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HomeMy WebLinkAboutAgenda Report - January 17, 2018 C-09TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM cq AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Amendment to Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1), and Authorizing City Manager to Execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park, Tract No. 3919 (Unit No. 1) MEETING DATE: January 17, 2018 PREPARED BY: Public Works Director RECOMMENDED ACTION: Adopt resolution authorizing City Manager to execute Amendment to Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1), and authorizing City Manager to execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park, Tract No. 3919 (Unit No. 1). BACKGROUND INFORMATION: Villa Fiore Subdivision, Unit No. 1, is the first phase of the multi- phase residential development located west of Lower Sacramento Road, and south of the recently completed Lodi Shopping Center, as shown on Exhibit A. Unit No. 1 consists of 130 single-family, residential lots. The project includes the installation of all interior subdivision public improvements and full street improvements on Century Boulevard from Lower Sacramento Road to its westerly boundary, and Westgate Drive from Lodi Shopping Center to Century Boulevard. The developer, Elliot Homes, Inc. (Developer), is required to construct a neighborhood park on Lot C, inside the project boundary, also shown on Exhibit A. Due to time constraints in Developer's construction schedule, Developer has requested to execute a separate improvement agreement to construct the park in order to expedite construction of the other site improvements. City staff deemed this a reasonable request and included a condition requiring that the park improvements be completed prior to final acceptance of Unit No. 1 of the multi -phase development. The Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision Tract No. 3919 (Unit No. 1) was approved by Council on April 5, 2017. Developer now requests the completion of the park improvements to be independent of the subdivision improvement for Unit No. 1 and to defer completion of the Villa Fiore Neighborhood Park until September 1, 2019, when all homes in Unit No. 1 are anticipated to be complete. This approach is mutually beneficial since it will extend the developer -funded maintenance period and postpone the City's park maintenance costs beyond 2021 with the standard two-year maintenance period after project acceptance. The Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919, (Unit No. 1), Section 1. F., states that the park improvements shall be completed prior to APPROVED: e:'r Schwab- '-r, Ci y Manager K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Van Ruiten Ranch\Park\Improvemenl. • e :mentlC_lmprovementAgmt VillaFiorePark.doc 1/10/2018 Adopt Resolution Authorizing City Manager to Execute Amendment to Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1), and Authorizing City Manager to Execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park, Tract No. 3919 (Unit No. 1) January 17, 2018 Page 2 project acceptance. The proposed amendment accommodates Developers request, allowing park improvements to be completed on or before September 1, 2019. Staff recommends authorizing City Manager to execute Amendment to the Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision Tract No. 3919 (Unit No. 1). Staff also recommends authorizing City Manager to execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park Tract No. 3919 (Unit No. 1). Developer has furnished the City with the improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed park improvements. Once the City Manager executes the Improvement Agreement, the developer may commence work on the park improvements. FISCAL IMPACT: There will be an overall increase in long term maintenance costs for public infrastructure and City services such as police, fire, water, wastewater and parks, and open space maintenance associated with the new subdivision. By deferring completion of the park improvements until Unit No. 1 build -out, it is expected the cost for landscape maintenance in the public park will be entirely offset by proceeds from Community Facilities District No. 2007-1 (Public Services). FUNDING AVAILABLE: Not applicable. Charles E. Swimley, Jr. Public Works Director Prepared by Kimberly Sobin CES/KS/tdb Attachments cc: City Attorney City Engineer / Deputy Public Works Director Elliot Homes, Inc. Senior Civil Engineer Senior Engineering Technician, Wiman K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Van Ruiten Ranch\Park\Improvement Agreement\C_ImprovementAgmt VillaFiorePark.doc 1/10/2018 r Subdivision Boundary I__--_ L__ L� J , fC l ~—, r —tl 1 L---- i____ i IO I ` 1 p r - , CD i 1 I I 11 1 I4 , <0 y 1 I 1 1 I I I 1 -a, 1 - 1 1 1 = 1 1 - -- I I I ) G11 Kettleman Ln / Hwy 12 - 1 - I -1 I 1 1 I I I —----. r' 'I �D I- NIWIShLoopdping''.7 IQi1 F , Center ,� I L 1 1 1 1 LOT A Future Phase LOT B Future Phase 1-2 Basin LOT D er Sacramento Rd. 0 J Villa Fiore Neighborhood Park r r - I I 1 I ` -- Lr— I LI -I • • • r it I 7 I --I— I 1 I 1 I I 1 I -Century - DeBenedetti Park EXHIBIT A Villa Fiore Neighborhood Park s 1 inch = 500 feet Path: K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Van Ruiten Ranch\Park\Villa Fiore Park Map.mxd WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 AMENDMENT TO THE IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of VILLA FIORE (VAN RUITEN RANCH) SUBDIVISION TRACT NO. 3919 (UNIT NO. 1) THIS AMENDMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Elliott Homes, Inc., an Arizona Corporation, hereinafter referred to as "Developer." RECITALS: Developer and City has entered into an Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1), dated June 6, 2017, recorded with the San Joaquin County Recorder on June 16, 2017 as Document No. 2017-068831, to outline the responsibilities of City and Developer for the development of the Villa Fiore Subdivision (hereinafter "Improvement Agreement"); and Under the Improvement Agreement, Developer acknowledged that public park improvements are to be completed as part of the overall public improvements for the Villa Fiore Subdivision; and Developer desires project acceptance of the "Project" as defined in the Improvement Agreement minus the public park improvements and appurtenant landscaping, and to defer completion of the public park improvements until September 1, 2019. NOW THEREFORE, in addition to the terms and conditions set forth in the Improvement Agreement, the parties agree to revise Section 1. F., as follows: 1. 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, all of the work and improvements as shown on the approved improvement plans for the Project, Plan Set D176, which is on file in the Public Works Department. The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Van Ruiten Ranch\Improvement Agreement\Amend Imp Agree Villa Fiore 01171 B. doc 1 12/29/17 F. Public Park Improvements — The public park improvements and appurtenant landscaping will be covered by a separate improvement agreement to be executed by Developer and City. The park improvements and appurtenant landscaping shall be completed by Developer on or before September 1, 2019. 2. Execution In Witness Whereof, Developer and City have caused their names and corporate seals to be hereunto affixed. Elliott Homes, Inc. An Arizona Corporation Dated By: HARRY C. ELLIOTT III President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated: By: STEPHEN SCHWABAUER City Manager ATTEST JENNIFER M. FERRAIOLO City Clerk (CORPORATE SEAL) APPROVED AS TO FORM: JANICE D. MAGDICH City Attorney K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Van Ruiten Ranch\Improvement AgreementWmend Imp Agree Villa Fiore 011718.doc 2 12/29/17 WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of VILLA FIORE NEIGHBORHOOD PARK TRACT NO. 3919 (Unit No. 1) THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Elliott Homes, Inc. an Arizona corporation, hereinafter referred to as "Developer". RECITALS: Developer is the developer of that certain real property situated in the City of Lodi, County of San Joaquin, commonly known as parcel 3 in Tract A (APN: 058-030-32) and more particularly described in Exhibit A and depicted in Exhibit B. Developer has presented to City for approval the final subdivision map, hereinafter called "Map", entitled "Villa Fiore (Van Ruiten Ranch), Unit 1." 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; Developer has requested approval of the Maps prior to the construction and completion of certain public improvements, specifically all park facilities and landscaping which are a part of, or appurtenant to, the Villa Fiore Neighborhood Park, hereinafter called "Project", 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 Public Works Director or designee. The "Project" is part of the Villa Fiore Unit No. 1 (Subdivison) outlined in the "Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision Tact No. 3919 (Unit No.1)" (Subdivision Improvement Agreement), recorded in the office of the San Joaquin County Recorder on June 16, 2017, as Document No. 2017-068831. The Subdivision Improvement Agreement is conditioned on the completion of certain public improvements, including the Project, prior to the City's acceptance of the Subdivision public improvements. Developer requests completion of the "Project" to be independent of the remaining public improvements set forth in the Subdivision Improvement Agreement to allow for additional time to complete the Project without delaying the acceptance of the remaining Subdivision public improvements and approval of the Map. City Council will adopt a resolution to approve the Map and accept the dedications therein, with the exception of the Project, offered on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of said resolution; and 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 Municipal Code ("LMC"). 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: 1. 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 Impagmt Villa Fiore Park FINAL Doc 1 1/10/18 the direction and to the satisfaction of City's Public Works Director, all of the work and improvements as shown on the approved improvement plans for the Project, Plan Set 017D016, which is on file in the Public Works Department. Upon entering into this Agreement, the City will allow the completion of the "Project" as outlined in Paragraph 6 of this Agreement. City will allow the acceptance of the other public improvements of Villa Fiore subdivision as set forth in the Subdivision Improvement Agreement. 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 final maps by the City, it is agreed that the Developer shall deposit with the City the amount of money shown as the "Developer Cost" on the Billing Schedule, attached hereto as Exhibit C, 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, install or cause the installation of the following items: A. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering six months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fees must be paid prior to project acceptance; B. Model Water Efficient Landscape Ordinance (MWELO) Compliance Inspections. The fee shown on the Billing Schedule covers the plan review and inspection fees for compliance with MWELO throughout a one (1) year period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fees must be paid prior to project acceptance; C. Furnishing and installation of water meters for the public irrigation system Developer shall also pay all additional costs for work performed by City deemed by the Public Works Director 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 capacity, street improvements, storm drain, police, fire, parks and recreation, general City facilities, art in public places and south wastewater trunk line do not apply to this project. 5. Reimbursement from Others Developer may be eligible for reimbursement from others for the cost of certain off-site public improvements that benefit other properties. It is Developer's responsibility to request reimbursement and submit the appropriate information per LMC Section 17.62. 6. Work; Time for Commencement and Performance Developer shall complete the Project on or before September 1, 2019. 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. Impagmt Villa Fiore Park FINAL Doc 2 1(10/18 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 and executed 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 put in place, all survey monuments as shown on the Maps and 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 give personal superintendence to the work of said improvements, or 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. 12. Contract Security Concurrently with the execution of this Agreement, Developer shall furnish Improvement Security of at least 100 percent of the estimated cost of the public improvements required to be constructed, plus deferred fees and engineering costs of surveying, record drawings and certifications as security for the faithful performance of this Agreement; and an amount equal to at least 100 percent 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: Labor and Materials: $ 1,029,800.00 $ 1,029,800.00 13. Warranty Security Prior to acceptance of the Project improvements by City, Developer shall furnish warranty security of at least 10 percent of the total cost of the public 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 years following the date of acceptance of the improvements by City. If any portion of the Project receives partial acceptance during the course of construction, the warranty period for all required Project improvements shall commence upon the date of final acceptance for the entire Project. Impagmt Villa Fiore Park FINAL.Doc 3 1/10/18 14. Landscape Maintenance Developer shall execute a separate landscape maintenance agreement at time of Project acceptance to cover the maintenance of the constructed trail and park system. Developer shall agree to provide maintenance and upkeep of the landscape and hardscape elements including weekly trash removal from the trash cans in the park for a period of two (2) years following the date of acceptance of the improvements by the City. Developer shall furnish a Maintenance Security of at least 10% of the total cost of the public improvements inside the park as security for the maintenance cost. Should Developer or Developer's surety fail to act promptly or in accordance with this requirement, or should the exigencies of the case require maintenance to be performed before Developer can be notified, City may, at its option, perform the necessary maintenance work, and Developer shall pay to City the actual cost of such repairs plus 15 -percent for administration and overhead costs. 15. Hold -Harmless Aareement 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. 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. 16. Developer's Insurance Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this paragraph, nor shall Developer allow any contractor or subcontractor to commence work on Developer's contract or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained. 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. Worker's Compensation Insurance Developer shall maintain, during the life of this agreement, Worker'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 contractor or subcontractor similarly to provide Worker's Compensation Insurance for all contractors' or subcontractors' employees, unless such employees are covered by the protection afforded by Developer. In case any class of employees engaged in hazardous work under this Agreement at the site of the Project is not protected under the Worker's Compensation Statute, the Contractor shall provide and shall cause each Impagmt Villa Fiore Park FINAL Doc 4 1/10/18 subcontractor to provide insurance for the protection of said employees. A waiver of subrogation is required for workers compensation insurance. This policy may not be canceled nor the coverage reduced without 30 days prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine Street, Lodi, CA, 95240. Developer hereby indemnifies City for any damage resulting to it from failure of either Developer or any contractor or subcontractor to take out or maintain such Worker's Compensation insurance. B. Comprehensive General and Automobile Insurance Developer shall take out and maintain during the life of this Agreement such 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 Project 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: COMPREHENSIVE GENERAL LIABILITY $2,000,000 Each Occurrence $4,000,000 General Aggregate 2. COMPREHENSIVE AUTOMOBILE LIABILITY $1,000,000 Combined Single Limit Such insurance shall cover liability arising out of any vehicle (including, owned, hired and non -hired vehicles) operated in performing any and all services pursuant to this Agreement. Coverage shall be written on ISO form CA 00 01 12 90, or a later version, that provides liability coverage at least as broad as this form. Developer must have comprehensive automobile liability only if Developer's vehicles are used for the Project 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.). "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. All limits are to be designated strictly for the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers. All deductibles or self-insured retentions (SIR) must be disclosed to City's Risk Manager for approval and shall not reduce the limits of liability set forth hereinabove. Insurance policies containing any deductible or SIR provision shall provide, or be endorsed to provide, that the deductible or SIR may be satisfied by either the Named Insured(s) or the City of Lodi. It is required that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth above, shall be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall be (i) the minimum coverage and limits specified in these insurance requirements; or (ii) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the Developer; whichever is greater. Impagmt Villa Fiore Park FINAL.Doc 5 1/10/18 A copy of the certificate of insurance with the following endorsements shall be furnished to the City: A. Additional Named Insured Endorsement Pursuant to a separate endorsement (ISO form CG 2010 (11/85) or a later version, that provides liability coverage at least as broad as this form) 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. An additional named insured endorsement is also required for Auto Liability. B. Primary and Non -Contributory Insurance Endorsement Additional insurance coverage under the Developer's policy shall be "primary and non-contributory" and will not seek contribution from City's insurance or self- insurance and shall be at least as broad as ISO form CG 20 01 04 13. 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. D. Waiver of Subrogation Include a waiver of subrogation against the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers. A waiver is required for General Liability and Auto Liability. E. Limits of Coverage The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance of Developer shall contain, or be endorsed to contain, a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City's own insurance or self-insurance shall be called upon to protect the City as a named insured. F. Completed Operations Endorsement For three years after completion of project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04, will be provided to the City of Lodi. G. Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Developer shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Developer shall provide proof of continuing insurance on at least an annual basis during the Term. If Developer's insurance lapses or is discontinued for any reason, Developer shall immediately notify the City and immediately obtain replacement insurance. H Failure to Comply If Developer fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Developer shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Developer of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Developer shall pay such reimbursement and interest on the first (1St) Impagmt Villa Fiore Park FINAL.Doc 6 1/10/18 day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Developer fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Developer shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. Qualified Insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. J. Evidence of Insurance Developer shall furnish City, concurrently with the execution of this Agreement, with satisfactory evidence of the insurance required 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 street 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; and the insurance certificate must state, on its face or as an endorsement, a description of the project that it is insuring. NOTE: The City reserves the right to obtain a full certified copy of any insurance policy or endorsements required. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. 17. Title to Improvements Title to, and ownership of, all public 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 plans and specifications referred to herein, Developer and Developer's surety shall, without delay and without cost to City, repair, 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 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 -percent for administration and overhead costs. 19. Mud, Debris, Dust and Erosion Developer agrees and covenants not to permit mud or other debris to be tracked from the Project site or elsewhere onto City or County streets 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 County streets or any damage is caused to City or County streets, 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 Impagmt Villa Fiore Park FINAL Doc 7 1/10/18 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 for dust and erosion problems created during construction, including installation of telephone, electrical, cable television and gas facilities. Developer's responsibility for dust and erosion control shall extend to include a period of two years from the date of final acceptance by City of the work performed under this Agreement. If a dust or erosion problem arises during development or within a period of two (2) years from the date of final acceptance by City of the work performed under this Agreement, including but not limited to installation of electrical facilities, and has not, after notice, been abated by Developer within a specified period of time, City shall cause the same to be controlled, and Developer shall be charged with the cost of said control. 20. 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. 21. Protection of Existing Improvements Damage to any existing improvements, private or public utility lines installed or undergoing installation in 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. 22. 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. 23. 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 and Developer's surety of breach of this Agreement, or any portion thereof, and the default of Developer. 24. Breach of Agreement; Performance by Surety or City In the event of any such notice, 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 five (5) 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 five (5) 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 Impagmt Villa Fiore Park FINAL.Doc 8 1/10/18 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. 25. This Agreement shall run with the land and be binding on the Owner, its heirs, successors and assigns. 26. Notices. All notices herein required shall be in writing, signed by the authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties. Notices required to be given to City shall be addressed as follows: Charles E. Swimley, Jr. Public Works Director City of Lodi 221 West Pine Street P. O. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows: Price Walker Vice President, Project Development Elliott Homes, Inc. 340 Palladio Parkway, Suite 521 Folsom, CA 95630-8775 Notices required to be given to Surety shall be addressed as follows: 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. 27. Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Impagmt Villa Fiore Park FINAL.Doc 9 1/10/18 28. Execution In Witness Whereof, Developer and City have caused their names and corporate seals to be hereunto affixed. ATTEST: JENNIFER M. FERRAIOLO City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH City Attorney Impagmt Villa Fiore Park FINAL Doc Elliott Homes, Inc., an Arizona corporation Dated: By: Harry C. Elliott III President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated By: STEPHEN SCHWABAUER City Manager 10 (CORPORATE SEAL) 1/10/18 BILLING SCHEDULE Development: Villa Fiore Neighborhood Park Developer: Elliot Homes Engineer: HLA Group Landscape Architects & Planners, Inc. Date: 12/19/17 Gross Acreage: No. of Units: Construction cost (Bid Price) EXHIBIT C 4.56 1 $1,029,800.00 DEVELOPER COST CREDITS ENGINEERING Engineering Fee (5% of $100,000) ENGFEE $5,000.00 (3.5% of $200,000) ENGFEE $7,000.00 (2.5% of $729,800) ENGFEE $18,245.00 Inspection Fee (4% of $250,000) ENGINS $10,000.00 (3.5% of $750,000) ENGINS $26,250.00 (3% of $29,800) ENGINS $894.00 Engineering Fee Paid ENGFEE $ 29,906.84 Improvement Agreement Fee ENGFEE $2,143.00 ENGINEERING SUBTOTAL $69,532.00 $ 29,906.84 STREET SYSTEM Fees: Storm Water Inspection Fees PW03 1 LS @ $ 1,986.00 $1,986.00 (Charge for 1 year inspection) STREET SYSTEM SUBTOTAL $1,986.00 $0.00 WATER SYSTEM Charges for Work by City Forces: 1" Domestic Water Meter 3" Meter for Park Irrigation WATER SYSTEM SUBTOTAL ELECTRICAL SYSTEM To be billed separately by Electric Utility Department TOTAL AMOUNT OF BILLING SCHEDULE PW02 1 EA @ $ 350.00 $300.00 PW02 1 EA @ $ 1,980.00 $1,980.00 $2,280.00 $0.00 $73,798.00 $29,906.84 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $43,891.16 RESOLUTION NO. 2018-05 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT TO THE IMPROVEMENT AGREEMENT FOR THE PUBLIC IMPROVEMENTS OF VILLA FIORE (VAN RUITEN RANCH) SUBDIVISION, TRACT NO. 3919 (UNIT NO. 1); AND AUTHORIZING THE CITY MANAGER TO EXECUTE IMPROVEMENT AGREEMENT FOR THE PUBLIC IMPROVEMENTS OF VILLA FIORE NEIGHBORHOOD PARK, TRACT NO. 3919 (UNIT NO. 1) WHEREAS, Villa Fiore Subdivision, Tract No. 3919 (Unit No. 1), is the first phase of the multi -phase residential development located west of Lower Sacramento Road, and south of the recently -completed Lodi Shopping Center, consisting of 130 single-family, residential lots; and WHEREAS, the project includes the installation of all interior subdivision public improvements and full street improvements on Century Boulevard from Lower Sacramento Road to its westerly boundary, and Westgate Drive from Lodi Shopping Center to Century Boulevard; and WHEREAS, the developer, Elliot Homes, Inc. (Developer), is required to construct a neighborhood park on Lot C, inside the project boundary; and WHEREAS, Developer now requests the completion of the park improvements to be independent of the subdivision improvement for Unit No. 1 and to defer completion of the Villa Fiore Neighborhood Park until on or before September 1, 2019, when all homes in Unit No. 1 are anticipated to be complete; and WHEREAS, the Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1), Section 1. F., states that the park improvements shall be completed prior to project acceptance. The proposed amendment accommodates Developer's request, allowing park improvements to be completed on or before September 1, 2019; and WHEREAS, staff recommends authorizing the City Manager to execute Amendment to the Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1); and WHEREAS, staff also recommends authorizing the City Manager to execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park, Tract No. 3919 (Unit No. 1). NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute Amendment to the Improvement Agreement for the Public Improvements of Villa Fiore (Van Ruiten Ranch) Subdivision, Tract No. 3919 (Unit No. 1); and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute Improvement Agreement for the Public Improvements of Villa Fiore Neighborhood Park, Tract No. 3919 (Unit No. 1). Dated: January 17, 2018 I hereby certify that Resolution No. 2018-05 was passed and adopted by the City Council of the City of Lodi in a regular meeting held January 17, 2018 by the following vote: AYES: COUNCIL MEMBERS — Chandler, Johnson, Kuehne, and Mounce NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Mayor Nakanishi ABSTAIN: COUNCIL MEMBERS — None 2 /L ,, NIFE . FERRAIOLO ity Clerk 2018-05