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HomeMy WebLinkAboutAgenda Report - April 17, 2019 H-01CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM H-( TM AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 MEETING DATE: April 17, 2019 PREPARED BY: Public Works Director RECOMMENDED ACTION: BACKGROUND INFORMATION: Adopt resolution authorizing City Manager to execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940. Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center, as shown on Exhibit A. Unit No. 1 consists of 98 single-family, residential lots. The developer, Blossom Land Company (Developer), will be presenting the final map for approval at a later date. This project is inside the Area of Benefit of Reimbursement Agreement RA18-01 (Lodi Shopping Center) which is currently in the approval process. Developer will be responsible for the reimbursement payment in accordance with Lodi Municipal Code §17.62.060. The project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet). Developer has requested to execute a separate improvement agreement to design and construct the Lower Sacramento Road public improvements in order to expedite construction of the other site improvements. City staff has deemed this a reasonable request and included a condition requiring that the Lower Sacramento Road public improvements be completed prior to final acceptance of the Gateway North, Unit No. 1, project. Developer has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision (except for the required payment for vacating the existing real property and easement where the domestic and industrial waste outfall lines were previously located). Development Impact Fees will be collected as part of the building permit process, prior to issuing a certificate of occupancy, for each single-family residence, in accordance with Lodi Municipal Code §15.64.040. This project is part of the Community Facilities District No. 2007-1 (Public Services) (CFD). Portions of the cost to install certain offsite public improvements that benefit other properties may be eligible for reimbursement from others. It is Developer's responsibility to request reimbursement and submit the appropriate information per Lodi Municipal Code Chapter §17.62. This item was rescheduled for consideration at the February 6, 2019 Council meeting to March 12, 2019, concurrent with the continued public hearing to consider adopting a resolution to authorize the City APPROVED: Stephe chwabauer, anager K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement1C_ImpAgmt_Unit 1 041719.doc 3/29/2019 Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract No. 3940 April 17, 2019 Page 2 Manager to execute Reimbursement Agreement RA -18-01, for public improvements constructed with the Lodi Shopping Center. Since the public hearing to consider Reimbursement Agreement RA -18-01 was again continued to April 17, 2019, staff also rescheduled this item to April 17, 2019. Additional conditions have been added to the Improvement Agreement that was last considered by Council at the February 6, 2019 meeting. FISCAL IMPACT' There will be an increase in long-term maintenance costs for public infrastructure and City services such as police, fire, and parks, and open space maintenance. This cost will be partially offset by proceeds from the CFD. FUNDING AVAILABLE: Not applicable. Charles E. Swimley, Jr. Public Works Director Prepared by Lyman Chang, City Engineer/Deputy Public Works Director CES/LC/tdb Attachments cc: City Attorney Magdich City Engineer / Deputy Public Works Director Chang Senior Civil Engineer Nathan Assistant Civil Engineer Kiriu Senior Engineering Technician Wiman Blossom Land Company MCR Engineering Browman Development Company K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ImpAgmt_Unit 1 041719.doc 3/29/2019 Primrose Dr. V) 0 ca 0 Tulip Wy. + 7 1 Lower Sacramento Rd Gateway North Subdivision Unit 1 Boundary 1 Century Blvd. EXHIBIT A GATEWAY NORTH SUBDIVISION UNIT 1 VICINITY MAP s 1 inch = 300 feet Path: K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\C_ExhibitA.mxd WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of GATEWAY NORTH, UNIT NO.1 TRACT NO. 3940 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Blossom Land Company, a California 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 Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more particularly described in Exhibit A, attached hereto and incorporated herein. Developer will present to City for approval the final subdivision maps based on the Tentative Map approved by the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission Resolution No. 17-20, entitled "Gateway North". Subsequent to the issuance of the subdivision map in favor of FCB Homes, title to the property was transferred to Blossom Land Company, a California corporation. Developer will present a final subdivision map titled "Gateway North, Unit No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map will be filed with the Public Works Director for presentation to the City Council for approval at a later date and is therefore not attached; Developer has requested approval of the improvement plans (Plan Set D181) prior to the final approval of the Map. The public improvement plans include all streets, highways or public ways, and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No. 1 Subdivision, 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 his designee; Developer acknowledges that a subsequent improvement agreement will be required for the Lower Sacramento Road improvements prior to final approval of the Map; City Council will adopt a resolution to approve the Map and accept the dedications therein offered at a later date on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of the 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: 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 D181, which is on file in the Public Works Department. K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 1 4/10/2019 The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: A. Street light installation and connection to City system; B. Street frontage improvements on Lower Sacramento Road (by separate agreement); C. Natural gas line installation; D. Telephone line installation; E. Electrical system; and F. Cable television system. 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 map 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 B, attached hereto and incorporated herein. 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. Street seal coat; 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; and C. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering twelve months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fee must be paid prior to Project acceptance. 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. Developer shall be responsible for purchasing the real property and easement underlying the City's pipeline easement through a portion of the property, as shown on Exhibit A, upon final map approval from the City of Lodi at a price set by a mutually agreed appraiser. The vacation of this property shall be in accordance with the appropriate provisions of the Streets and Highways Code of the State of California. 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, and art in public places are required for this Project. Payment of the Development Impact Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for each dwelling. The amounts shown in this Agreement for the Development Impact Mitigation Fees are those in effect at the time of execution of this Agreement. In conformance with LMC Section 15.64.050, the fees are automatically adjusted on January K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca pwdoc 2 4/10/2019 1st of each year. Fees may also be adjusted at other times by separate City Council action. The actual fees to be paid will be those in effect at the time of payment. This Agreement shall in no way limit City's ability to charge Developer the fees in effect at the time Developer pays the fees. The Gateway North Unit No. 1 Subdivision (Tract No. 3940) is located in Zone 2 of the City's Storm Drain Impact Fee Program. In accordance with Resolution 2013-184, the appropriate storm drain impact fee shall be collected for each development in Zone 2 that does not construct its fair share of permanent storm drain improvements. This development has not constructed its fair share of storm drain improvements and is subject to the actual storm drain fee in effect at the time of payment unless developer pays all costs allocated to Developer in RA -18-01 in accordance with LMC Section 17.62.060. 5. Reimbursement to Others Developer acknowledges that the City Council will adopt RA 18-01 at a public hearing currently scheduled for April 17, 2019 (Resolution No. 2019-_). Developer agrees to pay all costs allocated to Developer in RA 18-01 in accordance with LMC §17.62.060. 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, within 365 calendar days from the date of this Agreement, perform or cause to be performed, all work and/or improvements described in this Agreement. 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 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 make the sole and final determination 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 Map 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 Project, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the Project 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 K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca.pw doc 3 4/10/2019 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, or have already been 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: $ 3,546,167.45 $ 2,728,100.00 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 17 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. 14. Indemnity and Hold -Harmless Agreement Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Developer hereby assumes liability for and agrees to defend (at Indemnitees' option), indemnify, protect and hold harmless City and its elected and appointed boards, commissions, officers, agents, volunteers, and employees ("Indemnitees") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including attorney fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement of the performance of the Project including, but not limited to, death of or bodily or personal injury to persons or damage to property, including owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Developer, its officers, agents, employees, contractors or subcontractors including, but not limited to, liability arising from: A. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Project site by Developer, its officers, agents, employees, contractors or subcontractors; B. Any operation conducted upon or any use or occupation of the premises by Developer, its officers, agents, employees, contractors or subcontractors under or pursuant to the provisions of this Agreement or otherwise; C. Any act, omission, or negligence of Developer, its officers, agents, employees, contractors or subcontractors. K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca pw.doc 4 4/10/2019 D. Any failure of Developer, its officers, agents or employees to comply with any of the terms or conditions of this Agreement or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and E. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), and (4) of this paragraph, existing or conducted upon or arising from the use or occupation by Developer on any other premises in the care, custody and control of City. F. Any and all costs incurred by or imposed upon the City of Lodi associated with the construction of any and all public infrastructure (including but not limited to industrial and domestic wastewater mains, and storm drain) not otherwise covered by the Storm Impact Fee Program, and Street Improvements, that benefit or serve the Gateway North Unit No. 1 Subdivision (Tract 3940). In the event Developer does not reimburse City for the above improvements, Developer shall have no right to hook into the public infrastructure and will be required to submit a revised Tentative Map showing an alternative design to provide for public infrastructure necessary to serve the Project. The Developer also agrees to indemnify City and pay for all damage or loss suffered by City including but not limited to damage to or loss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections (1), (2), (3), (4), and (5) of this paragraph. Developer's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Developer shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of City. Developer agrees to obtain executed indemnity agreements with provisions identical to those set forth in this paragraph from each and every contractor or subcontractor or any other person or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully responsible according to the terms of this paragraph. Failure of City to monitor compliance with these requirements of this paragraph imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this paragraph. This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retrain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees' K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca pw doc 5 4/10/2019 interests. City shall, in its sole discretion, determine whether such assurances are reasonable. 15. 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 behalf or request until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved by the City's Risk Manager. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Insurance requirements are set forth in Exhibit C, attached hereto and incorporated herein. 16. 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. 17. 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. 18. Landscape Maintenance Developer shall perform regular maintenance on landscape elements, including plants and irrigation systems installed with the Project for a period of two (2) years after the final acceptance by City. 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. 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 reeeipt of -e deposit -it he--arrte tnt of W263 for-eaeII--assembly reftuired--The-purpese-ef 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 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. K:\WP\DEV SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca. pw doc 6 4/10/2019 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 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 Project construction 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 telephone, electrical, cable television, and/or gas 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. 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 Project construction. The above may be modified when alternate methods of protection approved by the Fire Chief are provided. 22. 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. 23. Dwelling Occupancy City will not allow occupancy of any building or structure within the area of the Map until all deferred fees have been paid, public improvements have been approved and accepted by the Public Works Department per established City policy and other requirements of City codes have been met. If building is started prior to acceptance of the improvements, it is Developer's responsibility to inform all prospective purchasers that occupancy will not be permitted until said deferred fees are paid and public improvements are so accepted by City. 24. Developer Not Agent of City Neither-Developer--nor-alyr-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. 25. 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 K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 7 4/10/2019 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. 26. Breach of Agreement; Performance by Surety or City In the event of any breach of this Agreement, Developer's surety shall have the duty to take over and complete the work and the improvements as 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 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. 27. This Agreement shall run with the land and be binding on the Developer, its heirs, successors and assigns. 28. No Vesting. Nothing is this Agreement will vest Developer against conditions or requirements being added to the Map at the time of its approval. 29. 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. 0. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows: Thomas P. Doucette President Blossom Land Company 10100 Trinity Parkway, Suite 420 Stockton, CA 95219 K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN Finalca. pw doc 8 4/10/2019 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. 30. Authority The undersigned hereby represent and warrant that they are authorized by the party they purport to represent to execute this Agreement. [The balance of this page is intentionally left blank.] K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw doc 9 4/10/2019 31. 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 BLOSSOM LAND COMPANY, a California corporation Dated: By: THOMAS P. DOUCETTE President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated By: STEPHEN SCHWABAUER City Manager (CORPORATE SEAL) K:\WP\DEV_SERV\Developments\Lodi Southwest Gateway\Gateway North\Improvement Agreement\ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca pw doc 10 4/10/2019 EXHIBIT A Order Number: 0192-5663216 Page Number: 9 LEGAL DESCRIPTION Real property In the City of Lodi , County of San Joaquin, State of California, described as follows: PARCEL 1: THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN. EXCEPT THEREFROM: (1) THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS. (2) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH LINE, 735.50 FEET; THENCE NORTHERLY, PARALLEL TO THE EAST UNE OF SAID NORTHWEST QUARTER, 1271 FEET, MORE OR LESS, TO THE SOUTH LINE OF HIGHWAY 12, AS DESCRIBED IN DEED RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS; THENCE EASTERLY ALONG THE SOUTH UNE OF SAID HIGHWAY 12, 735.50 FEET TO THE WEST LINE OF LOWER SACRAMENTO ROAD; THENCE SOUTHERLY ALONG SAID WEST LINE, 1271 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. (3) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00° 03' EAST, PARALLEL WITH THE EAST LINE OF SAID NORTHWEST QUARTER SECTION, 1246.35 FEET TO THE SOUTH UNE OF KETTLEMAN LANE (100 FEET WIDE); THENCE ALONG SAID SOUTH LINE, NORTH 89° 09' 30" WEST, 546.33 FEET TO THE SOUTHERLY PROJECTION OF THE WEST LINE OF LOT 10 OF THE TAYLOR TRACT AS FILED IN VOL. 3 OF MAPS AND PLATS, PAGE 47, SAN ]OAQUIN COUNTY RECORDS; THENCE RUNNING PARALLEL WITH SAID EAST UNE OF THE NORTHWEST QUARTER SECTION, SOUTH 0° 03' WEST, 1246.31 FEET TO SAID SOUTH UNE OF THE NORTH HALF OF THE NORTH HALF OF SECTION 15; THENCE ALONG SAID SOUTH LINE, SOUTH 89° 09' 15" EAST, 546.33 TO THE TRUE POINT OF BEGINNING. (4) THAT PORTION CONVEYED TO THE CITY OF LODI BY DEED RECORDED AUGUST 12, 2003 AS INSTRUMENT NO -2003-181033, SAN JOAQUIN COUNTY -RECORDS. PARCEL 2: A PORTION OF PARCEL NINE, PARCEL TEN, PARCEL ELEVEN, PARCEL THIRTEEN AND ALL OF PARCEL TWELVE, AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: FirstAmerlcan Tide Page 9of21 Order Number: 0192-5663216 Page Number: 10 COMMENCING AT A BOLT MARKING THE CENTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, ALSO BEING POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD; THENCE SOUTH 00° 00' 33" EAST, 26.00 FEET ALONG THE NORTH -SOUTH QUARTER (N -S 1/4) SECTION LINE OF SAID SECTION 15; THENCE THE FOLLOWING FIFTEEN (150 COURSES: 1) SOUTH 89° 57' 53" WEST, 439.30 FEET; 2) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 51' 28" AND AN ARC LENGTH OF 463.04 FEET; 3) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 25° 49' 21" WEST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 00° 35' 14" AND AN ARC LENGTH OF 9.98 FEET; 4) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 25° 14' 07 WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 95° 26' 10" AND AN ARC LENGTH OF 39.98 FEET 5) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 70° 12' 03" EAST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 12' 20" AND AN ARC LENGTH OF 3.50 FEET; 6) NORTH 70° 24' 23" WEST, 50 FEET; 7) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING NORTH 70° 24' 23" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 90° 16' 50" AND AN ARC LENGTH OF 37.82 FEET; 8) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTH FROM A RADIAL LINE BEARING SOUTH 19° 18' 47" WEST, HAVING A RADIUS OF 966.00 FEET, A CENTRAL ANGLE OF 36° 47' 59" AND AN ARC LENGTH OF 620.44 FEET; 9) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 17° 29' 12" EAST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 45' 34" AND AN ARC LENGTH OF 38.86 FEET; 10) SOUTH 69° 45' 14" WEST, 50.00 FEET; 11) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 69° 45' 14" WEST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 27' 35" AND AN ARC LENGTH OF 7.82 FEET; 12) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 69° 17' 39" WEST, HAVING A RADIUS OF 24,00 FEET, A CENTRAL ANGLE OF 92° 43' 09" AND AN ARC LENGTH OF 38.84 FEET; 13) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 23° 25' 30" EAST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 02° 30' 06" AND AN ARC LENGTH OF 42.53 FEET; 14) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE NORTHWEST FROM A RADIAL LINE BEARING NORTH 25° 55' 36" WEST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 53' 29" AND AN ARC LENGTH OF 463.64 FEET; AND F/rstAmer'can Title Page 10 of 21 Order Number: 0192-5663216 Page Number: 11 15) SOUTH 89° 57' 53" WEST, 456.76 FEET TO 7HE WEST LINE OF SAID PARCEL NINE, ALSO BEING THE WEST LINE OF SAID SECTION 15; THENCE ALONG SAID WEST UNE, NORTH 00° 02' 07" WEST, 513.00 FEET; THENCE LEAVING LAST SAID UNE, NORTH 89° 57' 53" EAST, 333.88 FEET; THENCE ALONG THE FOLLOWING THIRTEEN (13) COURSES: 1) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 90.30 FEET; 2) ALONG AN ARC OF CURVE CONCAVE TO THE NORTH FROM A RADIAL LINE BEARING NORTH 02° 35' 18" WEST, HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 02° 33' 11" AND AN ARC LENGTH OF 13.37 FEET; 3) SOUTH 89° 57' 53" WEST, 8.52 FEET; 4) PARALLEL WITH THE WEST UNE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 142.00 FEET; 5) NORTH 89° 57' 53" EAST, 39.61 FEET; 6) NORTH 67° 41' 55" EAST, 77.99 FEET; 7) NORTH 22° 18' 05" WEST, 19.47 FEET; 8) NORTH 67° 41' 55" EAST, 142.00 FEET; 9) SOUTH 22° 18' 05" EAST, 137.98 FEET; 10) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 16° 33' 44" EAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 21° 31' 13" AND AN ARC LENGTH OF 187.50; 11) SOUTH 85° 02' 31" EAST, 183.56 FEET; 12) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 04° 59' 36" AND AN ARC LENGTH OF 69.72 FEET; AND 13) NORTH 89° 57' 53" EAST, 291.25 FEET TO THE POINT OF BEGINNING; THENCE FROM SAID POINT OF BEGINNING THE FOLLOWING TWENTY-FIVE (25) COURSES: 1) SOUTH 00° 00' 18" WEST, 37.97 FEET; 2) SOUTH 89° 59' 42" EAST, 37.00 FEET; 3) NORTH 44° 59' 05" EAST, 14.14 FEET; 4) NORTH 89° 59' 53" EAST, 80.00 FEET; 5) SOUTH 45° 00' 55" EAST, 14.15 FEET; 6) NORTH 89° 56' 58" EAST, 52.00 FEET; 7) NORTH 44° 59' 05" EAST, 14.14 FEET; 8) NORTH 89° 57' 53" EAST, 70.01 FEET; 9) SOUTH 00° 00' 18" WEST, 217.23 FEET; 10) SOUTH 76° 57' 09" EAST, 41.55 FEET; 11) SOUTH 74° 52' 04" EAST, 51.22 FEET; 12) SOUTH 72° 33' 57" EAST, 51.22 FEET; First American Tide Page 11 of 21 Order Number: 0192-5663216 Page Number: 12 13) SOUTH 70° 10' 31" EAST, 55.17 FEET; 14) SOUTH 67° 44' 49" EAST, 52.00 FEET; 15) NORTH 22° 15' 11" EAST, 20.02 FEET; 16) SOUTH 65° 16' 22" EAST, 64.97 FEET; 17) SOUTH 67° 13' 39" EAST, 55.34 FEET; 18) SOUTH 69° 46' 20" EAST, 7.27 FEET; 19) NORTH 18° 27' 11" EAST, 100.26 FEET; 20) ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHEAST FROM A RADIAL UNE BEARING NORTH 18° 27' 11" EAST, HAVING A RADIUS OF 726.00 FEET, A CENTRAL ANGLE OF 00° 39' 16" AND ARC LENGTH OF 8.29 FEET; 21) NORTH 17° 47' 55" EAST, 52.00 FEET; 22) NORTH 28° 49' 47" WEST, 13.73 FEET; 23) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST FROM A RADIAL UNE BEARING NORTH 75° 27' 29" WEST, HAVING A RADIUS OF 246.00 FEET, A CENTRAL ANGLE OF 14° 32' 13" AND AN ARC LENGTH OF 62.41 FEET; 24) NORTH 00° 00' 18" EAST, 21.15 FEET; AND 25) SOUTH 89° 12' 24 " EAST, 623.56 FEET TO THE EAST LINE OF SAID PARCEL THIRTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT ON THE EAST UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, NORTH, 218.70 FEET TO THE SOUTHEAST (SE) CORNER OF PARCEL EIGHTEEN AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS; THENCE ALONG THE SOUTH UNE OF SAID PARCEL EIGHTEEN, WEST 310.00 FEET TO THE SOUTHWEST (SW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE WEST LINE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15, NORTH, 180.00 FEET TO THE NORTHWEST (NW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE NORTH UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE SOUTH LINE OF SAID PARCEL EIGHTEEN, EAST, 310.00 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL EIGHTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT OF THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, NORTH, 357.38 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL TEN, ALSO BEING A POINT ON THE EAST -WEST QUARTER -QUARTER (E- W 1/4 1/4) SECTION UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST -WEST QUARTER -QUARTER (E -W 1/4 1/4) SECTION LINE, NORTH 89° 12' 24" WEST, 1312:58 FEET, MORE OR LESS, -TO -A POINT, SOUTH 89° 12' 24" EAST,--133049-FEET FROM THE NORTHWEST (NW) CORNER OF SAID PARCEL TEN; THENCE LEAVING SAID UNE, SOUTH 00° 00' 18" WEST, 648.43 FEET TO THE POINT OF BEGINNING, BEING PARCEL 5 OF LOT UNE ADJUSTMENT 09-R- 03, RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002139, SAN JOAQUIN COUNTY RECORDS. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. First American 77Ue Page 12 of 21 Order Number: 0192-5667216 Pape Number: 13 PARCEL 3: A PORTION OF THE SOUTHERLY ONE-HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING ATTHE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; THENCE NORTH, ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 784 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LAND; THENCE NORTH ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 180 FEET; THENCE DUE WESTA DISTANCE OF 310 FEET; THENCE DUE SOUTH A DISTANCE OF 180 FEET; THENCE EAST, 310 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. APN: 058-030-090-000 (Affects Parcel 1), 058-030-160-000 (Affects Parcel 2) and 058-030-040-000 (Parcel 3) First American 77tte Page 13 or 21 fI:Moil° mita,� aevu 1 n r.oromovs ?Irl;FA QUJyr 1 • Y —77 Order Number: 0191-3663111 Pape Nurnber: 14 a ;®9 111114p 111 M a A7110 S3Sarni Tat .LN31VSS3SSV &Oat SIdVI SNILL frstAmerl'can 77t!e Pepe 14 of 21 BILLING SCHEDULE EXHIBIT B Development: Gateway North, Unit No, 1 Gross Acreage: 19.29 Developer: FCB Homes No. of Units: 98 Engineer: MCR Engineering Date: 9/25/18 Construction cost $2,728,100.00 DEVELOPER COST CREDITS ENGINEERING Engineering Fee Inspection Fee Engineering Fee Paid Improvement Agreement Fee (5% of $100,000) ENGFEE $5,000.00 (3.5% of $200,000) ENGFEE $7,000.00 (2-5% of $2,428,100) ENGFEE $60,702.50 (4% of $250,000) ENGINS $10,000.00 (3.5% of $750,000) ENGINS $26,250.00 (3% of $1,728,100) ENGINS $51,843.00 ENGFEE ENGFEE $2,211.00 $ 119,548.00 ENGINEERING SUBTOTAL $163,006.50 $ 119,548.00 .STREET SYSTEM Fees: Storm Water Inspection Fees PW03 1 LS @ $ 2,047,00 $2,047,00 (Charge for 1 year inspection) Charges for work by City Forces: Seal Coat STREET SYSTEM SUBTOTAL WKOTPW 140,313 SF @ $ 0.08 $11,225.04 $13,272.04 $0.00 SEWER SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe Installation PW03 3,785 LF @ $ 1.50 $5,677.50 TV Inspection for Project Acceptance PW03 3,785 LF @ $ 1.50 $5,677.50 SEWER SYSTEM SUBTOTAL $11,355.00 .STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe installation TV Inspection for Project Acceptance STORM DRAIN SYSTEM SUBTOTAL (1701.6525) 2,490 LF @ $ (1701.6525) 2,490 LF @ $ 1.50 $3,735.00 1.50 $3,735.00 $7,470.00 $0.00 ELECTRICAL SYSTEM To be billed separately by Electric Utility Department TOTAL AMOUNT OF BILLING SCHEDULE $195,103 54 $119,548.00 Reimbursamant-Agre rnent 2007.52 058-030-16 (old APN 058-030-03) 18.15 Acres @ $5,735 99/Acre $104,108 22 058-030-16 (old APN 058-030-05) 3.90 Acres © $4,832 08/Acre $18,845 11 058-030-04 $14,684 54 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $213,193.41 Pending Reimbursement RA 1801 in accordance with LMC Section 17.62.060 $818,067.45 Total Fee $1,031,260.86 City of Lodi Publics Works Department COST ESTIMATE FOR IMPROVEMENT SECURITY Development: Gateway North, Unit No. 1 Developer: FCB Homes Engineer: MCR Engineering TOTAL COST OF PROJECT IMPROVEMENTS A DEVELOPEJRCOST Item Q•tstrgray Unit Price Total Quantify atal 0 3 4 Street Improvements 1 Aggregate Base 4" Class II 2 Asphalt Concrete 2.5" 3 Survey Monuments 4 Vertical Curb, Gutter, 8 Sidewalk 5 Roll Type Curb, Gutter, & Sidewalk 6 Sidewalk 7 Curb Return Incl. Ramp 6 Curb Return w/o Ramp 9 In -Line Ramp 10 Concrete Driveway Apron 11 Street Lights S2 8' Masonry Wall 8 Pilaster 15 Signage & Striping 14 Erosion 8 Sediment Control Site Preparation & Grading Site Preparation, Clearing and Grubbing 19 AC $1,381.00 026,239,00 19 526,239.00 Earthwork 6,000 CY 93.00 918,000,00 6,000 918,000.00 Lot Grading 98 EA $2,071.00 5202,958.00 88 5202,958,00 Basin Excavation 1 LS 9150,000.00 5150,000.00 1 $150,000-00 140,313 SF 90.80 $112,250.40 140,313 0112,250-40 140,313 SF $2 00 0280,62690 140,313 3280,626-00 17 EA 8828.00 014,076.00 17 814,076.00 785 LF 935.00 527,475,00 785 $27,475.00 6,524 LF 530.00 5195,720,00 6,524 $195,720.00 37,821 SF $8.00 3302,568.00 37,821 9302,566,00 14 EA 03,451.00 $48,314 00 14 $48,314,00 3 EA 51,500.00 04,500.00 3 $4,500.00 6 EA $2,761.00 916966,00 6 $16,566,00 3 EA $2,071.00 16,213,00 3 86,213-00 39 EA $4,142.00 1161,538-00 39 0161,538.00 1,260 LF 0173.00 9217,960 00 1,260 8217,980 00 1 LS 015,000.00 $15,000.00 1 915,000-00 98 EA $200.00 019,600.00 98 $19,600,00 Subtotal $1,819,623.40 Subtotal $1,819,623.40 Storm Drain System 1 12" Storm Drain Pipe 519 LF $48.00 024,912.00 519 $24,912.00 2, 15" Storm Drain Pipe 1.002 LF $62.00 $62,124-00 1.002 $62,124,00 3. 18" Storm Drain Pipe 133 LF $76.00 010,108.00 133 010,108.00 4 24" Storm Drain Pipe 725 LF $90,00 $65,250.00 725 565,250,00 5' 30" Storm Drain Pipe 111 LF $97,00 510,767.00 111 $10,767.00 6' Side Inlet Catch Basin 14 EA 02,76190 $38,654-00 14 538,654.00 7 46" Storm Drain Manhole 9 EA 54,142,00 537,270 00 9 937,278.00 6 Connect to Existing Storm Drain 2 EA $6,903.00 $13,806.00 2 013,806,00 9' Stub 8 Plug 1 EA 51,000,00 51,000-00 1 51,000,00 Subtotal 5263,899.00 SAWN 5263,899.00 Sanitary Sewer System 1 6" Sanitary Sewer Pipe 1.624 LF 517.00 $27,608-00 1,624 527,608,00 ;• 8" Sanitary Sewer Pipe 2,161 LF 930.00 $64,830.00 2,161 $64,830.00 9 Sanitary Sewer Manhole (48") 12 EA 53,451.00 541.412,00 12 $41,412.00 4 Sanitary Service with Cleanout 98 EA 5621.00 06465400 98 $60,85890 6 Connect to Existing Sanitary Sewer 2 EA 06,903.00 013,606-00 2 $13,806.00 6 Stub & Plug 1 EA $1,000,00 51,000.00 1 $1,000 00 Subtotal $209,514.00 Subtotal 5209,514.00 Water System 4 6" Water Pipe 210 LF $41.00 58,610 00 210 $8,610,00 2 8" Water Pipe 3,995 LF 955-00 0219,725-00 3,995 5219,725.00 3 8" Gale Valve 20 EA 51,657 00 $33,140.00 20 $33,140.00 4 Fire Hydrant Assembly 8 EA $4,142-00 $33,136 00 8 533,136,00 5. 1" Water Service w/Meter Box 98 EA 582400 061,144.00 98 $81,144,00 :6 Blowoff (Temporary) 1 EA 5552.00 $552-00 1 0552.00 7 Blowoff (Permanent) 1 EA 51,657.00 $1,657.00 1 51,657 00 $ Connect to Existing 4 EA $6,903.00 $27,612.00 4 $27,612,00 Subtotal 5405,576,00 Sub144l 9405,576,00 Total 52,698,612,40 1104.1. $2,698,612.40 Tntn1 Constructwn Cost Srrbjoci to En000ta r105i:eo?Lalauloflon [A, bey4greres Construction Engineering 8 Staking @ 1% t As-buill Plans & Cedifications TOTAL COST FOR ENGINEERING FEE CALCULATION Acres: 19.29 Dale: 9/6/19 Lots: 98 B COST OF CITY -FUNDED FACILITIES TO BE BUILT BY DEVELOPER Quantity Tola 80.00 50.00 50 00 50-00 0.00 0,00 0.00 400 o. 00 0,00 0.00 0.00 0.00 0.00 0,00 0 00 0.00 0.00 Subtotal Street System • On -Site 50.00 10% Engineering & Administration 0.00 Total Street System 00.00 80.00 0.00 0.00 0 00 0,00 0,00 0.00 0.00 0.00 Subtotal Storm Drain System 50,00 0% Engineering & Administration 0.00 Total Storm Drain System 90.00 Subtotal Sanitary Sewer System 10% Engineering & Administration Total Sanitary Sewer' System Subtotal Water System 10% Engineering 8 Administration Total Water System Faithful Performance: 100% of A 52,728,100.00 Labor & Materials: 100% of A $2,728,100.00 .661.3.512-49 526,986,12 $2,50400 A, Total 92,728,150.00 $0.00 50,00 00 00 0 00 0 00 0 00 $0 00 0 00 50 00 $0.00 $0 00 50.00 50-00 50-00 50 00 0-00 50.00 50.00 0 00 50 00 B. Total 50.00 EXHIBIT C NOTE: r ri ry of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online Insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically Insurance Requirements for Public Improvement Agreements Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this exhibit, nor shall Developer allow any contractor of subcontractor to commence work on Developer's contact 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 endorsement and shall specifically bind the insurance carrier. Developer shall procure and maintain during the life of this Agreement such insurance as shall insure City, it's elected and appointed boards, commissions, officer, agents, employees and volunteers, 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 Developers' or any contractors' or subcontractors' operations hereunder, whether such operations be by Developer or any contractor of subcontractor or by anyone directly or indirectly employed by either Developer or any contractor of subcontractor, and the amount of such insurance shall be as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $6,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2 Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Developer has no owned autos, then hired, and non - owned autos with limit no less than $5,000,000 per accident for bodily injury and property damage. 3 Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease 4, Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Developer including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Developer's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Primary and Non -Contributory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Developer's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers._ Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Developer's insurance and shall not contribute with it, (c) Waiver of Subrogation Developer hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Developer may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from ttie insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the proiect that It is insuring. (d)S? Thi:r T rtr resru3as vageyt`1•a.2pagaSue .._._._._ Risk: rev. 9/202018 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 company's liability under the Developers commercial general liability and automobile liability policies. (e) Notice of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of Coveraae M 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. 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.). (g) Failure to Comply If Developer fails or refuses lo 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) 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. (h) Verification of Coverage Developer shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause, All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Developer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time, Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Developer to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Developer and Developer's officers, employees, agents, representatives, contractors or subcontractor. Developer's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Developer to procure and maintain a policy of insurance. (k) Subcontractor Developer shall require and verify that all contractor and subcontractor maintain insurance meeting all the requirements stated herein, and Developer shall ensure that City is an additional insured on insurance required from contractors and subcontractors. (I) 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. (m) Cornpteted Operations Endorsement For three years after completion of the project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04, will be provided to the City of Lodi. Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for e period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. Page 2 1 of 2 pages 1 Risk: rev. 9/202018 RESOLUTION NO. 2019-66 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN IMPROVEMENT AGREEMENT FOR GATEWAY NORTH SUBDIVISION, UNIT NO. 1, TRACT NO. 3940 WHEREAS, Gateway North Subdivision, Unit No. 1, is located west of Lower Sacramento Road and south of Lodi Shopping Center; and WHEREAS, Unit No. 1 consists of 98 single-family residential lots; and WHEREAS, the developer, Blossom Land Company (Developer), will present the final map for approval at a later date; and WHEREAS, the project includes the installation of all interior subdivision public improvements and street improvements on Lower Sacramento Road from the southerly Lodi Shopping Center Driveway to its southerly boundary of the single-family home development (270 linear feet); and WHEREAS, Developer has furnished the City with improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed subdivision; and WHEREAS, Development Impact Fees will be collected as part of the building permit process prior to issuing a certificate of occupancy for each single-family residence, in accordance with Lodi Municipal Code Section 15.64.040. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute the Improvement Agreement for the Public Improvements of Gateway North, Unit No. 1, Tract No. 3940, attached hereto as Exhibit A, and made a part hereof. Dated: April 17, 2019 I hereby certify that Resolution No. 2019-66 was passed and adopted by the City Council of the City of Lodi in a regular meeting held April 17, 2019, by the following vote: AYES: COUNCIL MEMBERS — Johnson, Kuehne, Mounce, Nakanishi, and Mayor Chandler NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None 2019-66 WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of GATEWAY NORTH, UNIT NO.1 TRACT NO. 3940 EY Y i iBITA1 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Blossom Land Company, a California 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 Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more particularly described in Exhibit A, attached hereto and incorporated herein. Developer will present to City for approval the final subdivision maps based on the Tentative Map approved by the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission Resolution No. 17-20, entitled "Gateway North". Subsequent to the issuance of the subdivision map in favor of FCB Homes, title to the property was transferred to Blossom Land Company, a California corporation. Developer will present a final subdivision map titled "Gateway North, Unit No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map will be filed with the Public Works Director for presentation to the City Council for approval at a later date and is therefore not attached; Developer has requested approval of the improvement plans (Plan Set D181) prior to the final approval of the Map. The public improvement plans include all streets, highways or public ways, and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No. 1 Subdivision, 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 his designee; Developer acknowledges that a subsequent improvement agreement will be required for the Lower Sacramento Road improvements prior to final approval of the Map; City Council will adopt a resolution to approve the Map and accept the dedications therein offered at a later date on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of the 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 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 D181, which is on file in the Public Works Department. C:\Users\pfarris\AppData\LocalWlicrosoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca pw.doc 1 4/22/2019 The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: A. Street Tight installation and connection to City system; B. Street frontage improvements on Lower Sacramento Road (by separate agreement); C. Natural gas line installation; D. Telephone line installation; E. Electrical system; F. Cable television system. 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 map 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 B, attached hereto and incorporated herein. 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. Street seal coat; 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; C. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering twelve months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fee must be paid prior to Project acceptance. 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. Unless Developer pays all costs allocated to Developer in RA -18-01, in accordance with LMC Section 17.62.060, developer shall be responsible for purchasing the real property and easement underlying the City's pipeline easement through a portion of the property, as shown on Exhibit A, upon final map approval from the City of Lodi at a price set by a mutually agreed appraiser. The vacation of this property shall be in accordance with the appropriate provisions of the Streets and Highways Code of the State of California. 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, and art in public places are required for this Project. Payment of the Development Impact Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for each dwelling. The amounts shown in this Agreement for the Development Impact Mitigation Fees are those in effect at the time of execution of this Agreement. In C:\Users\pfarris\AppData\Local\Nticrosoft\Windows\Temporary Internet Files \Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw doc 2 4/22/2019 conformance with LMC Section 15.64.050, the fees are automatically adjusted on January 1st of each year. Fees may also be adjusted at other times by separate City Council action. The actual fees to be paid will be those in effect at the time of payment. This Agreement shall in no way limit City's ability to charge Developer the fees in effect at the time Developer pays the fees. The Gateway North Unit No. 1 Subdivision (Tract No. 3940) is located in Zone 2 of the City's Storm Drain Impact Fee Program. In accordance with Resolution 2013-184, the appropriate storm drain impact fee shall be collected for each development in Zone 2 that does not construct its fair share of permanent storm drain improvements. This development has not constructed its fair share of storm drain improvements and is subject to the actual storm drain fee in effect at the time of payment unless developer pays all costs allocated to Developer in RA -18-01 in accordance with LMC Section 17.62.060. 5. Reimbursement to Others Developer acknowledges that the City Council adopted RA 18-01 at a public hearing held on April 17, 2019 (Resolution No. 2019-66). Developer agrees to pay all costs allocated to Developer in RA 18-01 in accordance with LMC §17.62.060. 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, within 365 calendar days from the date of this Agreement, perform or cause to be performed, all work and/or improvements described in this Agreement. 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 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 make the sole and final determination 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 Map 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 Project, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the Project work site at all times during construction, with authority to act for Developer. C:\Users\pfarris\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 3 4/22/2019 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, or have already been 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: $ 2,728,100.00 $ 2,728,100.00 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 17 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. 14. Indemnity and Hold -Harmless Agreement Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Developer hereby assumes liability for and agrees to defend (at Indemnitees' option), indemnify, protect and hold harmless City and its elected and appointed boards, commissions, officers, agents, volunteers, and employees ("Indemnitees") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including attorney fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement or the performance of the Project including, but not limited to, death of or bodily or personal injury to persons or damage to property, including owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Developer, its officers, agents, employees, contractors or subcontractors including, but not limited to, liability arising from: A. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Project site by Developer, its officers, agents, employees, contractors or subcontractors; B. Any operation conducted upon or any use or occupation of the premises by Developer, its officers, agents, employees, contractors or subcontractors under or pursuant to the provisions of this Agreement or otherwise; C:\Users\pfarris\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 4 4/22/2019 C. Any act, omission, or negligence of Developer, its officers, agents, employees, contractors or subcontractors. D. Any failure of Developer, its officers, agents or employees to comply with any of the terms or conditions of this Agreement or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and E. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections A, B, C, D, E, and F of this paragraph, existing or conducted upon or arising from the use or occupation by Developer on any other premises in the care, custody and control of City. F. Any and all costs incurred by or imposed upon the City of Lodi associated with the construction of any and all public infrastructure (including but not limited to industrial and domestic wastewater mains, and storm drain) not otherwise covered by the Storm Impact Fee Program, that benefit or serve the Gateway North Unit No. 1 Subdivision (Tract 3940). In the event Developer does not reimburse City for the above improvements, Developer shall have no right to hook into the public infrastructure and will be required to submit a revised Tentative Map showing an alternative design to provide for public infrastructure necessary to serve the Project. The Developer also agrees to indemnify City and pay for all damage or loss suffered by City including but not limited to damage to or loss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections A, B, C, D, E, and F of this paragraph. Developer's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Developer shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of City. Developer agrees to obtain executed indemnity agreements with provisions identical to those set forth in this paragraph from each and every contractor or subcontractor or any other person or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully responsible according to the terms of this paragraph. Failure of City to monitor compliance with these requirements of this paragraph imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this paragraph. This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, C:\Users\pfarris\AppData\LocalVicrosoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 5 4/22/2019 reserve, retrain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees' interests. City shall, in its sole discretion, determine whether such assurances are reasonable. 15. 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 behalf or request until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved by the City's Risk Manager. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Insurance requirements are set forth in Exhibit C, attached hereto and incorporated herein. 16. 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. 17. 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. 18. Landscape Maintenance Developer shall perform regular maintenance on landscape elements, including plants and irrigation systems installed with the Project for a period of two (2) years after the final acceptance by City. 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. 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 $5,263 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." C:\Users\pfarris\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 6 4/22/2019 20. 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 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 Project construction 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 telephone, electrical, cable television, and/or gas 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. 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 Project construction. The above may be modified when alternate methods of protection approved by the Fire Chief are provided. 22. 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. 23. Dwelling Occupancy City will not allow occupancy of any building or structure within the area of the Map until all deferred fees have been paid, public improvements have been approved and accepted by the Public Works Department per established City policy and other requirements of City codes have been met. If building is started prior to acceptance of the improvements, it is Developer's responsibility to inform all prospective purchasers that occupancy will not be permitted until said deferred fees are paid and public improvements are so accepted by City. 24. 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. C:\Users\pfarris AppData\LocaIUvlicrosoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw doc 7 4/22/2019 25. 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. 26. Breach of Agreement; Performance by Surety or City In the event of any breach of this Agreement, Developer's surety shall have the duty to take over and complete the work and the improvements as 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 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. 27. This Agreement shall run with the land and be binding on the Developer, its heirs, successors and assigns. 28. No Vesting. Nothing is this Agreement will vest Developer against conditions or requirements being added to the Map at the time of its approval. 29. 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. 0. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows: Thomas P. Doucette President Blossom Land Company 10100 Trinity Parkway, Suite 420 Stockton, CA 95219 C:\Users\pfarris\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 8 4/22/2019 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. 30. Authority The undersigned hereby represent and warrant that they are authorized by the party they purport to represent to execute this Agreement. /The balance of this page is intentionally left blank.] C:\Users\pfarris\AppData\Local\Ivticrosoft\Windows\Temporary Internet Files\Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 9 4/22/2019 31. 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 BLOSSOM LAND COMPANY, a California corporation Dated' By: THOMAS P. DOUCETTE President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated: By: STEPHEN SCHWABAUER City Manager (CORPORATE SEAL) C:\Users\pfarris\NppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\3013VF3H\Council Approved ImpAgmt Gateway North Unit 1 march 12_2019_DSS CLEAN.Finalca.pw.doc 10 4/22/2019 EXHIBIT A Order Number: 0192-5663216 Page Number: 9 LEGAL DESCRIPTION Real property In the City of Lodi , County of San Joaquin, State of California, described as follows; PARCEL 1; THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION I5, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN. EXCEPT THEREFROM: (1) THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS. (2) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH LINE, 735.50 FEET; THENCE NORTHERLY, PARALLEL TO THE EAST UNE OF SAID NORTHWEST QUARTER, 1271 FEET, MORE OR LESS, TO THE SOUTH UNE OF HIGHWAY 12, AS DESCRIBED IN DEED RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS; THENCE EASTERLY ALONG THE SOUTH UNE OF SAID HIGHWAY 12, 735.50 FEET TO THE WEST LINE OF LOWER SACRAMENTO ROAD; THENCE SOUTHERLY ALONG SAID WEST LINE, 1271 FEET, MORE OR LESS, TO THE POINT OF BEGINNING, (3) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST UNE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00° 03' EAST, PARALLEL WITH THE EAST LINE OF SAID NORTHWEST QUARTER SECTION, 1246.35 FEET TO THE SOUTH UNE QF KETTLEMAN LANE (100 FEET WIDE); THENCE ALONG SAID SOUTH LINE, NORTH 89° 09' 30" WEST, 546.33 FEET TO THE SOUTHERLY PROJECTION OF THE WEST LINE OF LOT 10 OF THE TAYLOR TRACT AS FILED IN VOL 3 OF MAPS AND PLATS, PAGE 47, SAN JOAQUIN COUNTY RECORDS; THENCE RUNNING PARALLEL WITH SAID EAST UNE OF TI -IE NORTHWEST QUARTER SECTION, SOUTH 0° 03' WEST, 1246,31 FEET TO SAID SOUTH LINE OF THE NORTH HALF OF THE NORTH HALF OF SECTION 15; THENCE ALONG SAID SOUTH LINE, SOUTH 89° 09' 15" EAST, 546.33 TO THE TRUE POINT OF BEGINNING. (4) THAT PORTION CONVEYED TO THE CITY OF LODI BY DEED RECORDED AUGUST 12, 2003 AS INSTRUMENT NO. 2603-18-1033, SAN JOAQUIN. GOUNN RECORDS: PARCEL 2: A PORTION OF PARCEL NINE, PARCEL TEN, PARCEL ELEVEN, PARCEL THIRTEEN AND ALL OF PARCEL TWELVE, AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: First American 77de Pape 9 or 21 Order Number: 0192-5653216 Page Number: 10 COMMENCING AT A BOLT MARKING THE CENTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, ALSO BEING POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD; THENCE SOUTH 00° 00' 33" EAST, 26.00 FEET ALONG THE NORTH -SOUTH QUARTER (N -S 1/4) SECTION LINE OF SAID SECTION 15; THENCE THE FOLLOWING FIFTEEN (150 COURSES: 1) SOUTH 89° 57' 53" WEST, 439.30 FEET; 2) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 51' 28" AND AN ARC LENGTH OF 463.04 FEET; 3) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 25° 49' 21" WEST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 00° 35' 14" AND AN ARC LENGTH OF 9.98 FEET; 4) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 25° 14' 07 WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 95° 26' 10" AND AN ARC LENGTH OF 39.98 FEET 5) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 70° 12' 03" EAST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 12' 20" AND AN ARC LENGTH OF 3.50 FEET; 6) NORTH 70° 24' 23" WEST, 50 FEET; 7) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING NORTH 70° 24' 23" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 90° 16' 50" AND AN ARC LENGTH OF 37.82 FEET; 8) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTH FROM A RADIAL LINE BEARING SOUTH 19° 18' 47" WEST, HAVING A RADIUS OF 966.00 FEET, A CENTRAL ANGLE OF 36° 47' 59" AND AN ARC LENGTH OF 620.44 FEET; 9) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 17° 29' 12" EAST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 45' 34" AND AN ARC LENGTH OF 38.86 FEET; 10) SOUTH 69° 45' 14" WEST, 50.00 FEET; 11) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 69° 45' 14" WEST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 27' 35" AND AN ARC LENGTH OF 7.82 FEET; 12) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING SOUTH 69° 17' 39" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 43' 09" AND AN ARC LENGTH OF 38.84 FEET; 13) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 23° 25' 30" EAST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 02° 30' 06" AND AN ARC LENGTH OF 42.53 FEET; 14) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE NORTHWEST FROM A RADIAL LINE BEARING NORTH 25° 55' 36" WEST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 53' 29" AND AN ARC LENGTH OF 463.64 FEET; AND F/rstAmeMcan Title Page 10 of 21 Order Number: 0192-5663216 Page Number: 11 15) SOUTH B9° 57' 53" WEST, 456.75 FEET TO THE WEST UNE OF SAID PARCEL NINE, ALSO BEING THE WEST LINE OF SAID SECTION 15; THENCE ALONG SAID WEST UNE, NORTH 00° 02' 07" WEST, 513.00 FEET; THENCE LEAVING LAST SAID LINE, NORTH 89° 57' 53" EAST, 333.88 FEET; THENCE ALONG THE FOLLOWING THIRTEEN (13) COURSES: 1) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 90.30 FEET; 2) ALONG AN ARC OF CURVE CONCAVE TO THE NORTH FROM A RADIAL LINE BEARING NORTH 02° 35' 18" WEST, HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 02° 33' 11" AND AN ARC LENGTH OF 13.37 FEET; 3) SOUTH 89° 57' 53" WEST, 8.52 FEET; 4) PARALLEL WITH THE WEST UNE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 142.00 FEET; 5) NORTH 89° 57' 53" EAST, 39.61 FEET; 6) NORTH 67° 41' 55" EAST, 77.99 FEET; 7) NORTH 22° 18' 05" WEST, 19.47 FEET; 8) NORTH 67° 41' 55" EAST, 142.00 FEET; 9) SOUTH 22° 18' 05" EAST, 137,98 FEET; 10) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 16° 33' 44" EAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 21° 31' 13" AND AN ARC LENGTH OF 187.50; 11) SOUTH 85° 02' 31" EAST, 183.56 FEET; 12) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 04° 59' 36" AND AN ARC LENGTH OF 69.72 FEET; AND 13) NORTH 89° 57' 53" EAST, 291.25 FEET TO THE POINT OF BEGINNING; THENCE FROM SAID POINT OF BEGINNING THE FOLLOWING TWENTY-FIVE (25) COURSES: 1) SOUTH 00° 00' 18" WEST, 37.97 FEET; 2) SOUTH 89° 59' 42" EAST, 37.00 FEET; 3) NORTH 44° 59' 05" EAST, 14.14 FEET; 4) NORTH 89° 59' 53" EAST, 80.00 FEET; 5) SOUTH 45° 00' 55" EAST, 14.15 FEET; 6) NORTH 89° 56' 58" EAST, 52.00 FEET; 7) NORTH 44° 59' 05" EAST, 14.14 FEET; 8) NORTH B9° 57' 53" EAST, 70.01 FEET; 9) SOUTH 00° 00' 18" WEST, 217.23 FEET; 10) SOUTH 76° 57' 09" EAST, 41.55 FEET; 11) 501111-1 74° 52' 04" EAST, 51.22 FEET; 12) SOUTH 72° 33' 57" EAST, 51.22 FEET; Mist American llt/e Page llof21 Order Number: 0192.5663216 Page Number: 12 13) SOUTH 70° 10' 31" EAST, 55,17 FEET; 14) SOUTH 67° 44' 49" EAST, 52.00 FEET; 15) NORTH 22° 15' 11" EAST, 20.02 FEET; 16) SOUTH 65° 16' 22" EAST, 64,97 FEET; 17) SOUTH 67° 13' 39" EAST, 55.34 FEET; 18) SOUTH 69° 46' 20" EAST, 7.27 FEET; 19) NORTH 18° 27' 11" EAST, 100.26 FEET; 20) ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHEAST FROM A RADIAL UNE BEARING NORTH 18° 27' 11" EAST, HAVING A RADIUS OF 726.00 FEET, A CENTRAL ANGLE OF 00° 39' 16" AND ARC LENGTH OF 8.29 FEET; 21) NORTH 17° 47' 55" EAST, 52.00 FEET; 22) NORTH 28° 49' 47" WEST, 13.73 FEET; 23) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST FROM A RADIAL UNE BEARING NORTH 75° 27' 29" WEST, HAVING A RADIUS OF 246.00 FEET, A CENTRAL ANGLE OF 14° 32' 13" AND AN ARC LENGTH OF 62.41 FEET; 24) NORTH 00° 00' 18" EAST, 21.15 FEET; AND 25) SOUTH 89° 12' 24 " EAST, 623.56 FEET TO THE EAST LINE OF SAID PARCEL THIRTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT ON THE EAST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, NORTH, 216.70 FEET TO THE SOUTHEAST (SE) CORNER OF PARCEL EIGHTEEN AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS; THENCE ALONG THE SOUTH LINE OF SAID PARCEL EIGHTEEN, WEST 310.00 FEET TO THE SOUTHWEST (SW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE WEST UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE EAST LINE OF THE NORTHWEST' QUARTER (NW1/4) OF SAID SECTION 15, NORTH, 180.00 FEET TO THE NORTHWEST (NW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE NORTH LINE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE SOUTH LINE OF SAID PARCEL EIGHTEEN, EAST, 310.00 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL EIGHTEEN, ALSO BEING A PONT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BANG A POINT OF THE EAST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST LINE, NORTH, 357.38 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL TEN, ALSO BEING A POINT ON THE EAST -WEST QUARTER -QUARTER (E- W 1/4 1/4) SECTION UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST -WEST QUARTER -QUARTER (E -W 1/4 1/4) SECTION UNE, NORTH 89° 12' 24" WEST, 13.12:58 FEET, MORE GR LESS, TGA POINT, SOUTH 89° 12' 24" EAST, 1330,19 FEET FROM THE NORTHWEST (NW) CORNER OF SAID PARCEL 7EN; THENCE LEAVING SAID LINE, SOUTH 00° 00' 18" WEST, 648.43 FEET TO THE POINT OF BEGINNING, BEING PARCEL 5 OF LOT LINE ADJUSTMENT 09-R- 03, RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002139, SAN JOAQUIN COUNTY RECORDS. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO, 2010-002141, SAN JOAQUIN COUNTY RECORDS. First American 77t/e Page 12 of 21 Order Number: 0192-!663216 Pape Number: 13 PARCEL 3: A PORTION OF THE SOUTHERLY ONE-HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; THENCE NORTH, ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 784 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LAND; THENCE NORTH ALONG THE EAST LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 180 FEET; THENCE DUE WEST A DISTANCE OF 310 FEET; THENCE DUE SOUTH A DISTANCE OF 180 FEET; THENCE EAST, 310 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (6001 OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO, 2010-002141, SAN JOAQUIN COUNTY RECORDS. APN: 058-030-090-000 (Affects Parcel 1), 058-030-160-000 (Affects Parcel 2) and 058-030-040-000 (Parcel 3) FestAmerfcan 77tfe Page 13 o121 ]!,11 --4.41*-- • I if (-§J 1' Order Number: 0192-366321f Page Number: 14 4 I. Am° ssodurhre N V VJ�J.W.Vii 51041 Rat American Title Page 14 021 Development: Gateway North, Unit No 1 Developer: FCB Homes Engineer: MCR Engineering Date: 9/25/18 ENGINEERING Engineering Fee Inspection Fee Engineering Fee Paid Improvement Agreement Fee ENGINEERING SUBTOTAL IREET SYSTEM Fees: Storm Water Inspection Fees (Charge for 1 year inspection) Charges for work by City Forces: Seal Coat STREET SYSTEM SUBTOTAL SEWER SYSTEM Fees: BILLING SCHEDULE EXHIBIT B Gross Acreage: No, of Units: 19 29 98 Construction cost $2,728,100 00 DEVELOPER COST_ _ — - CREDITS (5% of $100,000) ENGFEE $5,000 00 (3.5% of $200,000) ENGFEE $7,000.00 (2 5% of $2,428,100) ENGFEE $60,702 50 (4% of $250,000) ENGINS $10,000.00 (3 5% of $750,000) ENGINS $26,250.00 (3% of 51,728,100) ENGINS 551,543 00 ENGFEE $ 119,548 00 ENGFEE 52,211,00 5163,006,50 $ 119,548 00 PW03 1 LS @ $ 2,047 00 $2,047.00 WKOTPW 140,313 SF @ $ 0.06 511,225,04 513, 272,04 50.00 Charges for Work by City Forces: TV Inspection for Pipe Installation PW03 3,785 LF @ $ 1 50 55,677,50 TV Inspection for Project Acceptance PW03 3,765 LF @ $ 1.50 55,677,50 SEWER SYSTEM SUBTOTAL 511,355.00 STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe installation TV Inspection for Project Acceptance (1701 6525) 2,490 LF @ $ (1701.6525) 2,490 LF @ $ 1 50 $3,735 00 1 50 $3,735 00 STORM DRAIN SYSTEM SUBTOTAL $7,470.00 $0;00 ELECTRICAL SYS1 EM To be billed separately by Electric Utility Department TOTAL AMOUNT OF BILLING SCHEDULE $195,10154 $119,548,00 ReimbursemeatAgraemen t-2007-52 058-030-16 (old APN 058-030-03) 18 15 Acres @ $5,735,99/Acre 5104,108,22 058-030-16 (old APN 058-030-05) 3 90 Acres @ $4,832.08/Acre $18,845,11 058-030-04 $14,684 54 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $213,193.41 Pending Reimbursement RA 1801 In accordance with LMC Section 17.62.060 5818,067.45 Total Fee $1,031,260.86 City of Lodi Publics Works Department COST ESTIMATE FOR IMPROVEMENT SECURITY Uevelopmenl:-Gateway North, Unit No 1 Developer: FOB Homes Engineer MCR Engineering Acres: ID 29 Date: 9/6/18 Lots: 98 TOTAL COST OF PROJECT IMPROVEMENTS A DEVELOPER COST B COST OF CITY -FUNDED FACILITIES TO BE BURT By DEVELOPER Item 1]=sOinkl^ Quantify 1�(r Price Tall) Lj{,anl y Tola 1 She P1etlarallutl $ Oraninq Site Preparation, Clearing and Grubbing 19 AC 51,301 00 528.239 00 19 526,239 00 Earthwork 6.000 CY 53 00 518,000 00 6 000 518,000 00 5 Lot Grading 90 EA 52,071 DO 0202,950 00 96 $202,956 00 4 Basin Excavation 1 LS 9150,000 00 5150,000 00 1 5150,000 00 Snoo[ IrOgrOy61hIrr7t0 I Aggregate Base 4" Class II 140,313 SF 90 60 $112,250 40 140,313 $112,25040 2 Asphalt Concrete 2 5" 140.313 SF 02 00 9280,626 00 140,313 5280,626 00 3 Survey Monuments 17 EA 5828 00 $14.076 00 17 914,076 00 4 Vertical Curb, Gutter, & Sidewalk 705 LF 535 00 527,475 00 785 527,475 00 5 Roll Type Cum, Gutter, & Sidewalk 6,524 LF 530 00 $195,720 00 6,524 5195,720 00 6 Sidewalk 37,821 SF 58 00 5302,508 00 37,821 $302,588 00 7 Curb Relum Incl, Ramp 14 EA 93,451 00 948.314 00 14 548,314 00 8 Curb Return wlo Ramp 3 EA 91.500 00 54,500 00 3 54,500,00 9 In -Line Ramp 0 EA 02,761 00 918,586 00 6 516.566,00 1101 Concrete Driveway Apron 3 EA 52.071 00 08.213 00 3 06,213 00 Street Lights 39 EA $4,142 00 $181,538 00 39 5161.538 00 12 8' Masonry Wall & Pilaster 1.260 LF 5173 00 5217,980 00 1 260 $217,980 00 13 Signage & Striping 1 LS 515,000 OU 515,000 00 1 015,000 00 14 Erosion & Sediment Control 98 EA 5200 00 519,600 00 98 519,600 00 Subtotal 51,619,623 40 911600101 61 819,623 40 0tiaf 111 bra ilt S 1n tdrt( 9 12° Storm Drain Pipe 519 LF 548 00 524.912 00 519 524.912 00 7 10" Sloml Drain Pipe 1.002 LF 962 00 582,124 00 1 002 582,124 00 3 18" Storm Drain Plpe 133 LF $76 00 010,108 00 133 $10,108 00 a 24" Storni Drain Pipe 725 LF 590 00 $65,250 00 725 585,250,00 30" Storm Drain Pipe 111 LF 597 00 $10,767 00 111 $10,767 00 9 Side Inlet CalCh Basin 14 EA 52,761 00 538,854 00 14 038,654 00 i 48" Storm Drain Manhole 9 EA 54.142 00 537.278 00 0 037,276 00 8 Connect to 96151160 Storm Drain 2 EA 56,903 00 513.806 00 2 513,606 00 0 Stub & Plug 1 EA 91,000,00 51,000.00 I 51,000,05 Subtotal 3203,899 00 5601089/ 5263,899 00 14nnllpry Seder 5y91em 1 8" San'ary Sewer Pipe 1.624 LF $17,00 027,608 00 1,624 027,608 00 2 8" Sanitary Sewer Plpe 2.161 LF 530 00 $84,830 00 2,181 964.830 00 3 Sanitary Sewer Manhole (48") 12 EA 93,451 00 641,412 00 12 041,412 00 4 Sanitary Service with Cleanoul 98 EA 5621 00 580,858.00 88 560,858.00 5 Connect to Existing Sanitary Sewer 2 EA 58,903 00 513,806 00 2 513 806 00 6 Stub & Plug 1 EA 51,000 00 51.000 00 1 51,000 00 .Qu.arLy 12101 50 00 SO 00 SO 00 50 00 0,00 0.00 0,00 0,00 0 00 0 DO 0,00 0 00 0 00 0 00 0 00 0 00 0 00 0 00 Subtotal Street System - On -Silo 50 00 10% Er10111oerl J & AAmtnlvlrollon 0 00 Total Street System SO 00 Subtotal Storm Drain System 0% Engineering & Administration Total Storm Drain System Subtotal 5209.514 00 SIr094197 5209,514 00 Subtotal Sanitary Sewer System 10% Engineering & Administration Total Sanitary Sewer System 14+ly"t 4vllvrg I 8" Water Pipe 210 LF 541 00 58,61000 210 58,610.00 2 8" Water Pipe 3,995 LF 555 00 5210,725 00 3.995 5219,725 00 3 8" Gale Valve 20 EA $1,657 00 533,140 00 20 533,140 00 4 Fire Hydrant Assembly 8 EA 04,142 00 233.136 00 8 533,136 00 5 1" Water Service wlMeler Box 96 EA $828 00 581,144,00 98 501,144 00 0 Blowoff (Temporary) 1 EA 5552 00 5552 00 1 5552 00 7 Blowoff (Permanent) 1 EA 51.65700 01,857 DO 1 21.857 00 8 Connect to Existing 4 EA 86,903,00 027,612 00 4 $27,612 00 Subtotal 5405,576 00 Subtittii7' 9405,578,00 Total $2.698,612 40 Total Construction Cost Subject to Engineering Fee Calculelion (A Developer Oast). Construction Engineering 8 Slaking @ 1%t As-buill Plans & Certifications TOTAL COST FOR ENGINEERING FEE CALCULATION Faithful Performance: 100% of A S2,720,100 00 Labor & Materiels 100%o(A 52,728,10000 Total 52,898,612, 40 56;699,815 40 526,966 12 52,500 00 A. Total 02,728.100 00 50 00 0 00 0 00 0 00 0 00 0 00 0 00 0 00 0.00 50 00 0,00 $0 00 50 00 S0 00 S0 00 0 00 0 00 0 00 00.00 000 50,00 S0 00 SO 00 00 00 50 00 50 00 60 00 0 00 SO 00 Subtotal Water System SO 00 10% Engineering & Administration 0 00 TOM! Water System 50 00 B. Total S0.00 EXHIBIT C NOTE: int, Ary of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from me City's online Insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically insurance Requirements for Pubic Improvement Agrreernents Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under this exhibit, nor shall Developer allow any contractor of subcontractor to commence work on Developer's contact 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 endorsement and shall specifically bind the insurance carrier. Developer shall procure and maintain during the Ilfe of this Agreement such Insurance as shall insure City, its elected and appointed boards, commissions, officer, agents, employees and volunteers, 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 Protect property, Including any public streets or easernents, from Developers' or any contractors' or subcontractors' operations hereunder, whether such operations be by Developer or any contractor of subcontractor or by anyone directly or indirectly employed by either Developer or any contractor of subcontractor, and the amount of such insurance shall be as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1 Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence' basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less then $6,000,000 per occurrence, If a general aggregate Ilmit applies, either the general aggregate limit shall apply separately to thls project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit, 2 Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Developer has no owned autos, then hired, and non - owned autos with limit no less than $5,000,000 per accident for bodily injury and property damage. 3 Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease 4. Professional Liability, For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of live (5) years following ccmpietlon of the Public Improvements, Such Insurance shall be endorsed to include contractual liability Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Developer Including materials, parts, or equipment furnished In connection with such work or operations. General liability coverage can be provided In the form of an endorsement to the Developer's insurance (at least as broad as ISO Forrn CO 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; lr_ta CG 20 37 If a later edition is used (b) Primary And Non -Contributory Insurance Endorsemonl The limits of Insurance coverage required may be satisfied by a combination of primary and umbrella or excess Insurance. For any claims related to this contract, the Developer's insurance coverage shall be primary coverage at least as bread as ISO CG 20 01 04 13 as respects the Entity, its.oHicers,. officials, .employees, anal voluruears. Any insurance er sejf-irisurane.0 rll5intaiingd gy. the Entity, its officers, officials, employees, or volunteers shall be excess of the Developer's Insurance and shall nol contribute Wen it. (c) Waiver of Subr❑uatiorl Developer hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Developer may acquire against the City of Lodi by virtue of the payment of any Toss under such Insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Ctty of Lodi has received a waiver of subrogation endorsement from the Insurer NOTE: (1) The street address of the CITU of LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The Insurance certificate must state, on its face or as an endorsement, a description of the project that It is insuring. (d) SOV -• a e ...o Pngeg--- Risk: rev 9/2020/8 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 company's liability under the Developers commercial general liability and automobile [lability policies. (e) Notice of Cancellation or Chanoe in Deice:age EreiorSemerrt This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Rrsk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of CAVera2e Ail policies shall be in effect on or before llle first day of the Term of this Agreement. Ai feast thirty (30) days prior to the expiralton 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. !f Developer's insurance lapses or is discontinued for any reason. Developer shall immediately notify the City and Immediately obtain replacement insurance, 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 Glairns Act (Calltomla Government Code Section 810 et seq.). Failure to CemPly If Developer fails or refuses to obtain and maintain the required insurance, or falls 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 late their 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 tile rnsurer(s), end rale of interest. Developer shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice, Notwithstanding any other provision of this Agreeme•et, if Developer falls or refuses to obtain or maintain insurance as required by this agreement, or falls to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Developer stiall immediately cease use of the Slte or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Covgra0a Developer shall furnish the City with a copy of the policy declaration and endorsement page(a), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved oy the City before work commences. However, failure to obtain the required documents prior to the work beginning shalt riot waive the Developer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, Including endorsements required by these specifications, at any time Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self -Insured retentions must be declared to and approved by the City. The City may require the Developer to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named Insured or City (j) Insurance Limits The limits of insurance described herein shall not limit the Ilabtllty of the Developer and Developer's officers, employees, agents, representatives, contractors or subcontractor, Developer's obligation to defend, Indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of lids paragraph Is not limited to or restricted by any requirement In the Agreement for Developer to procure and maintain a policy of insurance. (k) Subcontractor Developer shall require and verify that all contractor and subcontractor maintain insurance meeting all the requirements slated herein, and Developer shall ensure that City is an additional insured on insurance required from contractors and subcontractors, (I) 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 Oast 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 Net of California eligible surplus lines insurers (LESLI fist) and otherwise meet City requirements. Completed Operations Endorsement For three years after completion of the project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04. will be provided to the City of Lodi, Professional Liability. For any consultant or other professional was will e'nglneer or design the Public Improvements, liability insurance for errors and omissions with limits not iess than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability (g) (m) Page 2 I of 2 pages 1 Risk: rev. 9/202018 WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the PUBLIC IMPROVEMENTS of GATEWAY NORTH, UNIT NO.1 TRACT NO. 3940 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", and Blossom Land Company, a California 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 Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more particularly described in Exhibit A, attached hereto and incorporated herein. Developer will present to City for approval the final subdivision maps based on the Tentative Map approved by the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission Resolution No. 17-20, entitled "Gateway North". Subsequent to the issuance of the subdivision map in favor of FCB Homes, title to the property was transferred to Blossom Land Company, a California corporation. Developer will present a final subdivision map titled "Gateway North, Unit No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map will be filed with the Public Works Director for presentation to the City Council for approval at a later date and is therefore not attached; Developer has requested approval of the improvement plans (Plan Set D181) prior to the final approval of the Map. The public improvement plans include all streets, highways or public ways, and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No. 1 Subdivision, 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 his designee; Developer acknowledges that a subsequent improvement agreement will be required for the Lower Sacramento Road improvements prior to final approval of the Map; City Council will adopt a resolution to approve the Map and accept the dedications therein offered at a later date on the condition that Developer will first enter into and execute this Agreement with City and meet the requirements of the 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 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 D181, which is on file in the Public Works Department. KAV PIDEV$qF;VUDevelou+nep15'l,01$oulrnvest G aiv glit4..' YHP. ntov+11,tvn4.A9re. monMEP_LIn,.i[naftnli Qat4'wPY Il:. ri Un[t_ Atard112,302 M_CtF1_IKEIVICAC VAC& AWPIDEV SERV4JevelopnwntslLodi Svilhwesi aiewaSAC Y NorlhVmprevemei4AgreemealItav linll-Gntsway-Nor#14n1Fa-aasrt# 28F9[7SS L6AP:Foaloa.pw.doc s 4/17/2019 The Developer shall also perform or cause to be performed the following items which are not shown on the improvement plans: A. Street light installation and connection to City system; B. Street frontage improvements on Lower Sacramento Road (by separate agreement); C. Natural gas line installation; D. Telephone line installation; E. Electrical system; and F. Cable television system. 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 map 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 B, attached hereto and incorporated herein. 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. Street seal coat; 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; and C. Storm Water Permit Compliance Inspections. The fee shown on the Billing Schedule is based on one (1) inspection per month for construction activities covering twelve months period. The fee will be adjusted, if necessary, when the improvements are complete and ready for acceptance by the City. Any additional fee must be paid prior to Project acceptance. 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. Unless Developer pays all costs allocated to Developer In RA -18-01. in accordance with LMC Section 17.62.080. Ddeveloper shall be responsible for purchasing the real property and easement underlying the City's pipeline easement through a portion of the property, as shown on Exhibit A, upon final map approval from the City of Lodi at a price set by a mutually agreed appraiser. The vacation of this property shall be in accordance with the appropriate provisions of the Streets and Highways Code of the State of California. 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, and art in public places are required for this Project. Payment of the Development Impact Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for each dwelling. The amounts shown in this Agreement for the Development Impact Mitigation Fees are those in effect at the time of execution of this Agreement. In 1 ISaLDEN. $LtwiDevo(QQment811x 1 $out+ergotgg4v++ray\Gal m1'iGf llth imvsmetit AweaumnISREQLLNUmiftraLfgavav Hoar !.!n]11_isna 12 _2019 R.S GLENIfitlglr,B IlyeSLRS:K:1wP1DEV_SERIAOevefosrrnefila-erlLSnukl+wast-6aivwaylGeteway NotthlImpfovernent AgreernenINnlpAgn . a1oway MAI 4 4•i9 -_11S5 a 1:EAN,Fulaiaa:pw,tloe 2 4/17/2019 conformance with LMC Section 15.64.050, the fees are automatically adjusted on January 1st of each year. Fees may also be adjusted at other times by separate City Council action. The actual fees to be paid will be those in effect at the time of payment. This Agreement shall in no way limit City's ability to charge Developer the fees in effect at the time Developer pays the fees. The Gateway North Unit No. 1 Subdivision (Tract No. 3940) is located in Zone 2 of the City's Storm Drain Impact Fee Program. In accordance with Resolution 2013-184, the appropriate storm drain impact fee shall be collected for each development in Zone 2 that does not construct its fair share of permanent storm drain improvements. This development has not constructed its fair share of storm drain improvements and is subject to the actual storm drain fee in effect at the time of payment unless developer pays all costs allocated to Developer in RA -18-01 in accordance with LMC Section 17.62.060. 5. Reimbursement to Others Developer acknowledges that the City Council will adopt RA 18-01 at a public hearing currently scheduled for April 17, 2019 (Resolution No. 2019-_). Developer agrees to pay all costs allocated to Developer in RA 18-01 in accordance with LMC §17.62.060. 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, within 365 calendar days from the date of this Agreement, perform or cause to be performed, all work and/or improvements described in this Agreement. 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 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 make the sole and final determination 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 Map 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 Project, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the Project work site at all times during construction, with authority to act for Developer. 11. Inspection by City 1(3WP1QEV__UCtln. kru tray)LS! .}.SMoYe..&l_ialmo! owiu N.9gkt11l ipro9jnnnt AVVOMVOI)REDlI►'_ImptIamtGalzn Natal Ut1it-f-.rn?rGii1? 201 17$$-CLEAN;Elopica,pw¢gGKAWME-V.SFrxVlpevetolxr+tint0Lodi. otilhAreal cialaymV.Gataway Nerihlknprovemenl Agreenwn{11mpAgrnl Caloway-North Lim( 1 snefoh *--2019-0£4GI EAN Fpr+alea pw:cloo 3 4/17/2019 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, or have already been 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: $ 3,546,167.45 $ 2,728,100.00 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 17 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. 14. Indemnity and Hold -Harmless Agreement Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter defined), the Developer hereby assumes liability for and agrees to defend (at Indemnitees' option), indemnify, protect and hold harmless City and its elected and appointed boards, commissions, officers, agents, volunteers, and employees ("Indemnitees") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including attorney fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnitees arising out of or encountered in connection with this Agreement orf the performance of the Project including, but not limited to, death of or bodily or personal injury to persons or damage to property, including owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Developer, its officers, agents, employees, contractors or subcontractors including, but not limited to, liability arising from: A. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Project site by Developer, its officers, agents, employees, contractors or subcontractors; B. Any operation conducted upon or any use or occupation of the premises by Developer, its officers, agents, employees, contractors or subcontractors under or pursuant to the provisions of this Agreement or otherwise; f 11WP%DE\ SES[ 111.01 ]insli;rSat�Fi�st a I.4t1 91010Yemen MPELE PUN.6 .a an4t tsat rwAv ill Unit 1 march 12 2019 QS$ C4EAN.Finalca,vw.dOcKAWI DEk,LSEMu+lDevaronentaodiSautimett CmatawaylAataway Narttavmpravvamani-Agmemer►11HnpAgmt•Galeway•Nonti•Un4.1 march 12••21999 DSS CLEAN Finaksa:pw.doc 4 4/17/2019 C. Any act, omission, or negligence of Developer, its officers, agents, employees, contractors or subcontractors. D. Any failure of Developer, its officers, agents or employees to comply with any of the terms or conditions of this Agreement or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and E. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections A, B, C, D, E, and F(-1)(2)(3), and (4) of this paragraph, existing or conducted upon or arising from the use or occupation by Developer on any other premises in the care, custody and control of City. F. Any and all costs incurred by or imposed upon the City of Lodi associated with the construction of any and all public infrastructure (including but not limited to industrial and domestic wastewater mains, and storm drain) not otherwise covered by the Storm Impact Fee Program, and -Street-Improvements; that benefit or serve the Gateway North Unit No. 1 Subdivision (Tract 3940). In the event Developer does not reimburse City for the above improvements, Developer shall have no right to hook into the public infrastructure and will be required to submit a revised Tentative Map showing an alternative design to provide for public infrastructure necessary to serve the Project. The Developer also agrees to indemnify City and pay for all damage or loss suffered by City including but not limited to damage to or Toss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in sub -sections A, B, C, a E, and F(4)-(2), •(.3); {4), -and -(5) of this paragraph. Developer's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, Toss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Developer shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Developer will be for that entire portion or percentage of liability not attributable to the active negligence of City. Developer agrees to obtain executed indemnity agreements with provisions identical to those set forth in this paragraph from each and every contractor or subcontractor or any other person or entity involved by, for, with or on behalf of Developer in the performance of this Agreement. In the event Developer fails to obtain such indemnity obligations from others as required here, Developer agrees to be fully responsible according to the terms of this paragraph. Failure of City to monitor compliance with these requirements of this paragraph imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Developer and shall survive the termination of this Agreement or this paragraph. This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to any other rights or remedies that the Indemnitees may have under the law or under any other contract or agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, K9.4.1 AMY..$#3.1[11?4Y.IS DIncil1§M.Q0l.VititlW.'( 1 ris?lS VOAG.d[Ss++:{fSY.iI2[1111II]i11[Qv+1lIt# t11.19iMalk.ai1R.LUUIMA9FlliGACRY ihag91111 drill 1 march 1Z. 21119 OSS c_LE N_Ftp_g1.P++LOcKAwr•T117W_SFRvrc3n++eloonientokL I snmiIl wesifiatewayl6ateway Nerlhltmrxavemant Aron AteciernentlininAtimi gateway North Unit 1•mam it 12_2018 DSSG&EAN-Rannlca-pw fou 5 4/17/2019 reserve, retrain or apply any monies owing to the Developer under this Agreement, if any, for the purpose of resolving such claims; provided, however, City may release such funds if the Developer provides City with reasonable assurance of protection of the Indemnitees' interests. City shall, in its sole discretion, determine whether such assurances are reasonable. 15. 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 behalf or request until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved by the City's Risk Manager. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Insurance requirements are set forth in Exhibit C, attached hereto and incorporated herein. 16. 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. 17. 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. 18. Landscape Maintenance Developer shall perform regular maintenance on landscape elements, including plants and irrigation systems installed with the Project for a period of two (2) years after the final acceptance by City. 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. 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 $5,263 for each assembly required. The purpose of the deposit is to guarantee the return of the assembly in good condition and fulfillment of the other obligations shown in the City's Policies and Procedures entitled "Metering Water Usage of New Water Mains Requiring Temporary Bypasses." 20. Mud, Debris, Dust and Erosion IK•1WPIDEV SERV►Deveiopmenigixt s ogihreostligtvvriraIttoY NorttikvargovailiatertlmtREDIJNE—WarnUintwaly1igit ti >�1nug 1 L2019 _ S$ VIN.EinalsaflGK'►wP1r SERµ14)e+re4opmentar.Loth•Sorerlvweet-GalewaYtC.,atevray N iillinprovement-AgreemegaupAgmt-GatewayNor11►t1+d marali•e2_-2019_[]SS GLEAN,Finaica:pw.sfoo 6 4/17/2019 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 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 Project construction 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 telephone, electrical, cable television, and/or gas 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. 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 Project construction. The above may be modified when alternate methods of protection approved by the Fire Chief are provided. 22. 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. 23. Dwelling Occupancy City will not allow occupancy of any building or structure within the area of the Map until all deferred fees have been paid, public improvements have been approved and accepted by the Public Works Department per established City policy and other requirements of City codes have been met. If building is started prior to acceptance of the improvements, it is Developer's responsibility to inform all prospective purchasers that occupancy will not be permitted until said deferred fees are paid and public improvements are so accepted by City. 24. 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. 25. Notice of Breach and Default LS11NEWIEY €RI7PvU 111411laPAII NItlY.M.i .51.tWAYQPIOYL$ 0,Li iiilPf0YQM411i39LcYMP1A1-tELIIANE �ntiRA_7aii GlowlY.NO/1h Urlil 1mAr_cil1?_20.19__D$3 J.F .F1nglc .gw,d99141WPDEV. SF HuliJevelopmenlsl1odi Sotrlhwe6A GakewaylGa[eway NorltAlmproverm-M AgreernekilImpAgml•foaiawayNorth. Vn4.1•ma 12_20161 -DSS GLEAN Furalaa.pw.doo 7 4/17/2019 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. 26. Breach of Agreement; Performance by Surety or City In the event of any breach of this Agreement, Developer's surety shall have the duty to take over and complete the work and the improvements as 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 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. 27. This Agreement shall run with the land and be binding on the Developer, its heirs, successors and assigns. 28. No Vesting. Nothing is this Agreement will vest Developer against conditions or requirements being added to the Map at the time of its approval. 29. 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. 0. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows: Thomas P. Doucette President Blossom Land Company 10100 Trinity Parkway, Suite 420 Stockton, CA 95219 I eVel ry .ERVIMIonnarileIOLacut ce ezni,iax.1G.0Wal ar illmoromatnt.f amitioiri!REPI,1NE ImiMint 0.atmfty.Nc th unW.m t1i12 MUM CLEQN.Fin8lcai ow rjuI[-1wPOE-v-SERV►taevelopmentall-o4i-Souihwnrss c towayGareway NnrthlirnprovemerreeMennloipAgmt-Gaieway•Nof1h- 1n11- march -t2- 2o1D- fSS CLAAN.Fircalea,pw:dac 8 4/17/2019 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. 30. Authority The undersigned hereby represent and warrant that they are authorized by the party they purport to represent to execute this Agreement. (The balance of this page is intentionally left blank.] W '4 SERVWoVD rnjll 24 SiNY-DA_ 1.QwAtACPPI4lML 9FINM 0yernenI /19C9aMCOREDLINE Lpn Agr!4LQ.At4++!aY_N0r?) lfnil1. marc 12_2019 QSS ClEA_N,Finaica:py[:diKK;►WW1U61r_SERUu]evelopr�en[s1i.oxG Southwest Gaieway%oteway NoRh11rnprovement-Awe.n1eD11hhnpAgR14Goleway MoiIli Unit J •inaich 42 019._DSS C4.FAN FlnHloa-jAw ago 9 4/17/2019 31. 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 BLOSSOM LAND COMPANY, a California corporation Dated: By: THOMAS P. DOUCETTE President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation Dated: By: STEPHEN SCHWABAUER City Manager (CORPORATE SEAL) 1 !i wYMP.EY_SfillffigeLekinntals11.515MuttlweaWatfneadactracarlizinkonnvoiniA9Mei99f}.l0i21lM113f189E0L 1@w ]LN4i#ti t1Sut11ni3rCh 12LalMISS CLEAN. FI9p d,A^n?SLQS2 WPAS1-SER1/147evolopmenlsU.OdFSautiiwo4kGaiwwayiaafeway 1409himprevemen4-AgreemerOmpA$mt•Gateway-North Uni1-1 march -t2-2018 SS CLEAN. FInafoa:pw. loo 10 4/17/2019 EXHIBIT A order Number; 0192-5663216 Paye Number; 9 LEGAL DESCRIPTION Real property In the City of Lodi , County of San Joaquin, State of California, described as follows: PARCEL 1; THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN. EXCEPT THEREFROM: (1) THAT PORTION DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS. (2) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH UNE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH LINE, 735.50 FEET; THENCE NORTHERLY, PARALLEL TO THE EAST UNE OF SAID NORTHWEST QUARTER, 1271 FEET, MORE OR LESS,, TO THE SOUTH LINE OF HIGHWAY 12, AS DESCRIBED IN DEED RECORDED FEBRUARY 16, 1972 IN BOOK 3620 OF OFFICIAL RECORDS, PAGE 118, SAN JOAQUIN COUNTY RECORDS; THENCE EASTERLY ALONG THE SOUTH UNE OF SAID HIGHWAY 12, 735.50 FEET TO THE WEST LINE OF LOWER SACRAMENTO ROAD; THENCE SOUTHERLY ALONG SAID WEST LINE, 1271 FEET, MORE OR LESS, TO THE POINT OF BEGINNING, (3) A PORTION OF THE NORTH HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH HALF OF SAID NORTHWEST QUARTER AND THE WEST LINE OF LOWER SACRAMENTO ROAD (80 FEET WIDE); THENCE WESTERLY ALONG SAID SOUTH UNE, 735.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00° 03' EAST, PARALLEL WITH THE EAST UNE OF SAID NORTHWEST QUARTER SECTION, 1246,35 FEET TO THE SOUTH LINE OF KETIIEMAN LANE (100 FEET WIDE); THENCE ALONG SAID SOUTH LINE, NORTH 89° 09' 30" WEST, 546.33 FEET TO THE SOUTHERLY PRO)ECTTON OF THE WEST LINE OF LOT 10 OF THE TAYLOR TRACT AS FILED IN VOL. 3 OF MAPS AND PLATS, PAGE 47, SAN JOAQUIN COUNTY RECORDS; THENCE RUNNING PARALLEL WITH SAID EAST UNE OF THE NORTHWEST QUARTER SECTION, SOUTH 0° 03' WEST, 1296.31 FEET TO SAID SOUTH UNE OP THE NORTH HALF OF THE NORTH HALF OF SECTION 15; THENCE ALONG SAID SOUTH LINE, SOUTH 89° 09' 15" EAST, 546,33 TO THE TRUE POINT OF BEGINNING. (4) THAT PORTION CONVEYED TO THE CITY OF LODI BY DEED RECORDED AUGUST 12, 2003 AS INSTRUMENT NCOr-2003-181033, SAN JOAQUIN COUNTY -RECORDS, - PARCEL 2: A PORTION OF PARCEL NINE, PARCEL TEN, PARCEL ELEVEN, PARCEL THIRTEEN AND ALL OF PARCEL TWELVE, AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO. 96052704, SAN JOAQUIN COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: First American 71de Page 9 of 21 Order Number 0192-5663216 Pape Number: 10 COMMENCING AT A BOLT MARKING THE CENTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, ALSO BEING POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD; THENCE SOUTH 00° 00' 33" EAST, 26.00 FEET ALONG THE NORTH -SOUTH QUARTER (N -S 1/4) SECTION LINE OF SAID SECTION 15; THENCE THE FOLLOWING FIFTEEN (150 COURSES: 1) SOUTH 89° 57' 53" WEST, 439.30 FEET; 2) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 51' 28" AND AN ARC LENGTH OF 463.04 FEET; 3) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING SOUTH 25° 49' 21" WEST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 00° 35' 14" AND AN ARC LENGTH OF 9.98 FEET; 4) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 25° 14' 07 WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 95° 26' 10" AND AN ARC LENGTH OF 39.98 FEET 5) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 70° 12' 03" EAST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 12' 20" AND AN ARC LENGTH OF 3.50 FEET; 6) NORTH 70° 24' 23" WEST, 50 FEET; 7) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL LINE BEARING NORTH 70° 24' 23" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 90° 16' 50" AND AN ARC LENGTH OF 37.82 FEET; 8) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTH FROM A RADIAL LINE BEARING SOUTH 19° 18' 47" WEST, HAVING A RADIUS OF 966,00 FEET, A CENTRAL ANGLE OF 36° 47' 59" AND AN ARC LENGTH OF 620.44 FEET; 9) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL UNE BEARING SOUTH 1.7° 29' 12" EAST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 45' 34" AND AN ARC LENGTH OF 38.86 FEET; 10) SOUTH 69° 45' 14" WEST, 50.00 FEET; 11) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHWEST FRONT A RADIAL LINE BEARING SOUTH 69° 45' 14" WEST, HAVING A RADIUS OF 975.00 FEET, A CENTRAL ANGLE OF 00° 27' 35" AND AN ARC LENGTH OF 7.82 FEET; 12) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHWEST FROM A RADIAL UNE BEARING SOUTH 69° 17' 39" WEST, HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 92° 43' 09" AND AN ARC LENGTH OF 38.84 FEET; 13) ALONG AN ARC OF A TANGENT COMPOUND CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 23° 25' 30" EAST, HAVING A RADIUS OF 974.00 FEET, A CENTRAL ANGLE OF 02° 30' 06" AND AN ARC LENGTH OF 42.53 FEET; 14) ALONG AN ARC OF A TANGENT REVERSE CURVE CONCAVE TO THE NORTHWEST FROM A RADIAL UNE BEARING NORTH 25° 55' 36" WEST, HAVING A RADIUS OF 1026.00 FEET, A CENTRAL ANGLE OF 25° 53' 29" AND AN ARC LENGTH OF 463.64 FEET; AND F/rstAmeNcan 77de Pape 10 of 21 Order Number: 0102-5663216 Pape Number: 11 15) SOUTH 89° 57' 53" WEST, 456.76 FEETTO THE WEST LINE OF SAID PARCEL NINE, ALSO BEING THE WEST LINE OF SAID SECTION 15; THENCE ALONG SAID WEST LINE, NORTH 00° 02' 07" WEST, 513,00 FEET; THENCE LEAVING LAST SAID LINE, NORTH 89° 57' 53" EAST, 333,88 FEET; THENCE ALONG THE FOLLOWING THIRTEEN (13) COURSES: 1) PARALLEL WITH THE WEST LINE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 90.30 FEET; 2) ALONG AN ARC OF CURVE CONCAVE TO THE NORTH FROM A RADIAL LINE BEARING NORTH 02° 35' 18" WEST, HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 02° 33' 11" AND AN ARC LENGTH OF 13.37 FEET; 3) SOUTH 89° 57' 53" WEST, 8.52 FEET; 4) PARALLEL WITH THE WEST UNE OF SAID SECTION 15, NORTH 00° 02' 07" WEST, 142.00 FEET; 5) NORTH 89° 57' 53" EAST, 39.61 FEET; 6) NORTH 67° 41' 55" EAST, 77.99 FEET; 7) NORTH 22° 18' 05" WEST, 19,47 FEET; 8) NORTH 67° 41' 55" EAST, 142,00 FEET; 9) SOUTH 22° 18' 05" EAST, 137,98 FEET; 10) ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTHEAST FROM A RADIAL LINE BEARING SOUTH 16° 33' 44" EAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 21° 31' 13" AND AN ARC LENGTH OF 187.50; 11) SOUTH 85° 02' 31" EAST, 183,56 FEET; 12) ALONG AN ARC OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 800.00 FEET, A CENTRAL ANGLE OF 04° 59' 36" AND AN ARC LENGTH OF 69,72 FEET; AND 13) NORTH 89° 57' 53" EAST, 291.25 FEET TO THE POINT OF BEGINNING; THENCE FROM SAID POINT OF BEGINNING THE FOLLOWING TWENTY-FIVE (25) COURSES: 1) SOUTH 00° 00' 18" WEST, 37.97 FEET; 2) SOUTH 89° 59' 42" EAST, 37.00 FEET; 3) NORTH 44° 59' 05" EAST, 14.14 FEET; 4) NORTH 89° 59' 53" EAST, 80.00 FEET; 5) SOUTH 45° 00' 55" EAST, 14.15 FEET; 6) NORTH 89° 56' 58" EAST, 52.00 FEET; 7) NORTH 44° 59' 05" EAST, 14.14 FEET; 8) NORTH 89° 57' 53" EAST, 70.01 FEET; 9) SOUTH 00° 00' 18" WEST, 217.23 FEET; 10) SOUTH 76° 571 09" EAST, 41.55 FEET; 11) SOUTH 74° 52' 04" EAST, 51,22 FEET; 12) SOUTH 72° 33' 57" EAST, 51.22 FEET; first American 77de Page 11on! 13) SOUTH 70° 10' 31" 14) SOUTH 67° 44' 49" 15) NORTH 22° 15' 11" 16) SOUTH 65° 16' 22" 17) SOUTH 67° 13' 39" 18) SOUTH 69° 46' 20" 19) NORTH 18° 27' 11" EAST, 55.17 FEET; EAST, 52,00 FEET; EAST, 20.02 FEET; EAST, 64.97 FEET; EAST, 55.34 FEET; EAST, 7.27 FEET; EAST, 100.26 FEET; Order Number: 0193-5663216 Page Number: 12 20) ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHEAST FROM A RADIAL UNE BEARING NORTH 18° 27' 11" EAST, HAVING A RADIUS OF 726.00 FEET, A CENTRAL ANGLE OF 00° 39' 16" AND ARC LENGTH OF 8.29 FEET; 21) NORTH 17° 47' 55" EAST, 52.00 FEET; 22) NORTH 28° 49' 47" WEST, 13.73 FEET; 23) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST FROM A RADIAL UNE BEARING NORTH 75° 27' 29" WEST, HAVING A RADIUS OF 246.00 FEET, A CENTRAL ANGLE OF 14° 32' 13" AND AN ARC LENGTH OF 62.41 FEET; 24) NORTH 00° 00' 18" EAST, 21.15 FEET; AND 25) SOUTH 89° 12' 24 " EAST, 623.56 FEET TO THE EAST LINE OF SAID PARCEL THIRTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT ON THE EAST UNE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, NORTH, 218.70 FEET TO THE SOUTHEAST (SE) CORNER OF PARCEL EIGHTEEN AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED RECORDED MAY 20, 1996 AS INSTRUMENT NO, 96052704, SAN JOAQUIN COUNTY RECORDS; THENCE ALONG THE SOUTH UNE OF SAID PARCEL EIGHTEEN, WEST 310.00 FEET TO THE SOUTHWEST (SW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE WEST UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE EAST LINE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15, NORTH, 180.00 FEET ID THE NORTHWEST (NW) CORNER OF SAID PARCEL EIGHTEEN, THENCE ALONG THE NORTH UNE OF SAID PARCEL EIGHTEEN, PARALLEL WITH THE SOUTH LINE OF SAID PARCEL EIGHTEEN, EAST, 310.00 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL EIGHTEEN, ALSO BEING A POINT ON THE CENTERLINE OF LOWER SACRAMENTO ROAD, ALSO BEING A POINT OF THE EAST UNE OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 15; THENCE ALONG SAD EAST UNE, NORTH, 35738 FEET TO THE NORTHEAST (NE) CORNER OF SAID PARCEL TEN, ALSO BEING A POINT ON THE EAST -WEST QUARTER -QUARTER (E- W 1/4 1/4) SECTION LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 15; THENCE ALONG SAID EAST -WEST QUARTER -QUARTER (E -W 1/4 1/4) SECTION LINE, NORTH 89° 12' 24" WEST, •131.2:58 FEET, MORE OR LESS; TO -A POINT, SOUTH 89° 12' 24" EAST; -1330.-19 FEET FROM THE NORTHWEST (NW) CORNER OF SAID PARCEL TEN; THENCE LEAVING SAID UNE, SOUTH 00° 00' 18" WEST, 648.43 FEET TO THE POINT OF BEGINNING, BEING PARCEL 5 OF LOT UNE ADJUSTMENT 09-R- 03, RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002139, SAN JOAQUIN COUNTY RECORDS. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010.002141, SAN JOAQUIN COUNTY RECORDS, First ArneHcan Tide Page 12 of 21 Order Number: 0192.563216 Pette Number: 13 PARCEL 3: A PORTION OF THE SOUTHERLY ONE-HALF OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; THENCE NORTH, ALONG THE EAST UNE OF SAID NORTHWEST QUARTER, A DISTANCE OF 784 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED LAND; THENCE NORTH ALONG NE EAST UNE OF SAID NORTHWEST QUARTER, A DISTANCE OF 180 FEET; THENCE DUE WEST A DISTANCE OF 310 FEET; THENCE DUE SOUTH A DISTANCE OF 180 FEET; THENCE EAST, 310 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM ALL OIL, GAS OR MINERAL RIGHTS BELOW SIX HUNDRED FEET (600') OF THE SURFACE OF THE PROPERTY, WITH NO RIGHT OF SURFACE ENTRY, AS RESERVED IN THE DEED RECORDED JANUARY 11, 2010 AS INSTRUMENT NO. 2010-002141, SAN JOAQUIN COUNTY RECORDS. APN: 058-030-090-000 (Affects Parcel 1), 058-030-160-000 (Affects Parcel 2) and 058-030-040-000 (Parcel 3) Hat American 71de Page 13 of 21 rz JO 07 aNd pia ileoPowY4sild YAP 12140114.411?SaffINT PUI1,00.yriS rit,ett - • flat, !ii \tt: 11 —yr+ - - i 4 , 1 (ft) b MI kr 7,..1••• • , la i I le 1 2 • - ti fr' ... • •••V r,Yq- :.1 .....1. icihr.:.0:7...c1.711 1 d ui W? I [ Wii 4. I" 7 1" ..... i .R.ICAAP4FIvni 1,1 IqU11N�8d PTLOPAlITO !AugunN J,1111J0 • '; Development; Developer: Engineer Date: ENGINEERING Engineering Fee Inspection Fee Gateway North, Unit No, 1 FCB Homes MCR Engineering 9/25/18 Engineering Fee Paid Improvement Agreement Fee ENGINEERING SUBTOTAL STREET SYSTEM Fees: Storni Water Inspection Fees (Charge for 1 year Inspection) Charges for work by City Forces: Seal Coat STREET SYSTEM SUBTOTAL SEWER SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe Installation TV Inspection for Project Acceptance SEWER SYSTEM SUBTOTAL STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe installation TV Inspection for Protect Acceptance (5% of $100,000) (3,5% of $200,000) (2.5% of $2,428,100) (4% of $250,000) (3.5% or $750,000) (3% of $1,728,100) P W03 BILLING SCHEDULE ENGFEE ENGFEE ENGFEE ENGINS ENGINS ENGINS ENGFEE ENGFEE 1 LS @ $ 2,047.00 WKOTPW 140,313 SF @ $ PW03 3,785 LF @ $ PWD3 3,785 LF @ $ (1701.8525) 2,490 LF @ $ (1701.6526) 2,490 LF @ $ STORM DRAIN SYSTEM SUBTOTAL gIECJH!CAL SYSTEM To be billed separately by Electric Utility Department TOTAL AMOUNT OF BILLING SCHEDULE Reimbursement Agraement.2007.52 058-030-16 (old APN 058-030-03) 18 15 Acres @ $5,735.99/Acre 056-030-16 (old APN 058-030-05) 3.90 Acres @ $4,832,08/Acre 050-030-04 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL Pending Reimbursement RA 1801 In accordance with LMC Section 17.62.060 Gross Acreage: No, of Units; EXHIBIT B 19.29 98 Construction cost $2,728,100,00 DEVELOPER COST $5,000,00 $7,000.00 $60,702,50 $10,000,00 $26,250,00 $51,043.00 $2,211.00 CREDITS $ 119,548.00 $163,006 50 $ 119,548 00 $2,047,00 0.08 511,225.04 $13,272,04 1.50 $5,677.50 150 $5,677.50 $11, 355-00 1.50 $3,735.00 1.50 $3,735.00 87,470.00 $195,103 54 $104,108.22 $18,845.11 $14,684 54 5213,193.41 $818,087.45 Total Fee 51,031,260.86 $0.00 $0,00 8119,548.00 Clly of Lodi Publics Works Department CAST ESTIMATE FOR IMPROVEMENT SECURITY Developrnenl Galoway North, U00 No, 1 Developor FGB Homes Englneor MCR Englneedn9 Acres: 10 20 DOIO: 010/15 L01s: 00 TOTAL COST0r PROJECT IMPROVEMENTS II 6YCl4N4� f3COrif D COST or CITE` -FUNDED FACILITIES TO BE BUILT 133/DEVELOPER 81101 Dedeth'I550 60.001111 VIA r CO 05 511e Preparation R Grading 1 Sae Plaparalinn, Clearing end Grubbing 10 AC 51,361 00 020,230 00 3 Earthwork 0,000 CV 63 00 510,000 00 3 Lul Grading 08 EA 52.071 00 3202.066 00 4 Baslrl Exravallon 1 LS 5150,000 00 5150,000 00 Y8I Ce 11m1I0YS111Clit 3 A00regnle Bast) 4' doss II k00,013 SF 50 80 0112,250 40 3 Asphall Concrete 25' 140.313 SF 0200 5250,62000 2 Survey Monuments 17 EA 503800 314.070 DO 4 Vertical Curb, Geller. & Sidawnik 760 LF 135 00 527,476.00 $ Roll Typo Curb, Gulley, & SklewOIk 0 524 LF 330 (10 5105,720 lig 0 Sidewalk 37,021 SF 50 00 3302,508.00 2 Curb R01um Incl. Ramp 14 EA 53,451.00 340,314 00 0 Curb Return w/o Ramp 3 EA 31,500 00 54,500 00 0 In -Line Ramp G EA 52,701.00 $10.266 00 10 Concrete Driveway Apron 3 EA 92,071 00 $0,213,00 11 Slroel Lights 30 EA 54,14200 3101,536.00 52 0' Masonry Wall a Piloalur 1,200 LF 0173,00 $217 980 00 83 Signage & Shining 1 LO 515.000 00 511,000 00 14 Erosion & 6e5Imenl Control 08 EA 1200 00 119,600 00 Subtotal 51,619,523 40 B10rni54401.$4008 r0 1 12' Sturm Crain Plpe 510 LF 540 00 524,012.00 2 I5`Slolm Drain Plan 1,002 LF 562 00 502,124 OU 0 10' 510,111 Drain Pipe 133 LF 076.00 110,108 00 4 24' Slonn Drain Pipe 725 LF 100,00 505,250 00 5 30' Slonn Dram Pipe 111 LF 507 OU 510,707 00 B eklo lulu( Gulch Basin 14 EA 52.761 00 330 804,00 7 48" 61o1n Drain Manhole 0 EA 14,14200 537,270 00 0 Connr,6i l0 04/01110 Sloan Oro111 2 EA 30,003 00 513 BOB n0 9 Slut, & Plug 1 EA 51,000 00 31,000 00 Subtotal 5203,590 00 040110r''selyer SY�1! 0 1 0" Sanitary Bowel Pipe 1,624 LF 517 00 $27,808 00 2 8" Sanitary Sewer Pipe 2,101 LF 030.00 004.035 00 3 Sanitary Sewer Manhole 06'1 12 EA 13,451-00 041,412,00 4 010110ry Service will, Clean081 90 EA 1621 00 000,850 00 8 Connool to Existing Sanitary Sower 2 EA 06,603,00 810,006 00 6 Slub 5 Plug 1 EA $1,000 00 51,500 00 Subtotal 5209,514.00 Liilf$flr11 16104 19 525,230 00 6,000 518,000 00 DB $202,950 OD 1 3150,000 00 140 311 0112,250 40 140,313 6280,020 00 17 014,076 00 145 327,475.00 8,524 0105,720.00 37 621 0302,560 00 14 540,314-00 3 34,500,00 6 510,500.00 3 30.213 DU 39 5181,535.00 1,260 3217,900 00 1 015.000 00 08 119,600 00 505/8043 31.010,623.40 510 524,012,00 1,002 562,124 00 133 510,10800 726 585,250 00 111 510.767 00 14 330,054.00 0 537 276,00 2 313,000,09 1 31,000 00 Stthl0f41 S203,670,00 1,024 522660.00 2,161 564,830 00 12 541,412,00 98 500,050.00 2 513,606 00 1 51,000 00 518000/8 5209,514.00 WM,pr 5.001 901 1 0' Water PIpe 210 LF 141 00 58,010 00 210 58,810 00 1 5" Watnr 5i00 3,005 LF 555.00 5210,725 00 3,005 5219,725 00 A, 6' Gale Valve 20 EA 01,857 00 533.140 00 20 533.140 00 4 Fire Hwl,onl Assembly 0 EA 14,14200 333,110 00 0 533,130 00 8 1" Wulor Service w1Meler Box 98 EA 582000 501,144.30 98 581.14406 11. RIewoU (Tnrnpnrury) 1 EA 5512 00 5552 D0 1 5552 00 O 615,009 (Perroanenll 1 EA 51,057 00 01,057 DO 1 $1,657 00 0' 030110441 to Exrslin0 4 EA 06,603 00 527,612 00 4 527,012,00 Subtotal 5405,076 00 Sslbto74f 5405,578,00 T 0101 52 090,612 40 Thal C1n;l,orlgn Cosl-$ulileG4'lo Epglneaifng Itcu Coloulillpn (A UovebNlr Ceslj COn.Slruellen F_nglnneon° 8 Slaking 5 1% 3 As -bull( Pions B Cnni0colione TOTAL C051 FOR ENGINEERING FEE CALCULATION Faithful Pndannance: 100% ur A Labor 8 Malaria's: 100% Of A 32.770,100.00 $2,726,105 c0 rnld 02,606,01210 52,090112140 376,900 12 F2.500.00 A, Totol 52,720,10000 C1101114 Subtotal Slrael Systom • On•Sl(o (0% Enoineew in,0 R AdntInishaliun Tota/ 5/roe( System Subtotal Storm Drain System 15'14 Err*l8C9r5ng 8 A0m101111,nrun Torii S96h,, 0rare System Subtotal Sanitary Sawa, System 10% En51050800 6 AOPria1611elion Total SaniterySewer System 1050 30 00 00.05 50 00 50 00 0 00 0 00 0 00 0,00 0 00 000 0.00 0 CO 0 00 0 00 0 00 0 00 0 00 0 00 S0 00 0 00 0000 S0 00 0 00 0 00 0 00 0 00 0.00 0 00 0 00 000 50 00 0 00 50 00 00,05 90.00 50 00 0 00 0 00 0 00 50.00 0 00 50 00 SD 00 50 OD $0.00 50 00 50 00 00 DO 0 00 50 00 Subtu141 Wafer System 50.00 1015 Engmeerin0 d Adminlslralion 0 00 Total Water System 50 00 B, Tolel to 00 EXHIBIT C NOTE: re .try of Lod/ fs now using the online Rrsrrrante program PINS Advantage. Once you have been awarded e contract you will receive an email from the City's online insurance program requesting you to forward the email to your Insurance provider(s) to submit the required insurance documentation eletlronkally lesesralu:u latah reeeej la trir eirellr: imprnveereilt Auteeee rite Developer shall not commence work under this Agreement until Developer shall have obtained all insurance required under thls exhibit, nor shall Developer allow any contractor of subcontractor to commence work on Developer's contact or subcontract until all similar Insurance required of the contractor or subcontractor shall have bean so obtained, All requirements herein provided shall appear either in the body of the Insurance polices or as endorsement and shall specifically bind the insurance carrier. Developer shall procure and maintain during the life of this Agreement ouch Insurance as el,ell insure City, it's elected and appointed boards, commissions, officer, agents, employees and volunteers, 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 Protect or the Project property, Including any public streets or easements, from Developers' or any contractors' or subcontractors' operations hereunder, whether such operations be by Developer or any contractor of subcontractor or by anyone directly or indirectly employed by either Developer or any contractor of subcontractor, and the amount of such insurance Shall be as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be al least as broad as: 1. Commercial General Ltalbitlty (CGL): Insurance Services Office Form CG 00 01 covering CGL on an 'occurrence" basis, including products and completed operations, property damage, bodily injury end personal & advertisin0 Injury with limits no less Ihen $6,000,000 per occurrence. it a general aggregate limit applies, either the general aggregate limit shall apply separately to ihls project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit, 2 Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Developer hoe no owned autos, then hired, and non - owned autos with limit no less than $5,000,000 per accident for bodily Injury end property damage. 3 Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily Injury or disease 4. Professional Liability, For any consultant or other professional who will engineer or design the Public Improvements, liability Insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such Insurance shell be endorsed to Include contractual liability. Other Ipsuranoe Provisions: (a) Additional Named Insured Stotuae The City of Lodl, its elected and appointed boards, commieslons, officers, agents, employees, and volunteers ere to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations perforated by or on behalf of the Developer Including materials, parts, or equipment furnished In connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Developer's Insurance (at least as broad as 150 Form CG 20 10 11 85 or If not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 If a later edition Is used (b) Pdreary and Non -Contributory Insurance Endorsemooe The limits of insurance caverns required may be satisfied by a combination of primary and umbrella or excess Insurance, For any claims related to this contract, thu Developer's insurance coverage shell be primary coverage at least as broad asI50 CG 20 01 04 13.as respects the Entity, its officers, officials, employees, and vahmteerS,_Aoy Insurance or self-Ingurenoe malntain_ed.by the Entity, its officers, officials, employees, or volunteers shall be excess of the Developer's Insurance and shall not contribute with it. (c) Waiver of Subroaatlon Developer hereby grants to City of Lodl a waiver of any right to subrogation which any insurer of said Developer may acquire against the City of Lodl by virtue of the payment of any loss under such insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiver of eubragation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the Insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above; 221 West Plne Street, Lodi, California, 05240; (2) The Insurance certificate must state, on its face or as an endorsement, a description of the protect that It is insuring. (d) sevki " xi9y 'a jnx x-" 1 Rask :ev, 9/202018 (9) (h) 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 company's liability under the Developers commercial general liability and automobile (lability policies. N�lic�of Cenceltatton or Chanes In CovsLacQ Endorsement Thls policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction In coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Coni 1 ty of Covejage 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 certlflcate(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. 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.). Failure to Comply If Developer fells or refuses to obtain and maintain the required Insurance, or falls to provide proof of coverage, the City may obtain the Insurance. Developer shall reimburse the Clty 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) 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 breech. 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, Verification Of Cover:ae Developer shall furnish the City with a copy of the policy declaration end endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause, All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Developer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time, Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date, (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Developer to provide proof of ability to pay losses and related investigations, claim administration, and defense expenees within the retention. The policy language shall provide, or be endorsed to provide, that the self -Insured retention may be satisfied by either the named Insured or City, (j) Insurance LIrnta The limits of Insurance described herein shall not limit the (lability of the Developer and Developer's officers, employees, agents, representatives, contractors or subcontractor, Developer's obligation to defend, Indemnify and hold the Clty and Its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement In the Agreement for Developer to procure and maintain a policy of Insurance. (k) Suboontrao1sr Developer shall require and verify that all contractor and subcontractor maintain insurance meeting all the requirements stated herein, and Developer shall ensure that Clty Is an additional insured on Insurance required from contractors and subcontractors, (1) Quallfi9¢ Inaurerfll All Insurance required by the terms of this Agreement must be provided by insurers licensed to do business In the Stets of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the Clty, Non -admitted surplus lines carriers may be accepted provided they are Included on the most recent list of California eligible surplus lines Insurers (LESU Ilst) and otherwise meet Clty requirements. (m) Completed operations Endgtsamaftt For three years after comptetion of the project, a certificate of Insurance with a Completed Operations Endorsement, CG 20 37 07 04, Will tie provided to the Cit;,/of Lodi: Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to Include contractual liability. r. Page 2 l of 2 pages 1 Risk: rev. 9/202018 &NH Jennifer Ferraiolo From: Jennifer Ferraiolo Sent: Monday, April 15, 2019 3:07 PM To: Matthew Wm. Nelson Cc: Steve Schwabauer; Janice Magdich; Charles Swimley; 'JWarner@BrowmanDevelopment.com'; City Council; Andrew Keys Subject: RE: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company Attachments: 061118 Letter to Mayor and City Council.pdf Thank you for your email. It was received by the City Council and forwarded to the City Manager's Office and Public Works Department for information, response, and/or handling. In addition, your correspondence will be provided to Council as a Blue Sheet item for the April 17 City Council meeting. Jennifer M. Ferraiolo, MMC City Clerk P.O. Box 3006 Lodi, CA 95241-1910 (209) 333-6702 (209) 333-6807 FAX From: Matthew Wm. Nelson [mailto:Matthew.Nelson@GreshamSavage.com] Sent: Monday, April 15, 2019 2:41 PM To: Jennifer Ferraiolo <jferraiolo@lodi.gov> Cc: Steve Schwabauer <sschwabauer@lodi.gov>; Janice Magdich <jmagdich@lodi.gov>; Charles Swimley <Cswimley@lodi.gov>; 'JWarner@BrowmanDevelopment.com' <JWarner@BrowmanDevelopment.com> Subject: RE: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company The following correspondence was inadvertently omitted as an attachment to my correspondence of April 8, 2019. Please provide to the City Council prior to the Wednesday, April 17, 2019 hearing. Thank you for your time. From: Janet Kuhr Sent: Monday, April 08, 2019 3:41 PM To: 'Cityclerk@lodi.gov' Cc: 'sschwabauer@lodi.gov'; 'jmagdich@lodi.gov'; 'Cswimley@lodi.gov'; 'JWarner@BrowmanDevelopment.com' Subject: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 - Blossom Land Company SENT ON BEHALF OF MATTHEW WM. NELSON: Please see attached letter. Matthew Wm. Nelson Shareholder (* admitted in both California and Nevada) 1 Gresham Savage Nolan & Tilden, PC 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408-4205 Office: (909) 890-4499 Ext. 1812 Fax: (909) 890-0687 www.GreshamSavage.com ma tthew . nelson Cag res h a m sa vag e . co m 1. Privileged and Confidential Communication. The information contained in this email and any attachments may be confidential or subject to the attorney client privilege or attorney work product doctrine. If you are not the intended recipient of this communication, you may not use, disclose, print, copy or disseminate the same. If you have received this in error, please notify the sender and destroy all copies of this message. 2. Notice re Tax Advice. Any tax advice contained in this email, including any attachments, is not intended or written to be used, and cannot be used, by you or any other recipient for the purpose of (a) avoiding penalties that may otherwise be imposed by the IRS, or (b) supporting, promoting, marketing, or recommending any transaction or matter to any third party. 3. Transmission of Viruses. Although this communication, and any attached documents or files, are believed to be free of any virus or other defect, it is the responsibility of the recipient to ensure that it is virus free, and the sender does not accept any responsibility for any loss or damage arising in any way from its use. 4. Security of Email. Electronic mail is sent over the public internet and may not be secure. Thus, we cannot guarantee the privacy or confidentiality of such information. 2 555 12th Street, Suite 1500 Oakland, California 94607 tel (510) 808-2000 fax (510) 444-1108 www.meyersnave,com meyers nave June 11, 2018 Via E-mail and U.S. Mail Honorable Mayor Alan Nakanishi and Members of the Lodi City Council P.O. Box 3006 Lodi, CA 95241-1910 citycouncil@lodi.gov Re: Lodi Shopping Center (Sunwest Village) Reimbursement Agreement RA -18-01 Shaye Diveley Attorney at Law sdiveley@meyersnave.com Dear Mayor Nakanishi and Members of the City of Council: Brownian Development Company, Inc. ("BDC") requests an immediate hearing on the City Council's consideration of the Lodi Shopping Center (Sunwest Village) Reimbursement Agreement RA -18-01 ("Reimbursement Agreement"). BDC, developer of the Sunwest Village Shopping Center, submitted an application to the City of Lodi to initiate a reimbursement agreement on June 19, 2017. The community has already received the benefits of BDC's installation of streets, storm drain and wastewater facilities, and the City Council accepted the improvements on October 19, 2016. Accordingly, BDC is entitled to reimbursement under Lodi Municipal Code Section 17.62. The Reimbursement Agreement was first scheduled for public hearing on April 18, 2018, and then for May 16, 2018, The matter was then taken off calendar, apparently at the request of a May 10, 2018, letter submitted by Lodi-LSR Properties LLC ("Lodi-LSR") objecting to the agreement ("Objection Letter").' As addressed below, there is absolutely no merit to these objections—Lodi-LSR simply does not want to pay its fair share of the improvement costs and BDC's Reimbursement Agreement is being held hostage as a result. BDC secured an engineering firm selected by the City to calculate the proportional shares and these calculations were confirmed by city staff to fully comply with state and local laws. Indeed, city staff recommended approval of the Reimbursement Agreement last month and ' BDC was not provided with a copy of the Objection Letter until May 17, 2018, despite the fact that its public hearing was taken off calendar apparently due to the issues raised in it. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO June 11, 2018 Page 2 there is no rationale for the continued delay. Rather, it appears that BDC has been inexplicably singled out for disparate treatment. This makes no sense given BDC's longstanding commitment to the City, the benefits already conferred and staff acknowledgement that the Reimbursement Agreement is consistent with applicable laws and city practices. Accordingly,13DC respectfully requests that the City Council set the Reimbursement Agreement for public bearing at its next meeting on June 20, 2018 or, at the latest on July 18, 2018. BDC is not available in August and is entitled to a prompt hearing on the Reimbursement Agreement. The Engineering Firm Selected by the City Correctly Calculated the Proportional Share of Each Parcel Benefitting from the Improvements The Objection Letter submitted by Lodi-LSR argues that the calculations conducted by SNG & Associates, an engineering firm selected by the City, for the Reimbursement Agreement fail to comply with the Municipal Code. Lodi-LSR's argument is a self-serving attempt to shortchange BDC and the other parties to the Reimbursement Agreement for the improvements that have already been installed to the benefit of development in the area and to the benefit of Lodi-LSR directly. Lodi-LSR claims that reimbursement of a proportional share of improvement costs based on the benefits received by each parcel is not permitted under Lodi Municipal Code Section 17.62.020. This "miscalculation" claim is based on a selective misquotation of the Municipal Code that actually leaves out the relevant provision applicable to the Reimbursement Agreement. Section 17.62.020 states in full (with emphasis added): 17.62.020 - Improvements to be reimbursed. A. The cost of the following improvements shall be reimbursed from the appropriate benefitting parcels. The terms of the reimbursement shall comply with Chapter 15.64. 1. Oversize water mains and major crossings required per Chapter 13.08; 2. Oversize sewers and storm drains required per Chapter 13.12; 3. Excess width street construction and right-of-way required per Chapter 15.44 and 17.50.030; B. The cost of other improvements which benefit other property or would be required of that property upon development shall be reimbursed in compliance with this article. The Objection Letter claims that under Section 17.62.020(A), BDC is only entitled to reimbursement for "oversized" or "excess" improvements. However, Section 17.62.020(A) clearly only applies to reimbursement of development impact fees (under "Chapter 15.64") A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO June 11, 2018 Page 3 for such improvements. Section 17.62.020(B) provides that "[t]he costs of other improvements which benefit the property or would be required of that property" must be reimbursed in compliance with the ordinance. Under the clear wording of the ordinance, BDC is entitled to reimbursement of the costs it expended on improvements that benefitted Lodi-LSR and the other property holders. It is also worthwhile to note that this standard is consistent with exactly how the City has approved reimbursement agreements in the past, including Lodi-LSR's own Rose Gate project. Moreover, even if the provisions related to development impact fees would apply, Municipal Code Section 15.64.010(D) provides "the city council (by resolution) has the authority and the requirement to set forth the fees, benefit and impact areas, specific improvements, and the estimated cost and reasonable relationship between the fee and the new development." This means that the City Council has not only the power, but the obligation, to ensure that fees collected for improvements bear a "reasonable relationship" to the benefits received. In addition, BDC's conditions of approval for the shopping center project included the condition that the City would participate in improvements for master plan storm drain facilities and lines, water mains and other lines, and provide BDC with reimbursement per Municipal Code Section 16.40, As a result, the City is required to provide such reimbursement to BDC. Consistent with the public policy behind such agreements, the City has applied a proportional share approach in several reimbursement agreements, including one—Reimbursement Agreement No. RA -16- 01 --that was approved for Lodi-LSR's own Rose Gate development in March 2017 and was also prepared by SNG & Associates. Indeed, state law requires that BDC must be reimbursed for the expense of constructing supplemental improvements for the benefit of later developments and adjacent properties. (Govt. Code § 66486,) Applying Lodi-LSR's interpretation of Section 17.62.020 would turn the entire reimbursement agreement program on its head. The City is not permitted to ignore these rules to deprive BDC of its mandatory right to reimbursement and to unjustly enrich Lodi-LSR, unless the City wants to assume Lodi-LSR's reimbursement obligation pursuant to Government Code Section 66486. Given that Lodi-LSR's argument is based on a fundamental misstatement of the mandatory reimbursement requirement under state and local law, the rest of its "miscalculation" claims fall by the wayside.2 The most blatant example of Lodi-LSR's attempt to avoid paying its fair share is its challenge to BDC's reimbursement for segment two of the new sewer improvements. Segment two involved the relocation of existing industrial sewer lines on Lodi-LSR's property to a different site, which allows for Lodi-LSR to build homes on 18 sites that were otherwise undevelopable, after Lodi-LSR compensates the City for the 2 Nonetheless, BDC did take the opportunity to address each of these miscalculation claims in a separate letter to Mr. Schwabauer. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO June 11, 2018 Page 4 abandonment of the sewer easement.3 BDC paid the entire amount for this relocation (less the cost of the pipe materials, which were paid by the City) without receiving any benefit, and is entitled to recoup its costs in excess of what it would have spent on the sewer connection for the shopping center. In response to the Objection Letter, BDC did take the opportunity to review again SNG & Associates' calculations for. the Reimbursement Agreement and identified several costs that were omitted from the original report that would statutorily require reimbursement. For example, in effort to make compromises, BDC did not originally seek reimbursement for the statutorily provided legal descriptions, mapping and legal documentation for land dedications, engineering work, permit fees, and city plan check fees on, among other things, the Westgate dedication, land for the basin, and Kettleman Lane improvements, which are all otherwise statutorily reimbursable. BDC previously sent an email to Stephen Schwabauer on May 16, 2018, 'requesting the foregoing additional costs be incorporated into the SNG & Associates report, and then also submitted the attached letter to Charles Swimley on June 4, 2018, that also outlines these additional, statutorily required costs, as well as confirms that the other minor changes requested by city staff were incorporated into the revised report from SNG & Associates. In addition to the foregoing, BDC will also seek interest as permitted under state and local law from the time of the acceptance of the improvements. The Reimbursement Agreement Application Is Timely The Objection Letter also claims that the Reimbursement Agreement is untimely. Again, this is an absurd and self-serving argument aimed at improperly depriving BDC of the same rights and benefits enjoyed by other developers, including Lodi-LSR. Lodi Municipal Code Section 17.62.040 provides that "[a]ll applications for reimbursement shall be filed no later than one year after the acceptance of the improvements by the city." Here, the City Council accepted the improvements on October 19, 2016, and BDC submitted an application to the City for the Reimbursement Agreement on June 19, 2017. This is less than the one-year time period specified by Section 17.62.040. Yet, Lodi-LSR claims that the City had to determine the application to be complete within one year of the acceptance of the improvements to be timely under Section 17.62.040. The Ordinance contains no such requirement. Indeed, such a requirement would be patently unfair, as BDC has no control over city staff's review of the Reimbursement Agreement application. While it is true that Section 17.62.050 provides guidance for the City to prepare a reimbursement agreement within 60 days of receipt of the completed application and for the City Council to conduct a hearing within 90 days of receipt of the completed application, there are no remedies specified if these deadlines are not met. Clearly, BDC should not be responsible for the City's failure to meet the foregoing deadlines in its efforts to fairly allocate the reimbursable costs. Moreover, the Reimbursement Agreement was particularly 3 As a reminder, the City cannot give Lodi-LSR the easement without adequate compensation to the City as it would be an improper gift of public funds. (Cal. Const., art. XVI, § 6.) A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO June 11, 2018 Page 5 complex with many components and different areas of benefits. SNG & Associates and BDC had several meetings with the city staff to resolve questions and to provide additional information to ensure the Reimbursement Agreement complied with all requirements and was fair and equitable for all involved. Lodi-LSR urges the City Council to treat city staff's careful review of the Reimbursement Agreement and the supporting analysis as a de facto denial, forever depriving BDC of its mandatory right to reimbursement from developers, including Lodi-LSR, that have benefitted from the improvements provided by BDC. To be clear, BDC has already constructed and paid for the improvements at issue in the Reimbursement Agreement. BDC has an investment -backed expectation of and a legitimate claim of entitlement to the reimbursement of those costs. Changing the rules this late in the game, after the City and Lodi-LSR have already received the benefits of BDC's improvements, would be unprecedented. This would inexplicably single out BDC for disparate treatment and deprive it of due process and equal protection under the law. This argument must be rejected. BDC is proud of its role in the Lodi community as one of the largest commercial and retail landholder and an economic driver for the region. BDC seeks only fair and consistent treatment from the City, including the prompt scheduling of a public hearing on the Reimbursement Agreement. BDC appreciates the City Council's consideration of this important matter and looks forward to a long and continued shared relationship with the City and the City Council. Sincerely yours, Shaye Dive y c: Stephen Schwabauer, City Manager Charles Swimley Jr., Public Works Director Enclosure 2973328.3 A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO June 4, 2018 Charles E. Swimley Jr. Public Works Director City of Lodi BOC BROWMAN DEVELOPMENT COMPANY, INC. Development L -i• inq o Management Dear Mr. Swimley, Below is a summary of the changes that the city requested from SNG & Associates after our meeting on 5/4/18. These changes have been incorporated into the enclosed revised report. In addition, through further review, we found modifications that we believe require reimbursement. We have summarized those additional items below. City Requested Chanes: • 1. Page 5 -- Table 1.1: corrected typo for unit cost of Backfill Planters line item ($3,750 LS). [This was a typo, and it has no impact on Total Costs] 2. Clarification about IW Relocation: a. Sean Nathan informed us that the 30" Industrial Wastewater line was not installed in Sewer Segment 3 Therefore, I have corrected the allocation of the reimbursement credit between Segment 2 and Segment 3 beneficiaries on Table 2.1. b. PageI0, 1 <nhle 2.i: Line Item 19 - Segment 2 credit for pipe material cost is changed from $151,657 to $192,410, and Segment 3 credit is reduced from $101,105 to $60,353. (Also, a new footnote was added to bottom of Page 10 to clarify how the allocation of the pipe material cost reimbursement was allocated between Segment 2 and Segment 3.) Table 7.3 updated accordingly to allocate Sewer flelrnbursernents for Area of Benefit parcels • Parcel 1- Segment 3 Share of Cost changed from $87,284 to $103,638. (Total changed to $219,573.) • Parcel 2 -- Segment 3 Cost changed from $99 to $118. (Total changed to $249.) • Parcel 3 - (BDC parcel) Segment 3 changed from $92,792 to $110,178. (Total changed to $245,431.) • Parcel 4 - Segment 2 Share changed from $362,584 to $328,803. Segment 3 share changed from $37,329 to $44,323. (Total changed to $373,126.) • Parcel 7 - Segment 2 cost changed from $74,819 to $67,848: (Total cost changed to $67,848.) 1556 PARKSIDE DRIVE, WALNUT CREEK, CA 94596-3556 • (925) 588-2200 • FAX: (925) 588-2230 3. Steve Pecin correction re: Table 2.2b typo: a. Page 12: as noted in Steve Pechin's comments, BDC's parcel's imputed share of cost for relocation of Segment 2 sewer lines was incorrectly reported as 12% in Table 2.2b: proportionate share is actually 10.39%. (Correction made to Table 2.2b and Table 2.3.) 4. Page 27 -- Reimbursement Cost Summary: Table 4.1 has been updated to incorporate changes to Sewer Cost Allocation, (which also changes Total Reimbursement Cost Column too.) a. Pape 29 - Table 4.3: Total Reimbursement Application Fee, Engineering Design Cost, Plan Check and Inspection Fee is unchanged. However, I have changed the allocation of the applicable fees on Table 4.3 to be proportionate based on Construction Cost (instead of Construction + Basin Land Cost.) Engineering Design Cost, Plan Check Fee, and Inspection Fee calculation excludes the Basin land cost, so distribution of these costs should exclude land costs too; this change Impacts every parcel in the Area of Benefit, and I have updated Table 4.3 (and the Exhibit "C" tables on pages 75,76, and 77) accordingly. 5. Exhibit C Reimbursement Agreement RA 1801: The above changes have been reflected in the updated Exhibit "C" Summary of Area of Benefit. Total Reimbursement from Area of Benefit excluding BDC and Elliot Homes parcels changed from $3,050,817 to $3,060,138. Proposed Summary of Additional Changes (not incorporated into report): 1. Westgate Street Right of Way (15.44 Reimbursement for Excess Street Width) — Add to Section 1 of the Area of Benefit Engineer Report the additional Right of Way dedicated from the Sunwest Shopping Center for the construction of Westgate. 23,382.29 Square Feet of Right of Way to be reimbursed. See Attached Map. Land Value of $8.83 per PSA with Walmart total reimbursement for Right of Way $206,465.62. 2. Add Basin Land cost back to appraised value $1,200,000. Applicants felt rushed and pressured into making a compromise on 3/7/18 to ensure original report was accepted by staff to hold meetings on 4/4/18 and 4/18/48. 3. Add back the below. Applicants were trying to make compromises to ensure a fair and balanced reimbursement agreement, but the below costs are real costs that are attributed to land and easement dedications. For example, the amount of engineering work to create legal descriptions, mapping, and legal documentation to dedicate the land for the basin is a real cost that should be borne by all properties benefiting from such improvements. a. Engineering overhead of 10% on: i. Land cost (basin & Westgate dedication) ii. SJCOG dedication iii. Sewer Easements b. City Plan Check Fees i. Land cost (basin & Westgate dedication) ii. SJCOG dedication iii. Sewer Easements 4. Add the following Kettleman improvements to the Section 1 Westgate Improvements. a. Turn pockets b. Kettleman Median concrete improvements c. Kettleman Landscape Improvements These improvements are vital to the traffic impacts and movements into and on Westgate. They should have been Included into the estimates for Westgate because without these improvements Westgate would not function. We request to review the above items with SNG & Associates, to incorporate into the final study prior to acceptance of the resolution. Aaron Zuzack Director of Construction .10L JJA I. 1.1, f• ‘,(.73.7x. no. /6 /5 2004-222482 CITY OF LODI N00'00.26'r 50.00' DOC.N0.2007- 156632 -,, $ TA rr or - C1 CALIFORNIA -- ---- ------ ----- --•••- 80.00' lo 4-, SEE DETAIL STATE OF Cillif9Rt•di•A - 0. 1,489.1i '58'W PaN8/1.1n5"110)--- .3620 0.1?. 118 f I, J 7-9-710'—(4)— C Tc 014 ): I F .NcAS8,4R9TL,A,11,FT110E.,;1?8°AtiviA C2 (-41° P oE11:A=Ii'4 40,.* DOC, NO. 2003-181033 CITY OF L001 tV8V57;23"42)(3.1 11Z29{2)(3) - DOC.NO. 2005-040334 •CITY OF L001--. VARYING MOTH P. LA E. t 54—'" Lu r -J> 141 .5.4 E. cz44:4&1 120inic4 "I A=01643.5.9" R=286.00' fta M L='36l • ' OPAL • • PN 1.38 A t0843' •R.314.00' L=36.90' • DOC:NO. 1 Hc, 2005-040335 1 CI TY OF LODI i;fra • M cd Nc:, I El P v1P • Cr -1 • IA, ANDREW T. REICHMLIK VICTORIA 1.. BOCK AND REICHMUTH FAMILY TRUST DOC. NO. 2010-141691 27,00T DOC.NO. 2005,•040.334 CITY OF 1.001- .., VARYING WIDTH P.O.E. 1 VAN RUITEN RANCH, LTD. PARCEL 4 OF DOC. NO. 2010-002140 • 50.00' P AKFL 2 1.57 ACRES N.ML T- .2;7 1 C221.723)) 17 14.85, 1 44.08' Orn -3 (3) 4!1.A' $d LINE TABLE MARINOLI NO61.4.491: :0REMOVED 000 170.02 23: L.5 S064424'Ve_.. L9:: SNS8. 01.580;58106:::Ii L7 5782940W L1101 t/04 L N0429'38V 1\1054251T - 81.16' LINE L12 L1.3 L14 L15 L16 L17 L18 L19 L20 1.21 2 NI l '40.081V N114008t N00.00.00T N90710'0011' _ .N89'4,5.1_55°W N08179'53-1 r,,,oppopot N0:1'00'00T N90'00'001'1 P190.00.00"W 1400.00.00"E N90060017 NOOVVOQ:E 1:10'00"W 00 I 1.34 L35 ._91ED:ga 4940%5.5"W I6716:38T n6.513'46 YOL.i A 11)4 F GRESHAM SAVAGE April 8, 2019 VIA E-MAIL [Cityclerk@lodi.gov] Matthew.NelsonLGreshamSavage.com • San Bernardino Office (909) 890-4499 • fax (909) 890-9877 Honorable Mayor and City Council City of Lodi P.O. Box 3006 Lodi, California 95241-1910 Re: Improvement Agreement for Gateway North Subdivision, Unit No. 1, Tract 3940 — Blossom Land Company. Dear Honorable Mayor and City Council: This firm represents Walmart, Inc. in the above referenced matter. Please accept this correspondence as our response to the presentation and documents provided by Steve Herum, counsel for FCB Homes, at the February 7, 2019 City Council meeting to consider a resolution authorizing the City Manager to execute a Reimbursement Agreement RA -18-01 ("Reimbursement Agreement"), for public improvements constructed with the Lodi Shopping Center. 1. FCB Homes last minute presentation was not made in good faith especially in light of the fact that the Reimbursement Agreement was originally set for April 2018 and has been delayed multiple times since to address FCB Homes' frivolous complaints. First, we would like to address Mr. Herum's tactics at the hearing. Last minute presentations and "document dumps" are rarely, if ever, made in good faith and serve no other purpose than to delay the decision making process. Finally, Mr. Herum's conduct here was especially egregious because the City had already provided his client, FCB Homes, two opportunities (on January 14 and January 23, 2019) to review and comment on the peer reviewed Engineer's Report before finalizing the Staff Report dated February 6, 2019 ("Staff Report"). In fact, at FCB's request, the City had FCB's analysis of its purported discrepancies in the city Reimbursement Agreement reviewed and analyzed by the peer reviewing Engineer, GSC, which the Engineer rejected all of FCB's arguments as baseless and without support. It should be noted • \ vf?I>I\() 550 East Hospitality Lane, Suite 300 • San Bernardino, California 92408 \\ 1)11 0) 550 West C Street, Suite 1810 • San Diego, California 92101 P..IV 1 RSIDI Mission Inn Plaza • Riverside, California 92501 (By Appointment Only) GreshatnSavage.com W2060 -Lodi CA; Store #1789-03--3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 2 that the same opportunity to review and comment was not afforded the developer of the Lodi Shopping Center, Browman Development Company ("BDC") and Walmart. Furthermore, the Staff Report was available on the City's website at approximately 1:00 p.m. on January 31, 2019, more than six days before the hearing, providing Mr. Herum ample opportunity to respond prior to the City Council hearing. Despite these multiple opportunities to provide a substantive response to the Staff Report, Staff recommendations and the Reimbursement Agreement, Mr. Herum waited until the public comment period to present his "case." The "case," however, left much to be desired with the presentation of "evidence" consisting of nothing more than one excerpt from the Government Code and three excerpts from the Lodi Municipal Code, along with a disorganized scattershot oral presentation. No new evidence was provided by Mr. Herum, nor did he present any tangible or coherent legal argument. It is well established California law that at a public hearing, evidence must be presented in a manner that gives the agency the opportunity to respond with countervailing evidence. The City cannot be expected to pore through the documents provided to find something that arguably supports FCB Homes' position. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515). Although the City Council took the conservative approach by continuing the hearing, it is our position that on February 7, the Council would have been legally justified in quickly considering and then rejecting Mr. Herum's "case." At the upcoming continued hearing of April 17, 2019, we fully anticipate that Mr. Herum will again attempt to present last minute "evidence" to cloud the public record and to further delay the approval. If that happens, the City Council can, and should, legally disregard any additional information because Mr. Herum will again have not provided the City with the opportunity to receive and respond to articulated factual issues and legal theories. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1998.) These bad faith tactics should be repudiated and not rewarded with yet another delay. 2. The Application for the Reimbursement was Timely Although Mr. Herum's "case" was extremely thin and lacked legal substance, it appeared he was making two claims. The first was an objection that the application for the Reimbursement Agreement is untimely. This is a self-serving argument aimed at improperly depriving BDC and Walmart of the same rights and benefits enjoyed by other developers, including FCB Homes. Furthermore, this is not a new argument, as W2060 -Lodi CA; Store #1789-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 3 it was previously presented by Mr. Herum in his letter dated May 10, 2018 and responded to by BDC's Counsel on June 11, 2018. Copies of both of those letters are attached. Similarly, the City of Lodi found this argument baseless and initially set this Reimbursement Agreement for hearing recommending approval on October 17, 2018. Restating BDC Counsel's letter, Lodi Municipal Code Section 17.62.040 provides that "[a]11 applications for reimbursement shall be filed no later than one year after the acceptance of the improvements by the city." Here, the City Council accepted the improvements on October 19, 2016, and BDC submitted an application to the City for the Reimbursement Agreement on June 19, 2017. This is less than the one-year time period specified by Section 17.62.040. Yet, FCB Homes claims that the City had to determine the application to be complete within one year of the acceptance of the improvements to be timely under Section 17.62.040. The Ordinance contains no such requirement. Indeed, such a requirement would be patently unfair, as BDC has no control over city staff's review of the Reimbursement Agreement application. To further illustrate the baseless nature of Mr. Herum's claim, his own client did not receive approval of the Rose Gate reimbursement agreement until March 1, 2017, more than 2 and 1/2 years after the City accepted those improvements on June 18, 2014. Certainly Mr. Herum would not suggest that his client receive preferential treatment from the City. Rather, this is a transparent and shortsighted attempt by FCB Homes to avoid paying its fair share of improvements constructed with the Lodi Shopping Center. Further, in our case, it neglects to highlight that FCB is solely responsible for over 12 months or more of delay in getting the Reimbursement Agreement approved and is still delaying the approval today. While it is true that Section 17.62.050 provides guidance for the City to prepare a reimbursement agreement within 60 days of receipt of the completed application and for the City Council to conduct a hearing within 90 days of receipt of the completed application, there are no remedies specified if these deadlines are not met. Clearly, BDC should not be responsible for the City's adherence to the foregoing deadlines in its efforts to fairly allocate the reimbursable costs and deal with over a year of FCB's frivolous claims. Moreover, the Reimbursement Agreement was particularly complex with many components and different areas of benefits at the City's request. BDC had several meetings with the City's third party engineering consultants and City staff to resolve questions and to provide additional information to ensure the Reimbursement Agreement complied with all requirements and was fair and equitable for all involved. There were also four meetings between May and August 20018 with the City jointly attended by BDC and FCB Homes. At no time, however, did FCB Homes reach out to W2060 -Lodi CA; Store #1759-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 4 BDC independent of the City to attempt to reach a mutually acceptable agreement. Based on the foregoing, the application for Reimbursement was timely and is properly before the City Council for approval 3. All costs related to the improvements, direct and indirect, are reimbursable The second argument is that the Reimbursement Agreement can only reimburse for direct construction costs while indirect construction costs, including construction mark up, easement costs, water and air quality compliance costs, agricultural mitigation fees and land costs, are not reimbursable. Other than providing a copy of Government Code section 66419 to the City Council, however, FCB Homes has not provided any legal support for this argument. Furthermore, Section 66419, which is restated in its entirety below, expands the definition of "improvement" to include "street work" and "utilities," but does not make any distinction between the recovery of direct and indirect costs: (a) "Improvement" refers to any street work and utilities to be installed, or agreed to be installed, by the subdivider on the land to be used for public or private streets, highways, ways, and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs as a condition precedent to the approval and acceptance of the final map thereof. (b) "Improvement" also refers to any other specific improvements or types of improvements, the installation of which, either by the subdivider, by public agencies, by private utilities, by any other entity approved by the local agency, or by a combination thereof, is necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan. In fact, an exhaustive review of all California statutes and case law does not reveal any examples that support FCB Home's position. To the contrary, the usage of "improvement" and "streetwork" in the Government Code and other statutes leads to the logical and common sense conclusion that all costs, direct and indirect, are included in the definition. For example, Government Code sections 43420 to 43431 authorizes a city to create a Street Work Revolving Fund to fund "the cost of the work or improvement" for "the establishing, laying out, opening, widening, extending, straightening, constructing, improving or altering of streets, highways, boulevards and public ways." (Government Code §§ 43420 (a), 43421). It is significant that the W2060 -Lodi CA; Store #1789-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 5 term "cost of the work or improvement" is not further compartmentalized into "direct" or "indirect" costs as alleged by FCB Homes. The practical reason for this is the legislature recognizes that "street work" and other improvements involve a broad range of costs from materials, labor, bonds, insurance, dust control and overhead and that it would be nonsensical and counterproductive to further define the term "cost." By avoiding any narrow definition, the intent of the legislature in this Government Code section and in other related use of "improvement," "street work," and other terms was to acknowledge that all costs related to improvements should be funded, bonded or reimbursed as needed. This broad definition of "cost" as it is related to improvements is also supported by case law interpreting performance bonds. As the City Council may know, performance bonds are a type of contract bond that guarantees the satisfactory completion of a construction project and typically protects 100 percent of the contract price. Performance bonds ensure that a contractor will complete a project. If the contractor does not complete the project, the performance bond guarantees against financial loss to the City or project owner. The contract price, which is bonded, will include all costs for the improvement, direct and indirect. FCB was itself reimbursed for costs it claims are now not reimbursable in other Reimbursement Agreements. Herum's argument is made up. The improvements could not be completed without both the materials and labor associated with installation of such materials. In County of Los Angeles v. Margulis (1935) 6 Cal.App.2d 57, the County of Los Angeles sued to recover on a performance bond posted by a subdivider to secure faithful performance of an agreement to improve streets and construct a storm drain. The trial court ruled in favor of the County and on appeal, the Court of Appeal affirmed the judgment, stating: The contract provided for the improvement of certain streets, avenues and alleys and the installation of a storm drain.... Under the contract the county was entitled to have these highways so improved, and this right was of a value equal to the cost of the work. The contract having been breached by a failure to perform, the county was entitled to a sum equal to the cost of the uncompleted portion of the work; ... Under the contract the county was entitled to receive work of a certain value. This work not having been received, the county was entitled to receive in lieu thereof as damages a sum of money equal in value to the uncompleted work which the contract called for, and appellant W2060 -Lodi CA: Store #1739-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 6 as surety was liable under its bond up to the penal sum therein specified. (6 Cal.App.2d at 59-60.) (emphasis added) If FCB Homes is correct as to the limitation of reimbursable improvements to direct costs, likewise performance bonds would only be able to cover the direct costs of the improvements. This leads to an illogical and absurd result of a full range of construction costs that could not be covered by bonds that is not supported by the law, common sense and in practice. The cost of improvement work covered under a performance bond would be the same covered under a reimbursement agreement. As for the reimbursement of the cost of dedicated land, long standing California law holds that there needs to be a nexus between a project condition, including the dedication of land, and the impact of development. (Ayres v. City Council of Los Angeles (1949) 34 Ca1.2d 31, 42) The corollary of this holding is that if a jurisdiction requires the dedication of land that benefits other landowners that is beyond the nexus of the impact of development, then the conditioned party can demand for reimbursement either from the jurisdiction or the benefitted landowners. In the present case, the City of Lodi, through its authority under the Government Code and the Municipal Code has accounted for this extra -nexus land dedication cost in the reimbursement agreement. The City's own Improvement Agreement mandates certain things that the Developer must provide such as full time supervision and compliance with water quality laws, dust control and insurance. If defies Logic that the City could require these items as part of an Improvement Agreement and then later take the position that they are not construction costs. Finally, the Lodi Municipal Code section 17.62.020(A)(3) specially states that "excess width construction and right-of-way" required for off-site improvements and dedications are reimbursable costs. Accordingly, the City has appropriately included all recoverable costs for the subject improvements in Reimbursement Agreement (RA -18-01) and the City Council is legally justified in approving the Reimbursement Agreement that is currently before it. Beyond legal reasons, no developer would ever agree to go first and construct improvements benefitting other properties knowing it would only be reimbursed a small portion of its actual material costs benefitting the other properties. W2060 -Lodi CA; Store 1789-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 7 4. Conclusion The Reimbursement Agreement has been subject to an incredible, and arguably unprecedented, level of scrutiny, detail, peer review and analysis. Staff is to be commended for the time and effort in addressing each and every issue. FCB Homes has been provided multiple opportunities to review and comment and the City has skillfully and thoroughly responded to each of the concerns. No other affected property owner has suggested this Reimbursement Agreement is anything but fair and appropriate. The end result of this long and arduous process is that the pending Reimbursement Agreement is legally adequate, supported by overwhelming evidence and should be approved. If the City Council is considering a denial of the Reimbursement Agreement, this would be problematic on multiple fronts. First, a denial would be arbitrary and capricious and not supported by any facts of evidence. The only opponent, FCB Homes, has made baseless and factually devoid arguments without any legal support against the Reimbursement Agreement and each and every argument have been addressed and countered. Second, a denial would result in the City Council stepping in the shoes of FCB Homes and agreeing to make up the short fall. (Lodi Municipal Code § 17.62.010(B)) If this is the City Council's preference, then BDC and Walmart will make an immediate demand for reimbursement of the shortfall. Not only would this unnecessarily add to the financial liability of the City, the practical effect would be the City would be subsidizing the FCB Homes project with public funds and would require the entire FCB Homes project to be constructed at prevailing wage. Finally, denial of the Reimbursement Agreement result in an inequity and sends the message to other developers that if you are difficult and obstinate enough, then you can avoid paying your fair share in the City of Lodi. No other developer will ever again undertake work that benefits another party, because the City will have endorsed a system that penalizes the first party to develop and unjustly enriches other parties who later develop because they can avoid fair costs that equity dictates should be paid. We trust that the City Council will evaluate all of this information and come to the only factual, legal and equitable conclusion: that the Reimbursement Agreement must be approved. W2060 -Lodi CA; Store #1789-03 -- 3630355.1 Honorable Mayor and City Council City of Lodi April 8, 2019 Page 8 Thank you for your time and consideration. Very truly yours, atthew Wm. Nelson, of GRESHAM SAVAGE NOLAN & TILDEN, A Professional Corporation MWN:jmk Enclosures cc: City Manager City Attorney Public Works Director Browman Development Company W2060 -Lodi CA: Store (1789-03--3630355.1 HERUM CRABTREE SUNTAG Steven A. Herum sherum@herumcrabtree.com May 10, 2018 D. Stephen Schwabauer City Manager City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 Re: Draft Lodi Shopping Center (Sunwest Village) Reimbursement Agreement Dear Mr. Schwabauer: This office represents Lodi-LSR Properties, LLC Lodi-LSR Properties, LLC has retained me to review the proposed reimbursement agreement in favor of Lodi Shopping Center (Sunwest Village) and the accompanying report prepared by Nanda Gottiparthy and Mike O'Connor of SNG & Associates, a San Francisco Bay area engineering firm (SNG Report). Based upon my reading of the SNG Report the draft reimbursement agreement is inconsistent with, conflicts with and does not conform to the City of Lodi ordinance concerning reimbursement. Therefore the draft reimbursement agreement exceeds the power granted by the ordinance to provide reimbursement agreements and amounts to a prejudicial abuse of discretion as a matter of law. While we anticipate the Lodi Shopping Center developer will vigorously disagree with all aspects of this analysis there are substantial foundational and organic problems with the reimbursement plan at this time and these foundational and organic problems must be addressed before the Lodi City Council considers the request. Pivotal to the defective analysis is generally applying a formula unavailable under the Lodi Ordinance. APPLICATION OF WRONG FORMULA BY SNG & ASSOCIATES IN DETERMINING FINANCIAL RESPONSIBILITY OF OTHER PROPERTIES Lodi Municipal Code section 17.62,020.A.3 states in relevant part: 17.62.020 - Improvements to be reimbursed. A. The cost of the following improvements shall be reimbursed from the appropriate benefitting parcels. The terms of the reimbursement shall comply with Chapter 15.64. 5757 PACIFIC AVENUE SUITE 222 STOCKTON, CA 95207 PH 209.472.7700 MODESTO PH 209.525.8444 FX 209.472.7986 APC D. Stephen Schwabauer May 11, 2018 Page 2 of 4 3. Excess width street construction and right-of-way required per Chapter 15.44 and 17.50.030; (Bolding added.) Yet page 4 of the SNG Report states that "[c]osts are allocated to the benefitting parcels based on proportional share of frontage improvements to each of the parcels along Westgate Drive." (Bolding added.) "Proportional share" involves a measurably different context and formula that "excess width". To put a finer point on it, these competing terms supply completely different concepts., This method for determining costs, benefits and the burden of adjacent parcels conflicts with 17.62.020.A.3. The method expressed by Table 1.1, at pages 5 and 6, appears fully inconsistent with the Ordinance rule that only the "excess" is eligible for reimbursement. Table 1.1 set out costs that would be required if there were no other parties and then allocates everyone's pro -rata share. But the scope of the City Ordinance, at least concerning streets, does not appear to authorize a true pro -rata share formula when determining third party reimbursement obligations. Rather the Ordinance focuses exclusively on the "excess" caused by such third parties. This argument applies with equal dignity for reimbursement of water mains (17.62.020.A.1) which limits reimbursement to "oversizing", and sewer and storm drain (17;62.020.A.2) which also uses the term "oversizing". Again Table 1.1 seems to apply a formula assuming this was a joint construction project where each party's proportional contribution to fund infrastructure needed to be determine rather than determining the "excess" or "oversizing" that Sunwest Village was compelled to provide due to third party needs. The treatment of sewer construction reimbursement is equally incoherent with various formulas and assumptions applied without taking into account the Ordinance. The sewer improvement is broken into three "segments": segment one, two and three. Measurably different reimbursement formulas and assumptions are applied to each segment in calculating the reimbursement owed Sunwest Village. The only common thread is that each formula is adjusted in a manner to benefit the Sunwest Village developer by maximizing reimbursement owed to it by other property owners. For instance, Table 2.2a at page 11, concerning segment one sewer improvements, produces the percentage each APN area owes and the calculation relies on land use density or intensity, the zoning classification and the number of acres.2 The formula doesn't define or mention "excess" or "oversizing". Instead it attempts to produce a ' Webster's New Collegiate Dictionary defines "proportional" as "the relation of one part to another or the whole with respect to magnitude, quantity or degree: RATIO" whereas "excess" is defined as "the amount or degree by which one thing or quality exceeds another". To the same extent, "oversize" is defined as "being of more than ordinary size". For our purposes "excess" and "oversize" seem to mean the same thing while also conflicting with the term "proportional". 2 This is a classic and pure "proportion" formulation and does not and is not designed to and cannot identify the "excess" or "oversizing". 2611-002\SAH\368548.docx D. Stephen Schwabauer May 11,2018 Page 3 of 4 "pro -rata" percent. The report's treatment of segment two sewer improvements richly and expressly illustrates the defective analysis: "so the net cost of the relocation of these sewer pipelines is allocated to these parcels in proportion to the area encumbered". (Italics added.) Segment three sewer improvements are then subject to yet a different formula to determine reimbursement responsibilities of third parties. But these three formulas, individually and cumulative, are inconsistent with and exceed the authority granted by the Lodi Municipal Ordinance. The Ordinance is not a pro -rata ordinance. Again at page 8 the report wrongly concludes that insurance and profit fees charged by the developer would have been reduced to 1.8% of Sunwest Village's total onsite development costs. The report assumes Sunwest Village has no fixed costs; that is, but for oversizing obligations its trench would have constructed been only 2% of the trench constructed, would have needed two percent of a backhoe and other equipment and would have cost only 2% of the total cost of constructing the trench. See also page 12. This is absurd. Table 3.2 at page 20, concerning storm drain improvements, reaches the same and equally wrong result. Table 3.2 provides unit costs for aspects of the storm drain system. Unit costs, of course, are irrelevant to determine "oversizing". It then allocates costs according to acreage. This formula is fully unrelated to determining "oversizing" and instead follows an unavailable pro -rata formula. The entire document is contaminated by this flawed analysis. For instance at page 28 the report out and out states: "the fair share division of these fees and design costs is then calculated based on the proportionate share of the total construction costs attributed to each benefiting parcel." (Italics added.) A "fair share division" produces a "pro -rata" contribution, but does not define oversizing. Simply stated: Wrong formula; wrong result. TIMING OF REQUEST FOR REIMBURSEMENT Lodi Municipal Code section 17.62.040.8 states in relevant part: All applications for reimbursement shall be filed no later than one year after the acceptance of the improvements by the city. Factually, Sunwest Village improvements were accepted on October 19, 2016. The draft Reimbursement Agreement states that on June 19, 2017, the Lodi Shopping Center Development Project developer applied to initiate a reimbursement agreement and area of benefit for the installation of certain street, storm drain, and wastewater facilities with the City of Lodi. Section 17.62 requires all applications for reimbursement be filed no later than one year after acceptance of the improvement by the City while Section 17.62.050 provide that within 60 days of receiving a completed application the Public Works Director shall prepare a reimbursement agreement containing certain provisions. Section 17.62.A.5. requires the City Council to conduct a public hearing. 2611-002\SAH\368548.docx D. Stephen Schwabauer May 11, 2018 Page 4 of 4 The hearing shall be conducted within 90 days of receipt of the completed application. In order to satisfy the time requirements of the Lodi Ordinance a developer must not just file or initiate a request for a reimbursement agreement, it must have a fully complete application, as determined by the City Public Works Department, on or before October 19, 2017, in order to be timely filed and in compliance with the Ordinance. Hence the Ordinance provides that the last day to conduct a noticed public hearing for this request for a reimbursement agreement was February 18, 2018. No contemporaneous written information indicating the City Public Works Department found the application fully complete on or before October 19, 2017 or any written information indicating a Lodi City Council properly noticed public hearing was scheduled on or before February 18, 2018. Hence, the time for Sunwest Village to request and receive a reimbursement agreement from the City of Lodi lapsed according to the controlling City of Lodi Ordinance. When presented with this issue, Public Works staff appeared to agree that the time deadlines were not observed. But the Ordinance says what the Ordinance says. The Lodi City staff is not vested with unfettered discretion to either follow or dispense with ordinance requirements. The practice described by the City staff violates fundamental notions of Due Process. REQUEST FOR CITY ACTION My client respectfully asks the City of Lodi to continue the public hearing now scheduled for Tuesday May 15, 2018 to consider Sunwest Village's request for a reimbursement agreement. The draft reimbursement agreement clearly exceeds the authority provided by the Lodi Municipal Code. We believe the appropriate action is for the City staff, including the City Attorney, to carefully review this faulty draft reimbursement agreement against the authority granted by the City Municipal Code. We believe the Municipal Code does not authorize approval of pending reimbursement agreement. Further, we recommend the City require Sunwest Village and the affected property owners meet to resolve differences over requested reimbursements. The superior resolution of this matter involves the affected property owners and developers working collaboratively to resolve the instant dispute. Very truly your STEVEN A. HERUM Attorney -at -Law cc: Client 2611-002\SAH\368548.docx HERUM CRABTREE `,�SUNTAG ATTORNEYS Steven A. Herum sherum@herumcrabtree.com June 18, 2018 Ms. Shaye Diveley Meyers Nave 555 12th Street Suite 1500 Oakland, California 94607 Re: Your letter of June 11, 2018 Dear Ms. Diveley: I have reviewed your letter of June 11. Please understand my client's overarching objective is to reach a mutually agreeable resolution of a dispute over the reimbursement agreement. The letter failed to alter this overarching objective. Given this objective it would be pointless in the extreme to correct the strained arguments and incorrect facts presented in the June 11 letter. The threat presented at the end of the June 11 letter is clearly and unambiguously intended to have a chilling effect on my client's participation in a public process that is integrated into Lodi's approval of a reimbursement agreement. However, at this point in time, our strong preference is to reach an accord on the current reimbursement dispute instead of reaching a conclusion about your client's highly improper SLAPP threat. I look forward to working with you in a collaborative manner to resolve the instance dispute. Very truly your STEVEN A. HERUM Attorney -at -Law SAH:lac cc: Client 5757 PACIFIC AVENUE SUITE 222 STOCKTON, CA 95207 PH 209.472.7700 MODESTO PH 209.525.84442�EEX209447o2.APC meyerslrave JUN 2 (3 2018 smoma Nor .. m 0 .`' " c- ." o�Q� 0 ..... m:Qi ll! o o > o m o `' 0 N -o m O� U