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HomeMy WebLinkAboutRESOLUTIONS - 01012000 - 2000-235 CAI THE BOARD OF SUPERVISORS OF CONTRA.COSTA COUNTY,CALIFORNIA Adopted this Resolution on May 16, 2000 by the following vote: AYES: SUPERVISORS GIOIA, UILK.EMA, DESAULNIER, CANCIAMIL.LA AND GERBER NOES: NONE ABSENT: NON ABSTAIN: NONE RESOLUTION NO.: 2000[235 SUBJECT: Approval of the Construction Road Maintenance Agreement for Subdivision 8166, in the Byron area. The following documents were presented for Board approval this date: I. Construction Road Maintenance Agreement A Construction Road Maintenance Agreement with Talisman Realty Group,Inc.,dba Hofmann Land Development,developer,whereby said developer agrees to maintain project haul routes in a convenient, passable condition throughout the entire construction period. This agreement is an extension of a previous Construction Road Maintenance Agreement approved by this Board on March 7, 2000, along with the Final Map for Subdivision 7686. The$15,000.00 cash bond(Deposit Permit 344340 dated January 27, 2000)was taken at that time. NOW THEREFORE, THE FOLLOWING IS RESOLVED: Said Construction Road Maintenance Agreement is APPROVED. All deposit permits are on file with the Public Works Department. RL:kw 1\PwS41SHARDATA1GrpData\EngSvc\BO\2000\BO 5-16-OO.doc ConOriginator: Public works(ES) I herebycertify that this is a true and correct co of an Contact: Rich Laerly(313-234$) 1.� copy action taken and entered on the minutes of the Board of cc: Public works-R.Bruno,Construction On the date shown. Current Planning,Community Development Supervisors T 3-16-01 Talisman Realty Group,Inc.dba Hofmann Land Development PO sox 758,Concord,CA 94522 ATTESTER: MAY 16, 2000 The American Insurance Company One Market Plaza,Spear St.Tower, PHIL BATCHELOR., Clerk of the Board of Supervisors San Francisco,CA 94111 and County Administrator By S=4Y7 ,Deputy RESOLUTION NO. : 2000/235 CONSTRUCTION ROAD .MAINTENANCE AGREEMENT Development: Bixler Road, Discovery Bay Road: Bixler Road from Ng"ort Drive to West, SUB 8166 12 meters north of the Point of Timber Road centerline Developer: Hofmann Land Development Company Maintenance Period: Until Acceptance by County's Public Works Department of all Effective Date:AY 2000 Bixler Road Improvements as complete in Villages I through IV(DiscgyerBay_West) and Release of Bonds) or other Security by Coup 1. PARTIES &DATE. Effective on the above date, the County of Contra Costa, California, hereinafter called "County,"and the above-named Developer, mutually promise and agree as follows concerning this development. 2. PURPOSE. Bixler Road is an existing County road which is being widened and improved by Developer from Newport Drive to 12 meters north of the Point of Timber Road centerline pursuant to Condition of Approval ("COA") #46 C. 1. a) for Subdivision 7686,known as the Discovery Bay West development("project"). COA 46 C. 1 b) for the project requires the Developer to execute a bonded construction road maintenance agreement for this portion of Bixler Road, assuring the County that the specified project haul route(s)will be maintained in a convenient passable condition throughout the construction period. The bond must be provided prior to the approval of the first phase subdivision improvement plan and must remain in effect until the haul routes are improved to handle the traffic, or until upgraded construction is completed and accepted by the County. In order to satisfy this condition with respect to the above-referenced portion of Bixler Road, Developer shall maintain Bixler Road as set forth in this agreement. 3. TERM. The term of this agreement shall be from the effective date until the County has accepted the improvements as complete and the bonds and other security has been released by the County. 4. MAINTENANCE WARRANTY. During the term of this agreement, Developer shall Construction Road Maintenance Agreement(Bixler Road) page 2 of 5 have the sole obligation to maintain Bixler Road and the sole liability for the condition of Bixler Road and the County shall have no obligation to maintain Bixler Road and no liability for the condition of Bixler Road. Developer warrants that the existing road will be maintained in a convenient,passable condition pursuant to condition of approval 46C 1)b of Subdivision 7686. Developer hereby assumes all County road maintenance obligations for Bixler Road during the term of this agreement. Developer further warrants that the haul routes described as follows: Bixler Road , shall be upgraded and maintained in a satisfactory condition as determined by the Director of Public Works. The Director of the Public Works Department, in his or her discretion,will determine if the road is being maintained in a convenient,passable condition and if necessary, will use the bond proceeds and additional security provided to satisfy this condition. 5. MAINTENANCE SECURITY-BONDS. At the time this agreement is executed, Developer shall deposit as security with the County: Cash Bond: $15,000.00. Additional Security: If the Director of Public Works determines that the cash bond is not sufficient to cover the cost of upgrading the haul routes specified in paragraph 4 above, he or she may require the Developer to post additional security in the form of a cash bond or in other form and in an amount acceptable to the Director of Public Works, in his discretion. 6. NO WAIVER BY COUNTY. Neither inspection of the maintenance work and/or materials,nor approval of the maintenance work and/or materials inspected,nor statement by any officer, agent or employee of the County indicating that the maintenance work or any part thereof complies with the requirements of this agreement,nor acceptance of the whole or any part of said maintenance work and/or materials, nor payments therefor, or any combination or all of these acts, nor any other communication or conduct of the County other than a formal written amendment of this agreement shall relieve the Developer of his obligation to fulfill this agreement as prescribed;nor shall the County be estopped from bringing any action for damages arising from the failure to comply with any of the terms and conditions hereof. 7. INDEMNIFICATION. Developer shall indemnify, defend, save, protect and hold harmless County, its governing body, elective and appointed boards, and commissioners, officers, employees, representatives and agents ("Indemnitees") from any and all demands, losses, claims, costs, suits, liabilities and expenses for any damage, injury or death(collectively"Liability")arising directly or indirectly Construction Road Maintenance Agreement(Bixler Road) page 3 of 5 from or connected with the matters covered by this agreement which is caused, or claimed or alleged to be caused, in whole or in part,by the acts, omissions, negligent conduct or wilful misconduct of the Developer, its officers, employees, agents, contractors, subcontractors, or any person under its direction or control and will make good to and reimburse Indemnitees for any expenditures, including reasonable attorney's fees, the Indemnitees may make by reason of such matters and, if requested by any of the Indemnitees,will defend any such suits at the sole cost and expense of Developer. This indemnification clause shall survive the termination or expiration of this agreement. The Developer's obligations under this section shall exist regardless of whether any Indemnitee has prepared, supplied or approved any plan(s) or specification(s) in connection with the improvements or development which are the subject of this agreement or has insurance or other indemnification covering any of these matters. Notwithstanding the foregoing, Developer shall not be required to indemnify County for a liability which a court determines is attributable to the sole negligence or sole willful misconduct of the County, its governing body, elective and appointed boards, and commissioners, officer,or employees. 8. COSTS. Developer shall pay or have paid when due all the costs of the work, to maintain the road and haul routes pursuant to paragraph 4,herein. 9. NON-PERFORMANCE AND COSTS. During the maintenance period specified at the beginning of this agreement, if Developer fails to maintain the roads, including the haul routes, to the standard required by the Public Works Department, County may proceed to maintain them by contract or otherwise and Developer shall pay the costs and charges, therefor immediately upon demand. Alternatively, County may use any or all of the security described in Section 5 to cover the cost of County maintaining the roads, in which case, immediately upon demand, Developer shall restore the security to the original amount. If County sues to compel performance of this agreement or to recover the cost of maintaining the roads, including the haul routes, Developer shall pay all reasonable attorneys' fees, costs of suit and all other expenses of litigation incurred by County in connection therewith. 10. ASSIGNMENT. Developer shall not assign his rights and obligations under this Agreement without the prior, written consent of County. With that limitation, this Agreement shall inure to the benefit of and shall be binding upon the parties to this Agreement and their respective heirs, successors, and assigns. If,before the completion of the maintenance period the Development is annexed to a city, County may assign to that city the County's rights under this agreement and any deposit or bond securing them. Construction Road Maintenance Agreement(Bixler Road) page 4 of 5 11. LABOR&MATERIALS WARRANTY. Developer further warrants that the claims and liens of all persons, contractors, and subcontractors furnishing labor or materials for the maintenance of said road have been satisfied. The Developer agrees to satisfy any valid claims or liens of labor and materialmen as to the said improvements and development appearing hereafter upon demand by the County. 12. CALIFORNIA LAW. This agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action pertaining to this agreement shall be Contra Costa County, California. 13. REPRESENTATION BY COUNSEL. The parties hereto each acknowledge that they have been represented in the negotiations for, and in the preparation of, this agreement by counsel of their own choosing; that they have read this agreement or have had it read to them by their counsel; and that they are fully aware of and understand its contents and its legal effect. Accordingly, this agreement shall not be construed against any party, and the usual rule of construction that an agreement is construed against the party which drafted it shall not apply. 14. COUNTERPARTS. This Agreement may be executed in as many counterparts as may be necessary or convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original, and all such counterparts shall constitute one and the same instrument. 15. SEVERABILITY. If any term, condition or provision of this Agreement is declared illegal of invalid for any reason by a court of competent jurisdiction,the remaining terms, conditions and provisions shall nevertheless remain in full force or effect. 16. COOPERATION. The parties hereto shall reasonably cooperate with each other to fulfill the terms and conditions of this Agreement. 17. NOTICES. All notices (including requests, demands, approvals or other communications) under this Agreement shall be in writing. The place for delivery of all notices given under this Agreement shall be as follows: Developer: Telephone: Construction Road Maintenance Agreement(Bixler Road) page 5 of 5 County: Engineering Services Division Public Works Department 255 Glacier Drive Martinez, CA 94553 Attn: Telephone: 510-313- or to such other addresses as County and Developer may respectively designate written notice to the other. 18. Entire A-areement. This agreement contains the entire agreement among the parties to this agreement and shall not be modified in any manner except by an instrument in writing executed by all parties or their respective successors in interest. CONTRA COSTA COUNTY: Developer: J- , Public Works Director Hofmann Land Development Company, fto/l/610 shlo Inc. By: RECOMMENDED FOR APPROVAL: By: A.T. Shaw, President En veering Servic Division ennis M. Drew, Secretary APPROVED AS TO FORM: Victor J. Wpstman, County Counsel DJS/jh G:\GrpDatalEngSvc\Melissa120001Februarylconstagr.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) ) SS. County of Contra Costa ) On 4/5/40, Elizabeth A. Stagner, a Notary Public in and for the State of California, personally appeared, A.T. Shaw and Dennis M. Drew, personally know to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacity and that by their signature on the instrument the person(s), or the entity on behalf of which the persons(s) acted, executed the instrument. ELIZABETH A. STAGIUER WITNESS my hand and official seal COMM. 1166927 r r► NOTARY PUBLIC-CALIFORNIA *p CONTRA COSTA COUNTY — my Comm.Expires Jan.23,2002 It Signature f11,4. ■■rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrir�rrrrrrrrrrrrr Name of Document: Construction Road Maintenance Agreement Date: Undated Number of Pages: 5