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HomeMy WebLinkAboutAgenda Report - April 6, 2022 C-12CITY OF t CALIFORNIA AGENDA ITEM Co 12 COUNCIL COMMUNICATION AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet North of Century Boulevard) (Benjamin Apartment Complex) MEETING DATE: April 6, 2022 PREPARED BY: Public Works Director RECOMMENDED ACTION: Adopt resolution authorizing City Manager to execute Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet North of Century Boulevard) (Benjamin Apartment Complex). BACKGROUND INFORMATION: C Note LP (Developer) has submitted multiple building permit applications (including No. B2020-2871) to construct an apartment complex on the property located at 2525 West Century Boulevard, as shown on Exhibit A. The public improvements being constructed as part of the Benjamin Apartment Complex are referred to as the "Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet north of Century Boulevard)" and include the installation of street improvements along the portion of Lower Sacramento Road fronting the apartment complex. The apartment complex itself will be comprised of a clubhouse, pool building, and 6 apartment buildings totaling 108 high density residential dwelling units. Developer has requested to execute an improvement agreement to design and construct the public improvements to expedite construction of the on-site improvements. City staff has deemed this a reasonable request and included a condition in the Improvement Agreement requiring that all public improvements be completed prior to final acceptance of the Project. Developer has furnished the City with public improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed project. Development Impact Fees will be collected as part of the building permit process, prior to issuing a certificate of occupancy. Staff recommends authorizing City Manager to execute Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet North of Century Boulevard) (Benjamins Apartment Complex). APPROVED Steve Schwabauer Stephen Schwabauer, City Manager \\cvcfilv02\pubwks$\WP\DEV_SERV\Developments\Residential\Century 2525W\Improvement Agree ment\CC_Benjamins.docx 3/21/2022 Adopt Resolution Authorizing City Manager to Execute Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet North of Century Boulevard) (Benjamin Apartment Complex) April 6, 2022 Page 2 FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable CLV':�—�O Charles E. Swimley, Jr. Public Works Director Prepared by Karissa Kiriu, Associate Civil Engineer CES/KTVK/cd Attachments cc: City Attorney Senior Engineering Technician, Wiman Deputy Public Works Director/City Engineer C Note LP Associate Civil Engineer, Kidu RSC Engineering Exhibit A Lower Sacramento Road Street Improvements Century Blvd to 510 ft North of Century Blvd (Benjamin Apartment Complex) Vicinity Map Gala Dr. L d J � V L' 'a E 0 w c Cameo St. 0 rn T1 I d McIntosh Dr. Azalea Ln. TFD 0 0 D NMI Mayfair St. 2rimrose Dr. w Heather J m Kettleman Ln / Hwy 12 Mayfair Ct. Benjamin Apartment Complex Y Pets% W v y J 8rhati0 a< nMh by � F � Century Blvd. /a m Furkia nr 0 Olive-Av. c m Bernini WI Orrhis C M V a M 0 s as v Leonardo Wy._ .�-. o JLower Sacramento Road I Street Improvements K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\References\CCExhibitA.mxd 165 330 Feet Bellows Wy. I T LL—1 Ra ph GelWy. L_L 660 WHEN RECORDED, RETURN TO: City Clerk City of Lodi 221 West Pine Street Lodi, CA 95240 IMPROVEMENT AGREEMENT for the LOWER SACRAMENTO ROAD STREET IMPROVEMENTS CENTURY BOULEVARD TO 510 FEET NORTH OF CENTURY BOULEVARD (BENJAMIN APARTMENT COMPLEX) APN 058-030-30 THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California municipal corporation, hereinafter referred to as "City", C NOTE LP, a California limited partnership, hereinafter referred to as "Developer," and A. M. STEPHENS CONSTRUCTION CO., INC , a California corporation, hereinafter referred to as "Developer's Contractor." RECITALS: Developer has submitted multiple building permit applications (including No. B2020-2871) for the development of the Benjamin Apartment Complex at 2525 West Century Boulevard, hereinafter called "Development", on the property more particularly described as Parcel 1 in Exhibit A and Exhibit B. Developer is required to construct and complete public improvements as a condition of approval of the building permit application. Developer has presented to the City for approval public improvement plans for the Lower Sacramento Road Street Improvements, hereinafter called "Project," to construct such public improvements. Developer has requested approval of the public improvement plans for the construction and completion of public improvements which are a part of or appurtenant to the Development, 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 the 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. City Council will adopt a resolution authorizing construction and completion of the public improvements on condition that the Developer first enters into and executes this Agreement with the City and meets the requirements of said resolution; and Developer's Contractor is made a party to this Agreement solely to secure the Faithful Performance Bonds and Labor and Materials Bonds referred to in Paragraph 12. Developer's Contractor has no other obligations under this Agreement. This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Titles 15 and 17 of the Lodi City Municipal Code ("LMC"). 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 021 D003, which is on file in the Public Works Department K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022.doc 1 317122 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 issuance of the building permit by the City, it is agreed that the Developer shall deposit with the City the amount of money shown as the "Developer Cost" on Billing Schedule attached hereto as Exhibit C, and by this reference made a part hereof. 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. Televideo inspection of the public storm drain lines. The fee shown on the Billing Schedule is based on the linear footage of public storm drain pipe 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; B. Street seal coat; 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 a six month 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. 4. Development Impact Mitigation Fees Development Impact Mitigation Fees for water, wastewater capacity, storm drain, street improvements, police, fire, parks and recreation, electrical, art in public places, and general City facilities are required for this Development. 5. Reimbursement from Others Developer may be eligible for reimbursement from others for the cost of certain off-site public improvements that benefit other properties. It is Developer's responsibility to request reimbursement and submit the appropriate information per LMC Section 17.62. 6. Work; Time for Commencement and Performance Developer shall, 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 be the sole and final judge as to whether or not good cause has been shown to entitle Developer to an extension. K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022 doe 2 3/7122 8. Record Drawings and Certifications Prior to acceptance of the Project improvements, Developer shall have provided record drawings and certifications as described in the City of Lodi Public Improvement Design Standards. 9. Permits; Compliance with Law Developer shall, at Developer's expense, obtain all necessary permits and licenses for the construction of the improvements described in this Agreement, give all necessary notices, and pay all fees and taxes required by law. 10. Superintendence by Developer Developer shall give personal superintendence to the work of said improvements, or have a competent agent, foreman or superintendent, satisfactory to the Public Works Director, on the work site at all times during construction, with authority to act for Developer. 11. Inspection by City Developer, shall at all times, maintain proper facilities and provide safe access for inspection by City to all parts of the work site. Inspections will be provided during normal working hours of City staff. Developer will be billed for inspections on work performed on weekends, holidays and overtime. Developer shall also pay all additional costs incurred by City for soils and materials testing and/or inspection services, including storm water compliance inspections, required as a part of City inspection activities. 12. Contract Security Concurrently with the execution of this Agreement, Developer's Contractor shall furnish Improvement Security of at least 100 percent of the estimated cost of the public improvements required to be constructed, plus deferred fees and engineering costs of surveying, record drawings and certifications as security for the faithful performance of this Agreement; and an amount equal to at least 100 percent of the above costs, excluding deferred fees, as security for the payment of all persons performing labor and furnishing materials in connection with this Agreement as more fully described in the State Subdivision Map Act. The City has determined these security amounts to be as follows: Faithful Performance: $ 144,200.00 Labor and Materials: $ 144,200.00 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. Hold -Harmless Agreement Developer hereby agrees to, and shall, hold City, its elected and appointed boards, commissions, officers, agents, and employees, harmless from any liability for damage or claims for damage from personal injury, including death, as well as from claims for property damage which may arise from Developer's or Developer's contractors', subcontractors', agents' or employees' operations under this Agreement, whether such operations be by Developer or by any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Developer or any of Developer's contractors or subcontractors. Developer agrees to, and K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022.doc 3 3/7/22 shall, defend City and its elected and appointed boards, commissions, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations; provided as follows: A. That City does not, and shall not, waive any rights against Developer which it may have by reason of the aforesaid hold -harmless agreement, because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in Paragraph 15 of this Agreement. B. That the aforesaid hold -harmless agreement by Developer shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this paragraph, regardless of whether or not City has prepared, supplied or approved of, plans and/or specifications for the Project, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 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 contract or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. A. Worker's Compensation Insurance Developer shall maintain, during the life of this Agreement, Worker's Compensation Insurance for all Developer's employees employed at the site of improvement, and in case any work is sublet, Developer shall require any contractor or subcontractor similarly to provide Worker's Compensation Insurance for all contractors' or subcontractors' employees, unless such employees are covered by the protection afforded by Developer. In case any class of employees engaged in hazardous work under this Agreement at the site of the Project is not protected under the Worker's Compensation Statute, the Contractor shall provide and shall cause each subcontractor to provide insurance for the protection of said employees. A waiver of subrogation is required for workers compensation insurance. This policy may not be canceled nor the coverage reduced without 30 days prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine Street, Lodi, CA, 95240. Developer hereby indemnifies City for any damage resulting to it from failure of either Developer or any contractor or subcontractor to take out or maintain such Worker's Compensation insurance. B. Comprehensive General and Automobile Insurance Developer shall take out and maintain during the life of this Agreement such insurance as shall insure City, its elected and appointed boards, commissions, officers, agents, and employees, Developer and any contractor or subcontractor performing work covered by this Agreement from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from the Project or the Project property, including any public streets or easements, from Developer's or any contractors' or subcontractors' operations hereunder, whether such operations be by Developer or any contractor or subcontractor or by anyone directly or indirectly employed by either Developer or any contractor or subcontractor, and the amount of such insurance shall be as follows: 1. COMPREHENSIVE GENERAL LIABILITY $3,000,000 Each Occurrence $6,000,000 General Aggregate K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022 doc 4 3/7/22 2 COMPREHENSIVE AUTOMOBILE LIABILITY $3,000,000 Combined Single Limit Such insurance shall cover liability arising out of any vehicle (including, owned, hired and non -hired vehicles) operated in performing any and all services pursuant to this Agreement. Coverage shall be written on ISO form CA 00 01 12 90, or a later version, that provides liability coverage at least as broad as this form. Developer must have comprehensive automobile liability only if Developer's vehicles are used for the Project or on the Project property. NOTE: The City 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). Please see attached flyer regarding PINS Advantage. NOTE: Developer agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). "Claims made" coverage requiring the insureds to give notice of any potential liability during a time period shorter than that found in the Tort Claims Act shall be unacceptable. All limits are to be designated strictly for the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers. All deductibles or self-insured retentions (SIR) must be disclosed to City's Risk Manager for approval and shall not reduce the limits of liability set forth hereinabove. Insurance policies containing any deductible or SIR provision shall provide, or be endorsed to provide, that the deductible or SIR may be satisfied by either the Named Insured(s) or the City of Lodi. It is required that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth above, shall be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall be (i) the minimum coverage and limits specified in these insurance requirements; or (ii) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the Developer; whichever is greater. A copy of the certificate of insurance with the following endorsements shall be furnished to the City: A. Additional Named Insured Endorsement Pursuant to a separate endorsement (ISO form CG 2010 (11/85) or a later version, that provides liability coverage at least as broad as this form) Such insurance as is afforded by this policy shall also apply to the City of Lodi, its elected and appointed boards, commissions, officers, agents and employees as additional named insured insofar as work performed by the insured under written contract with the City of Lodi. This endorsement shall be on the form furnished by City and shall be included with Developer's policies. An additional named insured endorsement is also required for Auto Liability. B. PrimarV and Non-Contributo Insurance Endorsement Additional insurance coverage under the Developer's policy shall be "primary and non-contributory" and will not seek contribution from City's insurance or self- insurance and shall be at least as broad as ISO form CG 20 01 04 13. K:\WP\DEV_SERV\Developments\Residential\Century 2525 W improvement Agreement\ImpAgmt_Benjamins_revised 2022.doc 0 3/7/22 C. Severability of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the Developer's liability. D. Waiver of Subrogation Include a waiver of subrogation against the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers. A waiver is required for General Liability and Auto Liability. E. Limits of Coverage The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance of Developer shall contain, or be endorsed to contain, a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City's own insurance or self-insurance shall be called upon to protect the City as a named insured. F. Completed Operations Endorsement For three years after completion of project, a certificate of insurance with a Completed Operations Endorsement, CG 20 37 07 04, will be provided to the City of Lodi. G. Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Developer shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Developer shall provide proof of continuing insurance on at least an annual basis during the Term. If Developer's insurance lapses or is discontinued for any reason, Developer shall immediately notify the City and immediately obtain replacement insurance. H. Failure to Com I If Developer fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Developer shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Developer of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Developer shall pay such reimbursement and interest on the first (1St) 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. 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. K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\ImpAgmt_Benjamins_revised 2022 doc b 3/7/22 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 be responsible for performing regular maintenance on the private landscape elements, including plants and irrigation system, installed with the Project in the City's right-of-way. Should Developer 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. Joint Trench / Dry Utility Encroachment Developer shall be responsible for obtaining an encroachment permit issued by the City of Lodi Public Works Department prior to commencing any joint trench or other dry utility related work within the City's right-of-way or public utility easements. 20. Repair or Replacement of City -Owned Bypass Meter Assemblies Developer is required by City to install bypass meter assemblies in conjunction with the installation of water mains in the City of Lodi. City will supply these assemblies upon receipt of a deposit in the amount of $5,000 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." 21. 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 K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022.doc 1 3/7/22 erosion control shall extend to include a period of two years from the date of final acceptance by City of the work performed under this Agreement. If a dust or erosion problem arises during development or within a period of two (2) years from the date of final acceptance by City of the work performed under this Agreement, including but not limited to installation of 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. 22. Fire Protection During Construction Fire protection facilities approved by City's Fire Chief, including all-weather access road and an approved water supply capable of supplying the required fire flow, shall be installed and made serviceable in accordance with the City Fire Code (as set forth in the Lodi Municipal Code) prior to and during the time of building construction. The above may be modified when alternate methods of protection approved by the Fire Chief are provided. 23. 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. 24. Dwelling Occupancv City will not allow occupancy of any building or structure within the Project until all 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 the public improvements are so accepted by City. 25. Developer Not Agent of City Neither Developer nor any of Developer's agents, contractors, or subcontractors are or shall be considered to be agents of City in connection with the performance of Developer's obligations under this Agreement. 26. Notice of Breach and Default If Developer refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of said work within such time, or if Developer should be adjudged bankrupt, or Developer should make a general assignment for the benefit of Developer's creditors, or if a receiver should be appointed in the event of Developer's insolvency, or if Developer or any of Developer's contractors, subcontractors, agents, or employees, should violate any of the provisions of this Agreement, the Public Works Director or City Council may serve written notice upon Developer and Developer's surety of breach of this Agreement, or any portion thereof, and the default of Developer. 27. Breach of A reement: Performance by Surety or City In the event of any such notice, Developer's surety shall have the duty to take over and complete the work and the improvements herein specified; provided however, that if the surety, within five (5) days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of this Agreement, and K:\WP\DEV_SERV\Developments\Residential\Century 2525 WVmprovement Agreement\lmpAgmt_Benjamins_revised 2022 doc b 3/7/22 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. 28. This Agreement shall run with the land and be binding on the Owner, its heirs, successors and assigns. 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. O. Box 3006 Lodi, CA 95241-1910 Notices required to be given to Developer shall be addressed as follows - C Note LP 1420 South Mills Avenue, Suite M Lodi, CA 95242 Attn: Michael Carouba Notices required to be given to Developer's Contractor shall be addressed as follows: A. M. Stephens Construction Co., Inc. 1717 South Stockton Street Lodi, CA 95240 Attn: Greg Stephens 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. [The balance of this page is intentionally left blank.] K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022 doc y 317122 30. Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. In Witness Whereof, Developer, Developer's Contractor, and City have caused their names and corporate seals to be hereunto affixed. Dated: Dated: Dated: ATTEST: PAM FARRIS Assistant City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH City Attorney I "DEVELOPER" C NOTE LP, a California limited partnership By BART ROBERTSON Manager (CORPORATE SEAL) "DEVELOPER'S CONTRACTOR" A. M. STEPHENS CONSTRUCTION CO., INC., a California corporation By: GREG STEPHENS President (CORPORATE SEAL) CITY OF LODI, a California municipal corporation By STEPHEN SCHWABAUER City Manager (CORPORATE SEAL) K:\WP\DEV_SERV\Developments\Residential\Century 2525 W\Improvement Agreement\lmpAgmt_Benjamins_revised 2022 doc 10 3/7/22 EXHIBIT A The land referred to is situated in the County of San Joaquin, City of Lodi, State of California, and is described as follows: PARCEL 1 as depicted on that MAP filed in Book 26 of Parcel Maps, Page 38, San Joaquin County Records APN: 058-030-300-000 Description: San Joaquin,CA Document - Year.DocID 2020.147743 Page: 3 of 3 Order: me Comment: It 1 �1 w - tl-S6T4 " = Z __ I 'o K p w w t C m �a z o Year osmo x dS m i Nie ° Komi d' w _ ouaxo . U paxa a ooN i BILLING SCHEDULE Development: Lower Sacramento Road Street Improvements (Benjamin Apartments) Developer: C Note LP Engineer: RSC Engineering Date: 2/28/22 Gross Acreage: No. of Units: Construction cost EXHIBIT C 5.61 N/A $144,20000 DEVELOPER COST CREDITS ENGINEERING Plan Check Fee (5.0% of $100,000) ENGFEE $ 5,000.00 (3.5% of $44,200) ENGFEE 1,547.00 Inspection Fee (4.0% of $144,200) ENGINS 5,768.00 Plan Check Fee Paid ENGFEE $ 3,129.22 Improvement Agreement ENGFEE $2,692.00 $ ENGINEERING SUBTOTAL $ 15,007,00 $ 3,129.22 STREET SYSTEM Fees: Storm Water Inspection Fees PW03 1 LS @ $ 1,145.00 $1,145.00 (Charge for 6 months of inspections) Charges for work by City Forces: Seal Coat NC07 4,180 SF @ $ 0.13 $543.40 STREET SYSTEM SUBTOTAL $1,688.40 $0.00 STORM DRAIN SYSTEM Fees: Charges for Work by City Forces: TV Inspection for Pipe Installation PW03 15 LF @ $ 1.50 22.50 TV Inspection for Project Acceptance PW03 15 LF @ $ 1.50 22.50 STORM DRAIN SYSTEM SUBTOTAL $4500 $0.00 ELECTRICAL SYSTEM To be billed separately by Electric Utility Department TOTAL AMOUNT OF BILLING SCHEDULE $16,740.40 $3,129.22 ADDITIONAL FEES Reimbursement Agreement 2007-52 Lower Sacramento Road (Kettleman Lane to Harney Lane) Improvements 5.61 Acres @ $5,497.07/Acre $30,838.58 Reimbursement Agreement 2018-01 Public Improvements Constructed with the Lodi Shopping Center 5.61 Acres @ $22,890.80/Acre $128,417.38 TOTAL DUE PRIOR TO IMPROVEMENT PLAN APPROVAL $172,867.14 0 RESOLUTION NO. 2022-77 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN IMPROVEMENT AGREEMENT FOR THE LOWER SACRAMENTO ROAD STREET IMPROVEMENTS (CENTURY BOULEVARD TO 510 FEET NORTH OF CENTURY BOULEVARD) (BENJAMIN APARTMENT COMPLEX) WHEREAS, C Note LP (Developer) has submitted multiple building permit applications (including No. B2020-2871) to construct an apartment complex on the property located at 2525 West Century Boulevard; and WHEREAS, the public improvements being constructed as part of the Benjamin Apartment Complex include the installation of street improvements along the portion of Lower Sacramento Road fronting the apartment complex; and WHEREAS, Developer has furnished the City with public improvement plans, necessary agreements, guarantees, insurance certificates, and the required fees for the proposed project; and WHEREAS, Development Impact Fees will be collected as part of the building permit process, prior to issuing a certificate of occupancy; and WHEREAS, staff recommends authorizing the City Manager to execute an Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet north of Century Boulevard) (Benjamin Apartment Complex). NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute an Improvement Agreement for the Lower Sacramento Road Street Improvements (Century Boulevard to 510 feet north of Century Boulevard) (Benjamin Apartment Complex); and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (adopted 11/6/19, Resolution No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: April 6, 2022 I hereby certify that Resolution No. 2022-77 was passed and adopted by the City Council of the City of Lodi in a regular meeting held April 6, 2022 by the following vote: AYES: COUNCIL MEMBERS — Hothi, Khan, Kuehne, and Nakanishi NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Mayor Chandler ABSTAIN: COUNCIL MEMBERS — None nQ,7n�4W-62L4 PAMELA M. FARRIS Assistant City Clerk 2022-77