HomeMy WebLinkAbout4.06 AmendAgmtGHCTr7279 CITY CLERK
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 20, 2004
SUBJECT: Second Amendment to Tract Developer Agreement, Tract 7279
(Tassajara Creek Phase II - GHC Investments, LLC)
Report Prepared by: Melissa Morton, Public VForks Director
ATTACHMENTS: 1) Resolution Amending the Tract Developer Agreement
for Tract 7279, together with Exhibit "A" of Resolution
2) Amendment # 1 to Tract Development Agreement
3) Original Tract Developer Agreement with GHC Investments
for Tract 7279 improvements
4) Location Map
RECOMMENDATION~~ Adopt Resolution approving the second amendment to the Tract
Developer Agreement for Tract 7279 to extend the completion date
an additional six months, or until October 16, 2004
FINANCIAL STATEMENT: GHC Investments, LLC, has provided a Performance Bond and a
Labor and Materials Bond to guarantee construction of public fight-
of-way improvements, including landscaping and required site
improvements, and will pay the cost of the associated construction
inspection.
DESCRIPTION: On October 16, 2001, the City Coun~cil, via Resolution No. 178-01,
authorized the Mayor to execute a Tract Developer Agreement with GHC Investments for public fight-of-
way and site improvements associated with Tract 7279, a subdivision located in Eastern Dublin, west of
Tassajara Road. The Agreement allowed the developer 548 calendar days to complete the improvements.
The Agreement was subsequently amended via City Council Resolution No. 43-03 to extend the
completion date to April 16, 2004.
Although the improvements are nearing completion in accordance with approved plans and specifications,
certain improvements will not be finished within the timeframe allowed by the agreement. Specifically,
the ongoing construction of homes within the subdivision is preventing the public improvements from
being finalized. GHC Investments has thus requested a second amendment to the governing Tract
Developer Agreements to extend the completion date by an additional 6 months to allow time to complete
'the remaining work.
The Public Works Director has determined that it is in the best interest of the City to extend the
Agreement. The improvements will continue to be guaranteed by the original Performance Bond and
COPIES TO: Tim Quinn, Greenbriar Homes Communiti~ j
ITEM NO.
G:~DEVELOP\Gq-eenbriar~Tassajara Creek\agst 2nd amend tr dev agmt Tr 7279.doc
Labor and Materials Bond, and the Developer's insurance will remain in effect as required by the original
Agreement.
Staff recommends that the City Council adopt the Resolution approving the second amendment to the
Tract Developer Agreement for Tract 7279 to extend the completion date an additional six months, or
until October 16, 2004.
Page
RESOLUTION NO. - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING SECOND AMENDMENT TO THE
TRACT DEVELOPER AGREEMENT FOR TRACT 7279
(TASSAJARA CREEK, PHASE II, BY GHC INVESTMENTS, LLC)
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and GHC Investments, LLC
(hereinafter referred to as "DEVELOPER"), entered into a Tract Developer Agreement (hereinafter referred to
as "AGREEMENT") on October 16, 2001, pursuant to City Council Resolution No. 178-01; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT no later than 548 days following the date of execution; and
WHEREAS,' the AGREEMENT was amended via City Council Resolution No. 43-03 to extend the
completion date to April 16, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend
the completion date by an additional 6 months, or until October 16, 2004, to allow the DEVELOPER time to
complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the AGREEMENT
by 6 months, or until October 16, 2004; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth in
the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect;
NOW, THEREFORE, BE IT RESOLVED that the second amendment (attached hereto as Exhibit
"A" of this Resolution) to the Tract Developer Agreement for Tract 7279 is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute Exhibit "A".
PASSED, APPROVED AND ADOPTED this 20th day of April, 2004.
AYE S:
NOES:
ABSENT:
ABSTAIN:
ATTEST: Mayor
City Clerk
G:kDEVELOP\Greenbriar~Tassajara Creekkreso 2nd amend tr dev agmt Tr 7279.doc
EXHIBIT "A" OF
RESOLUTION NO. -04
A RESOLUTION OF THE CiTY COUNCIL
OF THE CITY OF DUBLIN
SECOND AMENDMENT TO TRACT DEVELOPER AGREEMENT
FOR TRACT 7279 (TASSAJARA CREEK, PHASE II - GREENBRIAR)
BETWEEN CITY OF DUBLIN AND GHC INVESTMENTS, LLC
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and GHC Investments, LLC
(hereinafter referred to as "DEVELOPER"), entered into an Tract Developer Agreement (hereinafter referred to as
AGREEMENT) on Ocfober 16, 2001 pursuant to City Council Resolution No. 178-01; and
WHEREAS, Section I of said AGREEMENT states that the DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 548 days following the date of the execution; and
WHEREAS, the AGREEMENT was previously amended via City Council Resolution No. 43-03
to extend the completion date to April 16, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to
extend the completion date by an additional 6 months or until October 16, 2004 to allow the DEVELOPER time to
complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the
AGREEMENT; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth
in the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect; and
NOW, THEREFORE, the parties hereto agree as follows:
Completion time for the improvement work governed by the AGREEMENT is hereby extended an
additional 6 months or until October 16, 2004.
CITY OF DUBLIN
ATTEST: Mayor
GHC Investments, LLC
City Clerk A Delaware Limited Liability Company
By: Greenbriar Homes Communities, Inc.
A California Corporation, Its Man,~ge~r
Signature:
Date: Z/
G:kDEVELOP\Greenbriar~Tassajara CreekkEx 'A' reso 2nd amend tr der agmt Tr 7279.doc
~~.~1S,~1~ .to be the Person~ whose, na:me~
;~- ~ ~ ...... subscribed to the within in~trum.ent and
~~ / a~nowte~ged to-me:that hel~ executed
_._ ~ _~_.~ the' same in his/~ 'authorized.
capacity~), and tha~ b~ his/~
~ ~~"bl~: CoII~n~' ~ Signature~6n.,~he inst~meht the person(S), 0r
~~ ~C~n~ · ~ the entity upon behalf' of which the person~~
' ~.~ ~.'~1~,2~7~ acted, executed'the [nstoument,
/ .-¢~ ·
Though t~e ]nfo~afi=n bslow i= no~ r~quired by la~ i~ ~y.p~ve 'vatuabl~ to person~ ~l~ng on ~he 'd~cu~ent
and ¢ouJd p~vent ~uddtent remove/and ~affachment of thi~ fo~ '~o ano~ef .dodu~enL
Description .ofA~aChed Document
Dscument Date:. W:/g: ~:¢ Number of Pages:
'sig~er(s) Other Then Named Above: '"
Capaci~yOes) Claimed by Signer
Corporate Offic~r'--T[~e(s):. ~ ec., ~ ~, Topofthum~ hem
Pa~er ~ ~ Limited ~ GeneraJ
A~omey in Fa.~
Trustee
Guardian or Conse~ator ' '
~ther:
EXHIBIT "A' OF
RESOLUTION NO. z/~...-03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN-
AMENDMENT TO T~CT DEVELOPER AG~E~NT
FOR T~CT 7279 (TASSAJ~ C~EK, PHASE H:- G~E~~)
BE~EEN CI~ OF D~L~ ~D GHC ~ST~NTS~ LLC
WHE~AS, the Ci~ of Dublin (hereina~er refe~ed to as "CI~") and GHC Investments, LLC
~ercinaker rcfc~ed to as "DEVELOPEK"), entered into an Tract Developer Ageement (hereinaker refe~ed to as
AG~EMENT) on October 16, 2001; ~d
WHE~AS, Section i of said AG~EMENT states that ~¢ DE--LOPER shall complete all
improvements gove~ed by thc AG~E~NT not later th~ 548 days following ~e date of the execution; ~d
WHE~AS, ~e DEVELOPER has agreed to ~end the AG~E~NT to extend the completion
date by 365 additional days or ~til April 16, 2004; and
WHE~AS, it is in the best interest of thc CI~ to extend the completion date of ~e
AGKEEMENT; ~d ·
~~AS, ~is Amendment hereby inc~o~tes by reference all te~s and conditions set foah
in the AG~E~NT, .and all terms and conditions which ~e not specifically modified by ~is Amendment shall
remain in ~11 force ~d effect; and
NOW, THEREFO~ ~e p~ics hereto agree as follows:
Completion time for the improvement work governed by ~e AG~EMENT is hereby extended
365 days or until April 16, 2004.
CI~OF[[ DUBL~ / '
a Delaware limited liability comply
By: Greenbriar' Homes Communities, Inc.
A California Corporation
Rs: Executive Vice President
C:XDocuments m~d Settings\tquinn\Loeal Settings\Temporary lnternet Filcs\OLKFkEx 'A' reso amend tr ~T~OE
CI.TY .OF DUBLIN
.. TRACT DEVELOPER AGREEMENT
This agree~nent, is made and entered into this 1'sth' day of October, 2001, by and'
between the Ct'FY'.Of Dublin, a municiPal'corporation, hereinafter refeiTed to. as "CITY", and
GHC Investments, LLC, a Delaware limited liability company, hereinafter referred'to as
"DEVELOPER". ' ' '
RECITALS
........................ -WHEREAs,...it:has~beendeteFm, ineel...~y..the.Cl.~..GouFmi.t:.of...the.ol~.ofD ubfin.; .'State..
of Ca.lifomia, that DEVELOPER, the subdivider:of Tract No. 7279, desires to improve and
dedicate those public improvements (hereafter "The Improvements") required, by City of
Dublin Planning Commission Resolution No. 01-04 adopted On .March .13, 2001 in
accordance with the requirements .and conditions set.forth in said resolution, the
requirements of the Subdivisio~ :Map Act of the State of California, the Subdivision Ordinance
of the CITY, and'those certain plans and specifications for said development entitled
"~lmp~ovement Plans', Tract 7279, Tassajara, Creek !I," prepared by Ruggeri,'jensen,
Azar and Associates, dated August 22, 2001, approved by CiTY-on September 19, 200I,
and -now on file in the office of the Public Works.. Director/City Engineer, which are hereby
referred to for a more definite and distinct description of the work to be performed under this
Agreement as though set forth' at 'length herein; and
WHEREAS, DEVELOPER intends to-satisfactorily complete The imprc~vements Within
the time .hereinafter specified, and. CITY intends to accept DEVELOPER's offer(s) of
dedication of The Improvements in Consideration for DEVELOPER's satisfactory performance
Of the terms and conditions of this Agreement:
NOW, THEREFORE, i-n consideration of the' mutual promises, conditions and
covenants herein contained, the parties agree as follows:
1. CompletiOn Time. '
DEVELOPER will commence construction of The.'Improvements within thi~y. (30) days
following the date on Vzhich' CITY .executes this Agreement.. DEVELOPER'.shall complete
said work not later'than Five hundred fourty,eight (548) days fOllOwing said date of execution.
Time is of the essence in this Agreement. Upon completion~ DEVELOPER Shatl' furnish CITY
. With a complete and .reproducible.set of final as~built plans of The Improvements, including
any. authOrized modifications.
.... · .......
2. Estimated Cost'of Impfovement~.
The estimated cost of constructing The Improvements required by-this, agreement as
adjusted-for inflation, is agreed .to be $!,045,190. Said amount includes costs and,reasonable
expenses and fees which may. be incurred in enforCing .the obligation, Se.c. ~..e.cL -
'3. Bonds-FUrniShed. "
Concurrently with the execution of this Agreement, .DEVELOPER shall fufnis'h CITY
with ~he-foliowing secudty in a form satisfactory to the CITY Attorney:
A. Faithful Performance. Either a cash.deposit, a corporate surety bond issued
:b. ;..a. com a.n. -.dul....,and..ie ..... .' .......... ' · .............. · ................................................. :.~.:: ...... ' ........................
~ P Y y gaily t~censed to conduc~ a general surety bus,ness ~n ttie StYe of
'California, or an instrument of credit equivalent to one hun~lred, per cent (100%)'of the
estimate set forth in Paragraph 2 and. sufficient t° assure CiTY that The Improvements will be
satisfactorily completed.
B. Labor and Materials. Either a cash deposit, a corporate.surety bond issued
by a company duly and legally licensed to conducta general Surety business in the State .of
California', or an. instrument of credit equivalent to one. hundred per cent (100%) of the
estimate set forth in Paragraph 2 and sufficient to assure CITY that' DEVELOPER'S
contractors, subcontractors, and other persons furnishing labor, materials, or equipment
shall be paid therefor. ' '
C. If required by C!T¥, a cash deposit, corporate surety bond, or instrument of
credit sufficient to assure CiTY that the surface water drainage of the subdivision shall not
interfere with the .use of. neighboring property, including public streets and highWays.
CiTY shall be the sole indemnitee named On any instrument required by this
Agreement. Any in. strument or depo¢it required herein shall conform with the provisions of
-Chapter 5 ,of the Subdivision Map. Act. '
4. Insurance Required.
Con.currently 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
insdrance shall have been approved by the Administrative Services Director of CITY, or his
designee, as to form, amount and carrier. Prior to the commencement of work underthis
Agreement, DEVELOPER's general contractor shall obtain Or causeto.be obtained and filed
with the Administrative Services Director, alt insurance, required under this paragraph",' and-
such insurance shall have been approved by the Administrative Services Director of'CITY, as
to form, amount and car~ier. DEVELOP. ER shall :not aliow any contracto~ or subcon;~ractor 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 ir~surance carrier.
A. Minimum Scope of Insurance.-Coverage.shall be at least as broad as:
1), Insurance Services office-fom3 number,' GL o002 (Ed: 1/73) covering
GL .0404 covering Broad Formi~omprehensive General Liability; or lnSyj~ance
Services. Office .Commercial General Liability coverage (,'occurrence" form
CG 0001.)
2)' .Insurance Services Offi5e form number.CA 0001 (Ed. 1/7.8) covering
AutomObile... Liability, code 1 "any auto" and endorsement CA 0025.
State of California and Employers Liability In.surance.
B. Minimum Limits. of Insurance. DEVELOPER sl~all maintain limits no less
than:
I) General Liability: $1,000,000 combined' single limit per occurrence for
bodilyin].ury, 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 pe~ accident for
bodily injury and property damage.
3) Workers! Compensation and Employers Liability: Workers'
compen'~ation' 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, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its officers, officials and employees; or the
DEVELOPER shall procure a bond.guaranteei'ng 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, 0ffidials, employees and volunteers
shall be named as additi.onat.insureds as respects: liability arising
out of activities performed by or on behalf-of the DEVELOPER;
pi'oducts and completed' operations of the DEVELOPER;
premises owned, occupied.of used by the DEVELOPER; or
automobiles .owned, leased, hired or borrowed by the.
DEVELOPER. The coverage.shall contain no special limitations
on the scope of the protection afforded .to the Cl .TY, its o..fficers;
officials., employees or volunteers.
b~) The. DEVELOPER's insurance coverage shall be.primary
insurance as respects the CITY,-its officei's, officials, employees
.and volunteers. Any insurance o.r 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..c~mp~y:~with~re~rting~pr.~vi.si~ns`o~the..~i~cies~s~h~a~"
not affect co. verage 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 perfonmed by the DEVELOPER for the CITY.
3.) Ali.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 Bests' 'rating of no less than A:VII.
b) Verification of' Coverage. DEVELOPER Shall furnish 'CITY with
certificates .of insurance and with origina! endorsements effecting
coverage required by ~his 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 cer[~cates and endorsements are to be received and
approved by the C['t-Y before work commences. The CITY
reserves the right to reqdJre complete, certified copies .of all -
required irisuranCe 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 endomements for
~ each subcontractor. Ail covera.ges.for,sUbcontractOrs shall be-
subject to ail.of'the requirements stated herein.
5. Work Performance and GUarantee.
Except' as. otherwise expressly provided in this Agreement, and excepting only items of
routine maintenance., ordinarywear and 'tear and unusual abuse or neglect, DEVELOPER
"g uarantees all work-executed by. DEVELOPER and/or DEVELOPER's agents, and. ail
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 pum'uant to the Agreement, to 'be
free of all defects of workmanship, and materials for a Period of one (1) year after initial
work or material, together with all or any other. Work or materials which may be displaced or
damaged in so doing, that may p~ove defective in .workmans.h_jp or material Within said one:
year guarantee period without'expense-or charge of any nature whatsoever t° CITY.'
· DEVELOPER further covenants and agrees that When defectsin design, workmanship and.
materials.actually appear during the one-year guarantee period, and have been corrected,
'the g.uarantee period shall' automatically be extended for an additional year'to insure that
such defects have actuallY been corrected.
in the event the DEVELOPER shall fail to:comPly with the conditions of the foregoing'
guarantee within sixty ('60) days time~ after being notified' of the defect in writing, 'CITY shall
have the right, but shall, not.be obligated', to repair or obtain ti'Jo 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, ir~ the event that any defect in workmanship
or material covered by the foregoing guarantee.results in a o0nditi0n which constitutes an
i'mmediate.hazard to the public health, safety; or welfare, CITY shall have the right to
'immediately repair, or ca,use to be rePaired, such defect, and DEVELOPER shall pay t°.CITY
'on 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
re.,pairs 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
rep!acements o.r performs the.neceSsary work, DEVELOPER shall pay, in addition to actual
costs and expenses of such repair or work, ten percent (10%) of such costs and expenses for
overhead and interest at the maximum rate of interest Permitted by law accruing, thirty i30)
days. from the date.of billing for such work or repailrs~-
6. Inspection of the Work.
DEVELOPER shall guarantee free access to CiT~ through its Public Works
Direc1~odCity Engineer and his designated representative for the safe and convenien~..
inspection of the.work throug hour its construction. Said. CITY representative S.hail'have the
authority to reject all materials and workmanship .which are not in accordance 'with the plans
and specifications; .and all such materials 'and or work. shall be removed promptly by
DEVELOPER.a, nd replaced to the satisfaction of CITY without any'expense, to CITY in strict
accordance with the impr. ovemen.t plans and specifications.
7'. ,' Ag reement Assignment:
This Agreement Shall not be assigned by DEVELOPER without the written conSent of
-. 8. Abandonment of Work. -'
Neither DEVELOPER nor anyof DEVELOPER's agents or contractors are or Shall be
'considered to be agents of CITY in Connection with the performance Of'DEVELOPER'~
obligations Under'this Agreement.. ·
........ - ....... ~fDE¥E~PER:.refuses.~or.~faiis`~t~..obt~ir¥`~ro~.~tio~.:~.ft~`i,~W5d~,;.6i~...~i~§~.V~.f~i~5~ .....
part thereof, with. such diligence as Will insure its completion within the time specified, o'r any
extension thereof, or fails to obtain completion of said work within Such time, or if
DEVELOPER should be adjudged as' bankrupt, or shoutd'make a-general assignment for the '
benefit of DEVELQPER'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 and DEVELOPER's .surety or holder'of other security of
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 Co.mptete The Improvements herein specified; provided,
hoWever, that if the 'surety; within thirty (30) 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 C'I'Pf' may deem..advisable, for the account and at the
expense of BEVELOPER and DEVELOPER's :surety shall be liable to CITY for any damages
and/or reasonable .and documsnted'excess costs occasioned.by CITY thereby; .and, in. Such
event, CITY, without t!ability 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 an'd necessary therefor.
All notices herein required shall be in writing, and delivered in person orsent by
registered mall, postage· prepaid
Notices required to be given to CiTY Shall be addressed as follows:
.City of Dublin
Public Works Department.
100 Civic Pfaza
Dublin, CA 45.88
Attn: Lee 'Thompson
Notices required to be given to DEVELOPER shall be addressed as follows:
GHC.i.nvestments, LLC ...
" Cio Greenbriar Homes 'Communities, Inc.
.... ...4340 Stevens. Creek Blvd.., Suite 240
San jose, CA 95;129
At[n: PatriCk Costanzo, Jr,
· NOtices required to be given surety of DEVELOPER shall be addressed as follows:
Developers Surety and Indemnity Company
17780 Fitch, 'Suite 200
Attn: Richard S; Svec
Any party or the surety may change sush address by notice in' writing to the other party
and thereafter notices shail'be addressed and transmitted to the` new address.
Concurrently with the execution of this. Agreement, DEVELOPER. has execUted and
has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees .CITY
may record said abstract in the Official Records of Alameda County.
.9. Use .of Streets or improvements..
At all times prior to the final acceptance of the work by CI'FY', the use of any or alt
streets and. improvements within the work to be performed-under this Agreement. shall be at
the §ole and exclusive risk of DEVELOPER, The issuance of any building or occupancy
permit by CITY for dWellings located v~ithin the tract shall..not be Construed. in any. manner to
constitute a partial or final acceptance-or approval of any-or all such improvements.by CtTY.
DEVELOPER agrees that CITY's Building Official may-withhold the issuance of building or
occupancy permits when· the work or its progress may substantially and/or detrimentally
· affect public health and safety.
10. Safety Devices.
DEVELOPER shall provide, and maintain such guards, watchmen, fences, barriers,
regulatory signs, warning
,,~,,,o, and other safety devices adjacent to and on the tract site as
may be-necessa.ry te preveBt accidents to the Public. and damage to the prope .rtY.
DEVELOPER .shall furaish, place, and maintain such lights as may be nece'ssary 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 entii'e site left clean and orderly.
· 1'1..Acceptance of Work.
' Upon notice of the completion of all tract work and; th~'deiivery of a set of final as-built
plans to.CITY by DEVELOPER; CITY, through its City Engineer or his designated
representative, shall examine the tract work~ without delay, and, if'found to be in accordance
with said plans.and specifications arid ,this Agreement, shall reC°mmend acceptance of'the
wOrk to-the City Council and, upon such acceptance,, shall notify DEVELOPER or his
designated agent~ of such.acceptance.
12. Patent and Copyright CoStS.
l'n the event that said plans 'and Specifications require the use of any material, process
-or publication which is subject to a duly registered patent or copyright, DEVELOPER. shall be
liable for, and'shall indernnify:CITY from any fees,, cos-ts or litigation expenses, including
· a~eFReysl!,,.fees. .and....eeurt. oosts.~..-which,.ma .y .resUlt..fro.m,~heuse ..of. said..patentedor .copyrighted..
material, pr._Ocess or publication.
t3. 'Alterations in Plans end',Specifications.
Any alteration or' alterations made in the' plans and specifications which are 'a part of
thisAgre'ement or any provision of this Agreement' shall not operate to release any surety or
sureties from liability on any bond-or bonds attached hereto'and made a part hereof, and
consent to'make such alterations is hereby g!ven, and.the sureties to said bonds hereby
waive the provisions of. Section 2819 of the Civil Code of the State of California.
A. DEVELOPER Primarily Liable. DEVELOPER agrees to indemnify, defend,
release,· and saVe harmless .CITY, and each of its elective and appointive boards,
commissions, officers agents and employees, from and against any and all loss,
claims, suits, liabilities, 'actions, damages, or causes of action of every kind, natUre
and description, directly or' indirectly arising from an act o.!; omission of'DEVELOPER,
its emplOYees; agents, or independent contractors in connection With DEVELOPER'S
actions and obligations.hereu_nder; 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 4 he~eof,
2) That theafocesaid hold harmless agre-ement:by DEVELOPER shall
apply to all damages and Claims for damages of every kind suffered, or alleged
to have 5eOn,suffered, by reason .of any.of the aforesaid operations referred to
,in this paragraph, regardless of Whetheror not CiTY has prepared,.Supplied, or
approved of pl'ans and/or specifications :for the subdivision,' or regardless of
whether or not such insurance, p61icies shall have been determined to. be
applicable to any of such damages or claims for damages.
3) DeSign Defect. If, in the °Pinion'of the CITY, a design defect in the
work.gl improvement becomes apparent during the course of. construction, 0r
within 'one (~1'} .yea'r following acceptance, by the CITY of the. impr?vernents, and
said'design defect; in' the opinion of the Cl.'PC', ..maY substantiallY'ii~Pair'th'e .'-. -.
public health and safety, DEVELOPER shalt,.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 t'o this Agreement, and.said action seekS damages' for breach of
this Agreerpent or seeks to specifically enforce the terms of this.Agreement,
a n d¥..in--the:-event~j.udgment.~is., ente r~d ..~insaid~ action ;....t.he..-p revaiting..party, shall-]be'
entitled to recover its reasonable attorneys" fees and court costs. If .CITY is the
prevailing party, CITY shall also be entitled, to recover its afforney's fees and
costs in-any action against DEVELOPER's surety On the bonds provided 'under
paragraph 3.
15. Recitals.
The foregoing Recitals are .~rUe and correct and are made a part hereof.
IN WITNESS WHEREOF, the' parties hereto have executed this Agreement in
duplicate at'Dublin, Califo. rnia,.the day and Year first above written.
i ATTE'ST:
GH~ INVESTi'viENTS, LLC
A Detaware limited liabilitY comPanY
By: Greenbriar Homes Communities, inc.
A California Corporation, its Manager,
EHS:~a
May 4, t 999
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