks/bike paths, median concrete, ADA curb ramps, drainage system or the
LANDSCAPING AND IMPROVEMENTS in an expeditious manner.
4.15. 'to MAINTAIN all parking or use restrictions signs encompassed within the area
of the LANDSCAPING AND IMPROVEMENTS.
4.16. To allow random inspection of LANDSCAPING AND IMPROVEMENTS,
planting and irrigations system, sidewalks/bike paths, median concrete, ADA curb
tamps, drainage system and signs by a STATE representative.
4.17. To keep the entire landscaped and improved area policed and free of litter and
deleterious material.
4.18. All work by or on behalf of CITY will be done at no cost to STATE.
5. STATE agrees to do the following:
5.1. May provide CITY with timely written notice of unsatisfhetory conditions that
require correction by the CITY. However, the non -receipt of notice does not excuse
CITY from maintenance responsibilities assumed under this Agreement.
5.2. Issue encroachment permits to CITY and CITY contractors at no cost to them.
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6. LEGAL RELATIONS AND RESPONSIBILITIES:
6.1. Nothing within the provisions of this Agreement is intended to create duties or
obligations to or rights in third PARTIES not PAR'T'IES to this Agreement, or affect
the legal liability of either PARTY to this Agreement by imposing any standard of
care respecting the design, construction and maintenance of these STATE highway
improvements or CITY facilities different from the standard of care imposed by law.
6.2. If during the term of this Agreement, CITY should cease to MAINTAIN the
LANDSCAPING AND IMPROVEMENTS to the satisfaction of STATE as
provided by this Agreement, STATE may either undertake to perform that
MAINTENANCE on behalf of CITY at CITY's expense or direct CITY to remove
or itself remove LANDSCAPING AND IMPROVEMENTS at CITY's sole expense
and restore STATE's right of way to its prior or a safe operable condition. CITY
hereby agrees to pay said STATE expenses, within thirty (30) days of receipt of
billing by STATE. However, prior to STATE: performing any MAINTENANCE or
removing LANDSCAPING AND IMPROVEMENTS, STATE will provide written
notice to CITY to cure the default and CITY will have thirty (30) days within which
to affect that cure.
6.3. Neither CITY nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
STATE, under or in connection with any work, authority or jurisdiction arising under
this Agreement. It is understood and agreed that STATE shall fully defend,
indemnify and save harmless CITY and all of its officers and employees from all
claims, suits or actions of every name, kind and description brought forth under,
including, but not limited to, tortious, contractual, inverse condemnation and other
theories or assertions of liability occurring by reason of anything done or omitted to
be done by STATE under this Agreement with the exception of those actions of
STATE necessary to cure a noticed default on the part of CITY.
6.4. Neither STATE nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
CITY under or in connection with any work, authority or jurisdiction arising under
this Agreement. It is understood and agreed that CITY shall fully defend, indemnify
and save harmless STATE and all of its officers and employees from all claims, suits
or actions of every name, kind and description brought forth under, including, but
not limited to, tortious, contractual, inverse condemnation or other theories or
assertions of liability occurring by reason of anything done or omitted to be done by
CITY under this Agreement.
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7. PREVAILING WAGES:
7.1. Labor Code Comnliance- If the work performed on this Project is done under
contract and falls within the Labor Code section 1720(a)(1) definition of a "public
work" in that it is construction, alteration, demolition, installation, or repair; or
maintenance work under Labor Code section 1771. CITY must conform to the
provisions of Labor Code sections 1720 through 1815, and all applicable provisions
of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles
1-7. CITY agrees to include prevailing wage requirements in its contracts for public
work. Work performed by CITY'S own forces is exempt from the Labor Code's
Prevailing Wage requirements.
7.2. Ruirements in Subcontracts - CITY shall require its contractors to include
Prevailing wage requirements in all subcontracts funded by this Agreement when the
work to be performed by the subcontractor is a "public work" as defined in Labor
Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include
all prevailing wage requirements set forth in CffY's contracts
8. INSURANCE, - CITY and its contractors shall maintain in force, during the term of this
agreement, a policy of general liability insurance, including coverage of bodily injury
liability and property damage liability, naming the STATE, its officers, agents and
employees as the additional insured in an amount of $1 million per occurrence and $2
million in aggregate. Coverage shall be evidenced by a certificate of insurance in a form
satisfactory to the STA116? that shall be delivered to the STATE, with a signed copy of this
Agreement.
8,1. SELF-INSURED - CITY is self insured. CITY agrees to deliver evidence of self-
insured
elfinsured coverage in a form satisfactory to S'fA'1'1:i, along with a signed copy of the
Agreement.
9. TERMINATION - This Agreement may be terminated by timely mutual written consent
by PARTIES, and CPTY's failure to comply with the provisions of this Agreement may
be grounds for a Notice of Termination by STATE.
10. TERM OF AGREEMENT -This Agreement shall become effective on the date first
shown on its face sheet and shall remain in full force and effect until amended or
terminated at any time upon mutual consent of the PARTIES or until terminated by
STATE for cause.
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PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this
Agreement and have delegated to the undersigned the authority to execute this Agreement on
behalf of the respective agencies and covenants to have followed all the necessary legal
requirements to validly execute this Agreement.
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year
first above written.
THE CITY OF LODI
By:
STEVE SCHWABAUER
City Manager
ATTEST:
By: —
JENNIFER M. FERRAIOLO
City Clerk
By:
JANICE MAGDICH
City Attorney
STATE OF CALIFORNIA
DEPARTMENTOF TRANSPORTATION
MALCOLM DOUGHERTY
Director of Transportation
By:
DEBRA "SAM" HAACIZ
Deputy District Director
Maintenance and Operations
District 10
I0:4:u:3rWmvl
LANDSCAPING AND IMPROVEMENTS
Exhibit "A"
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RESOLUTION NO. 2015-69
A RESOLUTION OF THE LODI CITY COUNCIL APPROVING
THE FINAL MAP FOR 2600 WESTGATE DRIVE, AUTHORIZING
THE CITY MANAGER TO EXECUTE THE IMPROVEMENT
AGREEMENT AND ASSOCIATED AGREEMENTS, AMENDING
TRAFFIC RESOLUTION NO. 97-148, AND APPROVING
NO -PARKING ZONES ON WESTGATE DRIVE
WHEREAS, the project consists of public improvements for the development of a retail
commercial shopping center site at the southwest corner of Kettleman Lane and Lower Sacramento
Road; and
WHEREAS, there are two parties to the Public Improvement Agreement, Wal-Mart Real
Estate Business Trust (Wal-Mart) and BDC Lodi III, L.P. (BDC); and
WHEREAS, the public improvements will be installed in accordance with the terms and
conditions of Resolution No. 2009-58, approved by the City Council on May 13, 2009, and made a
part of the Improvement Agreement by reference; and
WHEREAS, the public improvements specifically include street widening on
Lower Sacramento Road and Kettleman Lane; construction of Westgate Drive along the west project
boundary from Kettleman Lane to the southern boundary of the development; modification of the
southern leg of the existing traffic signal at the intersection of Kettleman Lane and Westgate Drive;
installation of a new traffic signal on Lower Sacramento Road to provide signalized access to the
project and the southern Food 4 Less driveway; and the extension of public utilities in
Lower Sacramento Road, Westgate Drive, and along the south boundary of the project between
Lower Sacramento Road and Westgate Drive; and
WHEREAS, Wal-Mart and BDC are realigning the domestic outfall pipeline and the industrial
waste outfall pipeline between Lower Sacramento Road and Westgate Drive along the southern
boundary of the development; and
WHEREAS, the City has agreed to fund the pipeline material costs (excluding installation
costs) for both pipelines at the locations described as 1) Pipe material costs for the domestic outfall
pipeline between Lower Sacramento Road and Westgate Drive along the southern boundary of the
development; and 2) Pipe material costs for the industrial waste outfall pipeline between
Lower Sacramento Road and the southern boundary of the development; and
WHEREAS, based on the three pipe material bid prices submitted by Wal-Mart and BDC, the
reimbursable costs (material cost plus tax) are $154,080, and reimbursements will be made when
the subject pipeline improvements have been fully constructed and accepted by the City; and
WHEREAS, vehicle access to the proposed shopping center is located on
Lower Sacramento Road, Kettleman Lane, and Westgate Drive south of Kettleman Lane.
Westgate Drive will dead-end at the southern boundary of the project, and will primarily serve the
local traffic accessing from Kettleman Lane to and from the new project; and
WHEREAS, for traffic safety and circulation, staff recommends establishing "No -Parking" and
"Restricted Truck Access" zones on Westgate Drive between Kettleman Lane and the southern
boundary of the project; and
WHEREAS, as part of the Westside Master Plan (2001), Westgate Drive was designed to
accommodate one travel lane and a bicycle lane in each direction, a raised landscaped median, and
left -turn lanes at Kettleman Lane and the shopping center's northern driveway, and requires the
no -parking zone to accommodate these lanes; and
WHEREAS, the project includes undergrounding existing overhead utilities and installing a
new traffic signal on Lower Sacramento Road at the project driveway on the west and the southern
driveway at Food 4 Less on the east. The existing signal at the Kettleman Lane/Westgate Drive
Intersection will be modified for the new Westgate Drive on the south and the new westbound
left -turn lane on Kettleman Lane; and
WHEREAS, landscape improvements are being installed in the parkway area between the
curb and sidewalk along Kettleman Lane, requiring a Caltrans encroachment permit and
maintenance agreement; and
WHEREAS, Caltrans will not issue encroachment permits or enter into agreements with
private parties for this type of work, and in order to obtain the encroachment permit, the City must
execute the Landscape and Improvements Maintenance Agreement Within State Highway Right of
Way on Route 12 Within the City of Lodi; and
WHEREAS, a separate maintenance agreement between the City and BDC will transfer all
Caltrans landscape maintenance requirements from the City to BDC.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby:
1) Approve the Final Map for 2600 Westgate. Drive, and authorize the City Manager to
execute the Improvement Agreement for the Public Improvements of Lodi Shopping Center; and
2) Authorize the City Manager to execute the Landscape and Improvements
Maintenance Agreement Within State Highway Right of Way on Route 12 Within the City of Lodi with
Caltrans; and a Maintenance Agreement transferring those responsibilities for landscape
improvements in the Kettleman Lane (State Route 12) right-of-way to BDC Lodi III, L.P.; and
3) Amend Traffic Resolution No. 97-148, Section 8(A) "Weight Limit/Commercial
Vehicle Restrictions" by approving the prohibition of commercial vehicles over two axles on
Westgate Drive from Kettleman Lane to the southern boundary of the project; and
4) Approve no -parking zones on Westgate Drive between Kettleman Lane and the
south boundary of the project.
Dated: June 3, 2015
I hereby certify that Resolution No. 2015-69 was passed and adopted by the City Council of
the City of Lodi in a regular meeting held June 3, 2015, by the following vote:
AYES: COUNCIL MEMBERS — Kuehne, Mounce, Nakanishi, and Mayor Johnson
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Chandler
ABSTAIN: COUNCIL MEMBERS — None
NNIFER . FERRAIOLO
City Clerk
2015-69