HomeMy WebLinkAbout5.07 Park Improvement Agreement for Francis Ranch DevelopmentAgenda Item 5.7
DUBLIN
CALIFORNIA
STAFF REPORT
CITY COUNCIL
853DATE: .Line 25, 2024
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SU B.ECT : Park Improvement Agreement for Francis Ranch Development
Prepared by: BridgetAmaya, Assistant Parks & Community Services Director
EXECUTIVE SUMMARY:
The City Council will consider an Improvement Agreement with TH East Ranch Dublin LLC
(Trumark) and Arroyo CAP IV-3 (Arroyo) to construct two 5.5-acre neighborhood parks as
identified in the Eastern Dublin Specific Plan within the Francis Ranch development, formerly
called East Ranch.
STAFF RECOMMENDATION:
Adopt the Resolution Approving the Improvement Agreement for Two Neighborhood Park Sites
Within the Francis Ranch Development.
FINANCIAL IMPACT:
The Developer will bear all costs associated with the agreement, with the parks being developed
in accordance with the City's requirement for land dedication and park improvements. The
Developer will be granted fee credits in the Neighborhood Park Improvement Fee category for
improvements made beyond what is required.
DESCRIPTION:
TH East Ranch Dublin LLC (Trumark) and Arroyo CAP IV-3 (Arroyo) own certain real property
consisting of 165.5 acres of land located north of Interstate 580, east of Fallon Road, and adjacent
to the City's eastern boundary (APN 905-2-12), on which it has approvals for a residential
development project. The approval authorizes Trumark to develop 573 residential dwelling units,
comprising 100 multi -family attached units and 473 detached single-family units, along with
infrastructure and related improvements.
Trumark and Arroyo dedicated two 5.5-acre neighborhood parks within Tract 8563, totaling 11
acres, as a project condition of approval. The dedication satisfies Neighborhood Parkland
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dedication obligations, and Trumark and Arroyo have received Neighborhood Parkland fee credits
under the City's Public Facilities Fee program.
In addition, Trumark is now requesting to develop the two 5.5-acre neighborhood parks, by
completing the improvements being credited against the City's Neighborhood Park Improvement
Fee under the Public Facilities Fee Program. The estimated construction cost for the
improvements, as adjusted for inflation, is agreed to be $9,814,321. Based on the Public Facility
Fee Program calculations, Trumark will receive an improvement credit value of $4,881,620.
If the City Council approves the agreement, the City intends to accept Trumark's offer of park
improvements in consideration of Trumark's satisfactory performance of the terms and conditions
outlined therein (Attachment 2).
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of this Staff Report has been provided to the Developer, and the City Council Agenda was
posted.
ATTACHMENTS:
1) Resolution Approving the Improvement Agreement for Two Neighborhood Park Sites Within
the Francis Ranch Development
2) Exhibit A to the Resolution - Improvement Agreement for North and South Neighborhood Park
Site within Francis Ranch Development
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Attachment I
RESOLUTION NO. XX — 24
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE IMPROVEMENT AGREEMENT FOR TWO NEIGHBORHOOD PARK
SITES WITHIN THE FRANCIS RANCH DEVELOPMENT
WHEREAS, TH East Ranch Dublin (Trumark) and Arroyo CAP IV-3 own portions of
certain real property ("the Property") consisting of 165.5 acres of land, located in the City of
Dublin, County of Alameda, north of Interstate 580, east of Fallon Road and adjacent to the City
of Dublin's eastern boundary, (APNs 905-0002-008 through -011 and -013 through -023,
inclusive) on which it is pursuing a residential development project ("the Project"); and
WHEREAS, in pursuit of the Project, Trumark has sought and obtained approval of a
Vesting Tentative Map for Tract 8563, and was approved by City Council Resolution No. 140-21
on December 7, 2021; and
WHEREAS, the Vesting Tentative Map requires Trumark to dedicate two 5.5-acre
neighborhood parks, totaling 11 acres of neighborhood parkland to the City for which it will
receive Neighborhood Park credits under the City's Public Facilities Fee Program; and
WHEREAS, Trumark will design and develop the two 5.5 acre neighborhood parks with
the cost of completing the improvements being credited against the City's Neighborhood Park
Improvement fee credits under the City's Public Facilities Fee Program, as specified in the
Agreement; and
WHEREAS, upon completion, Trumark will dedicate the park Improvements to the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve an Improvement Agreement for the two neighborhood park sites within the
Francis Ranch Development, attached hereto as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to
execute the Agreement and make any necessary, non -substantive changes to Exhibit A to
carry out the intent of this Resolution.
{Signatures on the Following Page}
Reso. No. XX-24, Item 5.7, Adopted 06/25/2024 Page 1 of 2 3
Attachment I
PASSED, APPROVED AND ADOPTED this 25th day of June 2024, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Reso. No. XX-24, Item 5.7, Adopted 06/25/2024 Page 2 of 2
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Attachment 2
IMPROVEMENT AGREEMENT FOR
NORTH AND SOUTH NEIGHBORHOOD PARK SITE
WITHIN THE FRANCIS RANCH/EAST RANCH DEVELOPMENT
THIS IMPROVEMENT AGREEMENT (this "Agreement") is made and entered in the
City of Dublin on this ("Effective Date") by and among THE CITY
OF DUBLIN, a Municipal Corporation (hereafter "CITY"), TH EAST RANCH DUBLIN LLC, a
California limited liability company (hereafter "DEVELOPER") and ARROYO CAP IV-3, LLC,
a Delaware limited liability company (hereafter "OWNER"). CITY, DEVELOPER and OWNER
are hereinafter collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, OWNER owns certain real property located at 4038 Croak Road in the City
of Dublin, County of Alameda (APNs 905-0002-008 through -011 and -013 through -023,
inclusive), as more particularly described in Exhibit A attached hereto (the "Property"); and
WHEREAS, OWNER and DEVELOPER entered into (i) an Option Agreement dated
September 28, 2023, wherein OWNER granted an option to DEVELOPER to purchase and acquire
the Property in successive takedown closings on a lot -by -lot basis for the construction of a
residential development project, and (ii) a Construction Agreement dated September 28, 2023,
with Trumark Construction Services, Inc., an affiliate of DEVELOPER, wherein Trumark
Construction Services, Inc., agreed to, among other things, develop and install on -site and off -site
grading, backbone and infrastructure and other improvements in connection with development of
the Property;
WHEREAS, DEVELOPER has sought and obtained approval of a Vesting Tentative Map
(Tract No. 8563) (the "Vesting Tentative Map"); and
WHEREAS, the approval of the Vesting Tentative Map authorizes DEVELOPER to
develop the Property to include approximately five hundred seventy-three (573) residential
dwelling units, of which one hundred (100) multi -family attached units and four hundred
seventy-three (473) detached single family units, along with infrastructure and related
improvements (the "Project"); and
WHEREAS, the Vesting Tentative Map requires DEVELOPER to dedicate and improve a
total of 11.0 acres of neighborhood park to the CITY and to satisfy in full requirements of the
development and impact fees under the City's Public Facilities Fee Program (collectively, the
"Park Improvement Impact Fees") for the following: (a) Community Nature Parks,
Improvements; (b) Community Parks, Improvements; (c) Neighborhood Parks, Improvements; (d)
Neighborhood Parks, Land; and (e) Community Parks, Land; and
WHEREAS, CITY and DEVELOPER now desire that DEVELOPER design and develop
two neighborhood parks totaling 11.0 acres, one of which is depicted on the Vesting Tentative
Map as Parcel D and is composed of approximately 5.5 acres (the "North Park") with the
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DEVELOPER's cost for completing the improvements to the North Park being credited against
the City's Park Improvement Impact Fees, as specified herein; and
WHEREAS, CITY also desires that DEVELOPER design and develop the approximately
5.5-acre neighborhood park in the location depicted on the Vesting Tentative Map as Parcel 0 (the
"South Park"), as specified herein (North Park and South Park are herein collectively referred to
as the "Parks"); and
WHEREAS, DEVELOPER will design and construct the improvements on the Parks
(hereinafter called "Park Improvements") and DEVELOPER or OWNER, as the then -owner of
the land, as applicable, will dedicate the Park Improvements to the CITY (for the avoidance of
doubt, the Park Improvements do not include the South Park ROW Improvements (as defined
below) and the North Park ROW Improvements (as defined below)); and
WHEREAS, the build out of the Park Improvements will satisfy in full the requirements
of the development and impact fees under the City's Public Facilities Fee Program for the
following: (a) Community Nature Parks, Improvements; (b) Community Parks, Improvements;
and (c) Neighborhood Parks, Improvements (collectively, the "Park Impact Fees"); and
WHEREAS, the dedication of the Park Improvements to the CITY and recordation of a
final map covering the Project will satisfy in full the requirements of the development and impact
fees under the City's Public Facilities Fee Program for the following: (a) the Neighborhood Parks,
Land; and (b) Community Parks, Land (collectively, the "Land Impact Fees"); and
WHEREAS, DEVELOPER is currently permitting with the CITY and subsequent to
obtaining approval will build improvements in the right of way (collectively, the "South Park
ROW Improvements") directly adjacent to South Park limits, consistent with Vesting Tentative
Map and Improvement Plans for Francis Ranch Tract 8563 Phase 1 Backbone Croak Road and
Central Parkway ("Phase 1 BB") along Croak Road, Street T and Street B; and
WHEREAS, DEVELOPER is currently permitting with the City and subsequent to
obtaining approval will build improvements in the right of way and open space corridor trail
(collectively, the "North Park ROW Improvements") directly adjacent to North Park limits,
consistent with Vesting Tentative Map and Improvement Plans for Francis Ranch Tract 8563
Phase 2 Backbone ("Phase 2 BB") along Croak Road, and Street A; and
WHEREAS, the CITY has agreed to the installation of art, public art, or a public art project
within the Park per Chapter 8.58 Public Art Program Contribution to be addressed in a written
agreement between DEVELOPER and CITY;
WHEREAS, DEVELOPER agrees to satisfactorily complete the Park Improvements and
CITY intends to accept DEVELOPER's and/or OWNER's (each in its capacity as the then -owner
of the land, as applicable) offer of dedication of the land and Park Improvements in consideration
for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement.
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NOW, THEREFORE, CITY, OWNER and DEVELOPER agree as follows:
1. Land Dedication. As set forth in the Vesting Tentative Map, the DEVELOPER
and/or OWNER (each in its capacity as the then -owner of the land, as applicable) shall dedicate
the North Park on or before recordation of the final map, which together with the dedication of the
South Park will total approximately 11.0 acres of usable land. For the avoidance of doubt, the
parties agree that DEVELOPER is obligated to perform the improvements set forth herein on the
Property on behalf of itself and OWNER. This land dedication shall satisfy the obligations
imposed on APN 905-0002-012 owned by Taylor Morrison of California, LLC, a California
limited liability company ("Taylor Morrison") by Chapter 9.28 of the Dublin Municipal Code to
dedicate land or pay fees in lieu thereof as a condition to filing a final map for certain real property
located in the City of Dublin, County of Alameda, State of California as more particularly
described in that certain Agreement for Purchase of Real Property and Preliminary Escrow
Instructions dated November 3, 2023 by and between Taylor Morrison and DEVELOPER, as
amended. Taylor Morrison shall be a third -party beneficiary to the previous sentence with all
rights to enforce the same as though it were a party to this Agreement. Furthermore, OWNER or
DEVELOPER's dedication of the North Park and South to the CITY shall satisfy the obligations
imposed on any subsequent owner of any portion of the Project to build parks or pay in lieu fees
for such subsequent owner's development of the portion of the Project acquired by such
subsequent owner, and such subsequent owner shall be a third party beneficiary to this sentence
with all rights to enforce the same as though it were a party to this Agreement.
2. Names. Notwithstanding anything to the contrary herein, OWNER and
DEVELOPER acknowledges and agrees that the Parks will be subject to the standard City naming
process.
3. Park Design: Design Documents.
a) DEVELOPER shall (i) hire Gates + Associates to design the Park
Improvements, (ii) submit conceptual plan alternatives for Park Improvements to the CITY for
design review within ninety (90) days of the execution of this Agreement and (iii) shall obtain
written approval from CITY, and any and all depar tiiients with authority over the conceptual plans,
of the final conceptual plan and approval to issue all required permits, no later than one hundred -
eighty (180) days from the execution of this Agreement, unless such time period is extended by a
Force Majeure Event (as defined below). In the event that DEVELOPER chooses to move forward
with a landscape architect other than Gates & Associates, DEVELOPER shall provide CITY with
prior written notice. Conceptual plans shall be consistent with the Neighborhood Park Standards
in the Parks and Recreation Master Plan, as approved by the City Council in April 2022, subject
to Section 11 below, and with the City's standards for park development (collectively, the
"Standards"). CITY, and any and all applicable departments having review and approval
authority over the revised plans, shall have thirty (30) calendar days to provide detailed, written
and complete comments to DEVELOPER's initial submittal and any subsequent submittals of
revised plans. Notwithstanding the foregoing, CITY shall require no more than three (3)
subsequent submittals of revised plans.
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b) Conceptual plans will be presented to the City of Parks and Community
Services Commission and City Council for final approval within sixty (60) calendar days of
CITY'S approval of the conceptual plans.
c) Notwithstanding the foregoing, in the event the conceptual plans exceed the
Total Park Improvement Fee (defined below), CITY shall reimburse OWNER for any excess costs
subject to Section 11 below.
4. Park Construction; Construction Documents. DEVELOPER shall cause the
preparation of construction plans and specifications for the Improvements, including all amenities
listed as Neighborhood Park Standards in the 2022-City of Dublin Parks and Recreation Master
Plan ("Construction Documents"). The Construction Documents shall be consistent with the
Standards as well as all local codes and regulations. The Construction Documents shall be
approved by the CITY, and any and all departments having review and approval authority over the
Construction Documents, no later than twelve (12) months following submission of the
Construction Documents. The twelve-month period may be extended for an additional six (6)
months by the mutual agreement of City Manager, OWNER and DEVELOPER. CITY shall have
thirty (30) calendar days to provide detailed, written and complete comments to DEVELOPER's
initial submittal and any subsequent submittals of revised plans.
5. Construction Timeline. DEVELOPER will commence grading of the Parks
concurrent with the Project grading. Upon CITY approval of DEVELOPER's Construction
Documents, DEVELOPER will commence construction of the Improvements within ninety (90)
days and provide written notice, email to suffice, to the CITY evidencing the same
("Commencement Notice"). All Improvements shall be Completed (as defined below) no later
than eighteen (18) months following the date of the Commencement Notice, unless the completion
date is extended by the City Manager or a Force Majeure Event (as defined below). Such eighteen -
month (18-month) period shall include the plant establishment period. Time is of the essence in
this Agreement. Upon completion, DEVELOPER shall furnish CITY with a complete and
reproducible set of final as -built plans, AutoCAD copies of the Construction Documents for the
Park Improvements, including any City authorized modifications, and all product and
manufactures warranties as identified in the Construction Documents. For the purpose of this
Section 5, "Completed" shall mean all required plants have been planted, a punch list has been
drafted, all irrigation has been installed, and all signage and Improvements are substantially
complete.
In the event that DEVELOPER is unable to complete the Park Improvements prior to the
time specified herein, the CITY shall take all actions necessary to collect on furnished bonds and/or
at the CITY's option, the CITY shall complete the work and the DEVELOPER shall be subject to
the Total Park Improvement Fee, as defined in Section 11.
Notwithstanding anything to the contrary herein, any deadline set forth in this Agreement
shall be subject to extension on a day -for -day basis due to delays caused by an act of god, war, riot
or terrorism, epidemic, pandemic, governmental order, cyberattack, or any other condition, event
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or circumstance beyond the reasonable control or foreseeability of DEVELOPER or CITY
(collectively, a "Force Majeure Event").
6. Acceptance of Work. Upon written notice of completion of the Park
Improvements, inclusive of a one hundred and twenty (120) day plant establishment maintenance
period, and delivery of a set of final as -built plans and copies of Construction Documents to CITY
by DEVELOPER, the CITY shall examine the Park Improvements within five (5) calendar days
of such notice. The public shall not be permitted access to the Park Improvements during
construction of the Park Improvements, including the plant establishment maintenance period. If
the Park Improvements are found to be in accordance with said plans and specifications and this
Agreement, CITY shall recommend acceptance of the work to the City Engineer, and, upon such
acceptance, shall notify OWNER and DEVELOPER or each if their designated agents of such
acceptance. CITY shall only accept the Park Improvements at 100% completion. At the time of
acceptance, CITY shall take over all maintenance responsibilities of the parkland and Park
Improvements.
7. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through
the City Manager's designated representative for the safe and convenient inspection of the work
throughout its construction. Said City representative shall have the authority to reject all materials
and workmanship that is not in accordance with the plans and specifications, and all such
materials and or work shall be removed promptly by DEVELOPER and replaced to the
satisfaction of CITY without any expense to CITY in strict accordance with the improvement
plans and specifications. The CITY representative will also attend all project progress meetings
during the course of construction. DEVELOPER shall submit any plan changes before and during
construction to the City Manager's designated representative for approval. Construction shall not
begin on any plan changes until they are approved pursuant to Section 8 of this Agreement. Any
plan changes requested or required by CITY or any agent of CITY, including without limitation
the CITY designated inspector, shall be a Force Majeure Event.
8. Change Orders. DEVELOPER shall submit a written request for approval of any
change orders to the CITY at least ten (10) business days prior to proceeding with any change
order. DEVELOPER shall not issue any change orders on such construction contract without first
obtaining CITY's written consent. DEVELOPER acknowledges the failure to obtain such written
consent from the CITY will result in DEVELOPER's sole responsibility to pay for such change
orders without reimbursement credit from the CITY, provided CITY has responded to the written
request for approval within the ten (10) day period. In the event CITY fails to respond to the
Change Order request within such ten (10) day period, CITY' s failure to respond shall be a Force
Majeure Event.
9. Payments. CITY and DEVELOPER acknowledge that CITY and DEVELOPER
incur various costs during park development beyond construction document preparation and
improvement construction. Such costs include but are not limited to City staff review and
construction management charges, consultant construction assistance (environmental, inspection,
engineering), storm water pollution prevention, utility connection fees, utility bills (electric and
water, prior to acceptance of Park Improvements), surety premiums, City inspections, permits and
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fees, design/drafting fees, fencing, maintenance and miscellaneous costs such as photocopying and
printing. DEVELOPER shall be responsible for all payments associated with the Park
Improvements, including all design and construction costs. This includes but is not limited to,
consultant design work, contractors work, electric and water bills (prior to acceptance of Park
Improvements), storm water pollution prevention, consultant construction assistance, City
inspections, permits and fees. DEVELOPER shall provide to CITY a monthly accounting
summary outlining project costs to date. DEVELOPER will include copies of invoices paid.
DEVELOPER will provide copies of cancelled checks if requested by CITY. All payments
described in this Section 9 shall be credited towards the Total Park Improvement Fee and any
payments in excess of the Total Park Improvement Fee shall be reimbursed by CITY to OWNER
subject to Section 14.
10. Work Performance and Guarantee. Except as otherwise expressly provided in this
Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual
abuse or neglect, DEVELOPER guarantees all work executed by DEVELOPER and/or
DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated
in, or attached to the work, or otherwise delivered to CITY as a part of the work pursuant to the
Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after
final acceptance of the entire work by CITY. All manufactured products specified for the site shall
have extended warranties as available from the companies that supply the products. All such
warranties shall be transferred to the CITY prior to final acceptance of the Park Improvements.
These warranties shall cover both the replacement of parts and the labor necessary to have the
equipment in proper working order. These products include, but are not limited to: play equipment,
site furnishings and mechanical equipment. DEVELOPER shall repair or replace any or all such
work or material, together with all or any other work or materials which may be displaced or
damaged in so doing, that may prove defective in workmanship or material within said one (1)
year guarantee period without expense or charge of any nature whatsoever to CITY.
DEVELOPER further covenants and agrees that when defects in design, workmanship and
materials actually appear during the applicable guarantee period, and have been corrected, the
guarantee period for such corrected items shall automatically be extended for an additional year to
ensure that such defects have actually been corrected. In the event the DEVELOPER shall fail to
comply with the conditions of the foregoing guarantee within fifteen (15) days' time, after being
notified of the defect in writing, then such cure period may be extended per discretion of CITY for
such time as is reasonably necessary so long as DEVELOPER has commenced such cure within
the initial fifteen (15) day time period and diligently pursue such cure to completion), CITY shall
have the right, but shall not be obligated, to repair or obtain the repair of the defect, and
DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding
anything herein to the contrary, in the event that any defect in workmanship or material covered
by the foregoing guarantee results in a condition which constitutes an immediate hazard to the
public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be
repaired, such defect, and DEVELOPER shall pay to CITY upon written demand all costs and
expense of such repair. The foregoing statement relating to hazards to health and safety shall be
deemed to include either temporary or permanent repairs, which may be required as determined in
the sole discretion and judgment of CITY. If CITY, at its sole option, makes or causes to be made
the necessary repairs or replacements or performs the necessary work as provided herein,
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DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work, fifty
percent (50%) of such costs and expenses for overhead and interest at the maximum rate of interest
permitted by law accruing thirty (30) days from the date of billing for such work or repairs.
11. Cost of Park Improvements. The estimated cost of constructing the Park
Improvements for the Parks shall be Nine Million Eight Hundred Fourteen Thousand Three
Hundred and Twenty -One and 00/100 Dollars ($9,814,321.00) ("Estimated Cost"). The total cost
of the Park Improvement Impact Fees shall equal Four Million Nine Hundred Thirty -Two
Thousand Seven Hundred and One and 00/100 Dollars ($4,932,701.00) ("Total Park
Improvement Fee") and the fee credit maximum pursuant to this Agreement shall equal Four
Million Eight Hundred Eighty -One Thousand Six Hundred Twenty and 00/100 Dollars
($4,881,620.00). Pursuant to the Public Facilities Fee Program, in the event that the cost of
constructing the Park Improvements for the Parks exceeds the Total Park Improvement Fee, CITY
shall reimburse OWNER pursuant to Section 14 below. Notwithstanding the foregoing,
DEVELOPER shall provide a cost estimate for the City Engineer's approval in conjunction with
submittal of the Construction Documents. The approved cost estimate shall be used to, if
necessary, increase the amount of the security required by Section 12. The Project shall be
constructed on a prevailing wage scale as required by the State of California. Notwithstanding the
foregoing to the contrary, in no event shall DEVELOPER's aggregate out-of-pocket obligation for
constructing the Park Improvements for the Parks exceed the Total Park Improvement Fee.
12. Security Furnished. Concurrently with the execution of this Agreement,
DEVELOPER shall furnish CITY with the following security in a form satisfactory to the City
Attorney. If necessary DEVELOPER shall replace the initial security provided with security that
reflects any increase in the Estimated Cost pursuant to Section 11. DEVELOPER shall also furnish
a ten percent (10%) bond for the one (1) year warranty. For the avoidance of doubt, CITY shall
be solely responsible for maintenance of the Parks during the one (1) year warranty period and
DEVELOPER shall be responsible only for replacing damaged plants within the Parks upon
written request of the CITY, but in no event more than twice, during the one (1) year warranty
period. DEVELOPER's responsibility to replace damaged plants shall expire upon termination of
the one (1) year warranty period.
a) Faithful Performance. Either a cash deposit, a corporate surety bond
issued by a company duly and legally licensed to conduct a general surety business in the State of
California, or an instrument of credit equivalent to one hundred percent (100%) of the estimate set
forth in Section 11 and sufficient to assure CITY that the Park Improvements will be satisfactorily
completed (the "Faithful Performance Bond"). A separate Faithful Performance Bond shall be
posted for each park and released upon substantial completion of the Park Improvements to that
park.
b) Labor and Materials. Either a cash deposit, a corporate surety bond issued
by a company duly and legally licensed to conduct a general surety business in the State of
California, or an instrument of credit equivalent to one -hundred percent (100%) of the estimate set
forth in Section 11 and sufficient to assure CITY that DEVELOPER's contractors, subcontractors,
and other persons furnishing labor, materials, or equipment shall be paid therefore.
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c) CITY shall be the sole indemnitee named on any instrument required by
this Agreement. Any instrument or deposit required herein and the release thereof shall conform
with the provisions of Chapter 5 of the Subdivision Map Act.
13. Fee Credit. Upon DEVELOPER' s posting security for the completion of the Park
Improvements under the terms of this Agreement, OWNER and DEVELOPER shall be deemed
to have satisfied its obligations to contribute to Park Improvements under the Park Impact Fees for
five hundred seventy-three (573) residential units or the number of units equivalent to the portion
of the 11.0 acres covered by the security, not to exceed Eight Hundred Ninety -Two Thousand Two
Hundred Eleven and 00/100 Dollars ($892,211.00) per acre, including soft costs. Upon dedication
of the Park Improvements and recordation of a final map for the Project, OWNER and
DEVELOPER shall be deemed to have satisfied its obligations under the Land Impact Fees. All
Park Impact Fee credits and Land Impact Fee credits hereunder shall belong to OWNER.
14. Credit for Excess Costs. Pursuant to the Public Facilities Fee Program and City of
Dublin Municipal Code Section 7.78.040, CITY shall reimburse OWNER in the form of
reimbursement credit, to the extent that actual construction, design, and related costs, as approved
by CITY, total more than the Total Park Improvement Fee; provided, however, that in no event
shall CITY be required to reimburse OWNER in an amount greater than Four Million Eight
Hundred Eighty -One Thousand Six Hundred Twenty and 00/100 Dollars ($4,881,620.00). Within
ten (10) business days of DEVELOPER's written notice to CITY that its costs exceed the Total
Park Improvement Fee, CITY, OWNER and DEVELOPER shall enter into a Public Facilities Fee
Credit/Reimbursement Agreement substantially in the form attached hereto as Exhibit B.
15. Obligations Arising from Agreement. Neither the General Fund, nor any other fund
or monies of CITY, except the Public Facilities Fee Neighborhood Park Improvement Fund or
similar park improvements funds or accounts, shall be utilized for payment of any obligations
arising from this Agreement. Neither the credit nor the taxing power of CITY is pledged for the
payment of any obligations arising from the Agreement. OWNER and DEVELOPER's obligations
arising from this Agreement are not a debt of CITY, or a legal or equitable pledge, charge, lien or
encumbrance upon any of its property, or upon any of its income, receipts or revenues.
16. Building Permit. CITY acknowledges and agrees that upon the Effective Date,
DEVELOPER is entitled to all building permits necessary for developing the Property.
17. Liability.
a) DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the
design and construction of the Improvements will not adversely affect any portion of adjacent
properties and that all work will be performed in accordance with the professional standards
prevailing in the industry for similarly situated improvement projects in the City of Dublin.
DEVELOPER agrees to indemnify, defend with counsel acceptable to CITY, and hold harmless
CITY, its officers, officials, employees, agents, and volunteers, from and against any and all loss,
claims, suits, liabilities, actions, damages, or causes of action (collectively "Liability") directly
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arising from the negligence or willful misconduct of DEVELOPER, its employees, agents, or
independent contractors in connection with DEVELOPER's actions and obligations hereunder,
except such Liabilities caused by the sole negligence or willful misconduct of the CITY; provided
as follows:
1) 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 18 hereof.
2) That the aforesaid hold harmless agreement by DEVELOPER shall
apply to all damages and claims for damages suffered, or alleged to have been suffered, by reason
of the negligence or willful misconduct of DEVELOPER, regardless of whether or not CITY has
prepared, supplied, or approved of plans and/or specifications for the subdivision.
3) Design Defect. If, in the opinion of the CITY, a design defect in the
work of improvement becomes apparent during the course of construction, or within one (1) year
(except for those manufactured products where extended warranties have been provided, in which
case the extended warranty period shall apply) following acceptance by the CITY of the Park
Improvements, and said design defect, in the opinion of the CITY, may substantially impair the
public health and safety, DEVELOPER shall, upon order by the CITY, correct said design defect
at his sole cost and expense, and the sureties under the Faithful Performance and Labor and
Materials Bonds shall be liable to the CITY for the corrective work required.
4) Litigation Expenses. In the event that legal action is instituted by
either party to this Agreement, and said action seeks damages for breach of this Agreement or
seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in
said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. If
CITY is the prevailing party, CITY shall also be entitled to recover its attorney's fees and costs in
any action against DEVELOPER's surety on the bonds provided under paragraph 11.
18. Insurance Required. Concurrently with the execution hereof, DEVELOPER shall
obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph,
and such insurance shall have been approved by the Risk Manager of CITY, or his designee, as to
form, amount and carrier. Prior to the commencement of work under this Agreement,
DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Risk
Manager, all insurance required under this paragraph, and such insurance shall have been approved
by the Risk Manager of CITY, as to form, amount and carrier. DEVELOPER shall not allow any
contractor or subcontractor to commence work on this contract or subcontract until all insurance
required for DEVELOPER and DEVELOPER's general contractor shall have been so obtained
and approved. Said insurance shall be maintained in full force and effect until the completion of
work under this Agreement and the final acceptance thereof by CITY. All requirements herein
provided shall appear either in the body of the insurance policies or as endorsements and shall
specifically bind the insurance carrier.
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A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) Insurance Services Office form number GL 0002 (Ed. 1/73)
covering comprehensive General Liability and Insurance Services Office form number GL 0404
covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial
General Liability coverage ("occurrence" form CG 0001.)
2) Insurance Services Office form number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3) Workers' Compensation insurance as required by the Labor Code of
the State of California and Employers Liability Insurance.
B. Minimum Limits of Insurance. DEVELOPER shall maintain limits no
less than:
1) General Liability: $1,000,000 combined single limit per occurrence
for bodily injury, personal injury and property damage. If commercial General Liability Insurance
or other form with a general aggregate limit is used, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit
2) Automobile Liability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
3) Workers' Compensation and Employers Liability: Workers'
compensation limits as required by the Labor Code of the State of California and Employers
Liability limits of $1,000,000 per accident.
C. Deductibles and Self -Insurance Retentions. Any deductibles or self -
insured retentions must be declared to and approved by the CITY. At the option of the CITY,
DEVELOPER shall procure a bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1) General Liability and Automobile Liability Coverages.
a) The CITY, its officers, agents, officials, employees and
volunteers shall be named as additional insureds in respect to: liability arising out of activities
performed by or on behalf of the DEVELOPER; products and completed operations of the
DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned,
leased, hired or borrowed by the DEVELOPER.
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The coverage shall contain no special limitations on the scope of the protection afforded to the
CITY, its officers, officials, employees, consultants or volunteers.
(b) The DEVELOPER's insurance coverage shall be primary
insurance in respect to the CITY, its officers, officials, employees and volunteers. Any insurance
or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be
excess of the DEVELOPER's insurance and shall not contribute with it.
(c) Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the CITY, its officers, officials, employees or
volunteers.
(d) The DEVELOPER's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
2) Workers' Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials,
employees and volunteers for losses arising from work performed by the DEVELOPER for the
CITY.
3) All Coverages. Each insurance policy required by this clause shall
be endorsed to state that coverage shall not be suspended, voided, cancelled by either party,
reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the CITY.
a) Acceptability of Insurers. Insurance is to be placed with
insurers with a A.M. Bests' rating of no less than A:VII.
b) Verification of Coverage. DEVELOPER shall furnish CITY
with certificates of insurance and with original endorsements effecting coverage required by this
clause. The certificates and endorsements for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to
be received and approved by the CITY before work commences. The CITY reserves the right to
require complete, certified copies of all required insurance policies, at any time.
c) Subcontractors. DEVELOPER and/or DEVELOPER's
general contractor shall include all subcontractors as insureds under its policies or shall obtain
separate certificates and endorsements for each subcontractor. All coverages for subcontractors
shall be subject to all of the requirements stated herein.
19. Assignment of Agreement. This Agreement shall not be assigned by OWNER or
DEVELOPER without the written consent of CITY, which shall not be unreasonably withheld.
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20. DEVELOPER Not an Agent. Neither DEVELOPER nor any of DEVELOPER's
agents or contractors are or shall be considered to be agents of CITY in connection with the
performance of DEVELOPER'S obligations under this Agreement.
21. Abandonment of Work. 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 extension thereof, or fails to obtain completion of said work within such
time, or if DEVELOPER should be adjudged as bankrupt, or should make a general assignment
for the benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if
DEVELOPER, or any of DEVELOPER'S contractors, subcontractors, agents or employees should
violate any of the provisions of this Agreement, the CITY through its Public Works Director may
serve written notice on DEVELOPER, OWNER and DEVELOPER's surety or holder of other
security of DEVELOPER's breach of this Agreement, or of any portion, thereof, and default of
DEVELOPER. In the event of any such notice of breach of this Agreement, DEVELOPER's surety
shall have the duty to take over and complete the Improvements herein specified; provided
however that OWNER shall have the right of first option (but not the obligation) to take over and
complete the Improvements and shall notify any surety and the City of the same within thirty (30)
days of its exercise of such option; provided further that if OWNER does not take over the
construction of the Improvements within thirty (30) days and the surety, within sixty (60) 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 the contract, and does not commence performance thereof within
thirty (30) 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 the lesser of (i) any damages incurred by CITY arising directly from DEVELOPER's
abandonment of the work, or (ii) reasonable and documented excess costs occasioned by 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.
22. Notices. All notices herein required shall be in writing, and delivered in person or
sent by registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, California 94568
Notices required to be given to OWNER shall be addressed as follows:
Arroyo Cap IV-3, LLC
Attn: Jeffrey Brouelette
18575 Jamboree Road, Suite 350
Irvine, CA 92612
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Notices required to be given to DEVELOPER shall be addressed as follows:
With a copy to:
And a copy to:
TH East Ranch Dublin LLC
Attn: Tony Bosowski
3001 Bishop Dr. #100
San Ramon, CA 94583
TH East Ranch Dublin LLC
Attn: Legal Department
3001 Bishop Dr. #100
San Ramon, CA 94583
Jackson Tidus
Attn: Sonia A. Lister, Esq.
2030 Main Street, 12th Floor
Irvine, CA 92614
Any party or the surety may change such address by notice in writing to the other party and
thereafter notices shall be addressed and transmitted to the new address.
23. Use of Improvements. At all times prior to the final acceptance of the work by
CITY, the use of any or all Improvements within the work to be performed under this Agreement
shall be at the sole and exclusive risk of DEVELOPER.
24. Safety Devices. DEVELOPER shall provide and maintain such guards, watchmen,
fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the
tract site as may be necessary to prevent accidents to the public and damage to the property.
DEVELOPER shall furnish, place, and maintain such lights as may be necessary for illuminating
the said fences, barriers, signs, and other safety devices. At the end of all work to be performed
under this Agreement, all fences, barriers, regulatory signs, warning lights, and other safety
devices (except such safety items as may be shown on the plans and included in the items of work)
shall be removed from site of the work by the DEVELOPER, and the entire site left clean and
orderly.
25. Attorneys' Fees and Venue. In any action to enforce the provisions of this
Agreement, the prevailing party shall be entitled to its reasonable attorney's fees. Any action
arising out of this Agreement shall be brought in Alameda County, California regardless of where
else venue may lie.
26. Recitals. The foregoing Recitals are true and correct and are made a part hereof.
27. Severabilitv. If a court of competent jurisdiction finds or rules that any provision of
this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged
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shall remain in full force and effect. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other provision of this Agreement.
28. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the CITY, OWNER and DEVELOPER have executed this
Agreement, the day and year first above written.
CITY OF DUBLIN
a Municipal Corporation
Dated: By:
Name: Linda Smith
Title: City Manager
ATTEST:
By:
Name: Marsha Moore, City Clerk
Approved as to form
By:
Name:
, City Attorney
OWNER: DEVELOPER:
ARROYO CAP IV-3, LLC, TH EAST RANCH DUBLIN LLC,
a Delaware limited liability company a California limited liability company
By: Arroyo Cap IV-2, LLC, By:
a Delaware limited liability company Name:
its sole member Title:
Dated:
By: Arroyo Capital IV, LLC,
a Delaware limited liability company
its so'
By._ bituk Idtt,
Name:.,"
Title: Presi aent
06/12/24 1 4:33 PM PDT
15
Dated:
CDncuSigned by:
Nu? f'bsowsti
A5717kAB1BFA457..
Tony 6VJVWJis.
Authorized Agent
6/12/2024
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EXHIBIT A
Legal Description of the Property
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNTY OF
ALAMEDA, STATE OF CALIFORNIA, BEING ALL OF PARCELS I THROUGH 4 AND 6
THROUGH 16 OF TRACT 8563. RECORDED IN BOOK 371 OF MAPS AT PAGES 12 THROUGH 22,
ALAMEDA COUNTY RECORDS.
APN'S 905-0002-008 THROUGH 905-002-011 AND 905-0002-013 THROUGH 905-0002-023
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EXHIBIT B
FORM OF PUBLIC FACILITIES FEE CREDIT/REIMBURSEMENT AGREEMENT
[See Attached]
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PUBLIC FACILITIES FEE
CREDIT / REIMBURSEMENT AGREEMENT
BETWEEN CITY OF DUBLIN AND
This PUBLIC FACILITIES FEE CREDIT/REIMBURSEMENT AGREEMENT
("Credit/Reimbursement Agreement") is entered into by and among the City of Dublin ("City"),
TH EAST RANCH DUBLIN LLC, a California limited liability company ("Developer"), and
ARROYO CAP IV-3, LLC, a Delaware limited liability company ("Owner") this ,
20 pursuant to the Consolidated Impact Fee Administrative Guidelines adopted by the City
Council by Resolution No. 144-21.
RECITALS
A. City, Owner and Developer entered into that certain Improvement Agreement for
North and South Neighborhood Park Sites within the East Ranch Development dated ,
20 (the "Park Improvement Agreement") pursuant to which Developer agreed to design
and develop two neighborhood parks totaling 11.0-acres and to dedicate the same to the City.
Initially capitalized terms used and not defined herein shall have the meanings ascribed to such
terms in the Park Improvement Agreement.
B. Pursuant to the Public Facilities Fee Program and City of Dublin Municipal Code
Section 7.78.040, the City is required to reimburse Owner in the form of reimbursement credit,
to the extent that actual construction, design, and related costs ("Improvement Costs"), as
approved by City, total more than the Total Park Improvement Fee, provided City, Developer
and Owner enter into a written reimbursement agreement.
C. Developer has paid an administrative fee of ($ ) to
cover the administrative costs associated with establishing and monitoring this
Credit/Reimbursement Agreement.
D. The City has received the security required by Section 12 of the Park Improvement
Agreement.
E. Developer's Improvement Costs total more than the Total Park Improvement Fee
and City, Developer and Owner now desire to enter into this Credit/Reimbursement Agreement
to distribute Credit (as defined below) to Owner on the terms and provisions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City, Developer and
Owner hereby agree as follows:
1. By virtue of having dedicated 11.0 acres to the City, Owner is entitled to a credit
in an amount of ($ ) (the "Credit") to be used
against the following component of the Public Facilities Fee: Neighborhood Parks, Improvements;
Community Nature Parks, Improvements; and Community Parks, Improvements.
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2. The Credit may be used for a period of five (5) years following the date of this
Credit/Reimbursement Agreement. Thereafter, beginning on , 20 the
Credit, if unused, may convert to a right of reimbursement, at the election of the Owner. In the
event that Owner elects to convert the Credit to a right of reimbursement, Owner shall provide
City written notice and City shall reimburse Owner within thirty (30) days of Owner's written
notice. In the alternative, at the end of the five (5) year credit period, Owner may request that
credits be extended and held in perpetuity and not convert to a right to reimbursement.
3. Neither the Credit nor the right to reimbursement will be increased for inflation or
will accrue interest.
4. With prior written approval of the City Manager, not to be unreasonably withheld,
Owner may transfer the amount of unused Credit to any person or firm having a legal interest in
real property within the area subject to the Public Facilities Fee, provided an administrative transfer
fee, not to exceed ($ ) is paid to City and a written transfer
agreement is executed.
5. Developer and Owner attest that they have read and understand the City's
Administrative Guidelines.
All other aspects of the Credit or right to reimbursement which are not specified in this
Credit/Reimbursement Agreement shall be as provided in the City's Administrative Guidelines
(Resolution No. 144-21, including any amendments thereto).
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City and Developer have executed this
Credit/Reimbursement Agreement, the day and year first above written.
CITY OF DUBLIN
a Municipal Corporation
Dated:
ATTEST:
By:
Name: Marsha Moore, City Clerk
Approved as to form
By:
Name: John Bakker, City Attorney
By:
Name: Linda Smith
Title: City Manager
OWNER: DEVELOPER:
ARROYO CAP IV-3, LLC, TH EAST RANCH DUBLIN LLC,
a Delaware limited liability company a California limited liability company
By: Arroyo Cap IV-2, LLC, By:
a Delaware limited liability company Name:
its sole member Title:
By: Arroyo Capital IV, LLC, Dated:
a Delaware limited liability company
its sole member
By:
Name:
Title:
Dated:
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