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HomeMy WebLinkAboutReso 43-07 Traffic Impace Fee & Fee Credit RESOLUTION NO. 43 - 07 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING THE IMPROVEMENT AGREEMENT WITH KBH INVESTMENTS, LLC, FOR THE DUBLIN BOULEVARD IMPROVEMENTS FRONTING THE PROPOSED DUBLIN HONDA PROJECT, REIMBURSEMENT OF DOWNTOWN DUBLIN TRAFFIC IMPACT FEES AND THE PROVISION OF FEE CREDITS WHEREAS, THE City of Dublin has a Capital Project (Project) to widen and improve the approaches to the intersection of Dublin BoulevardIDougherty Road; and WHEREAS, the private development of parcels of land for the Dublin Honda Dealership fronting Dublin Boulevard within the Project limits is proceeding in advance of the City's Project; and WHEREAS, the City has purchased the right-of-way for the street widening fronting the proposed Dublin Honda Dealership; and WHEREAS, the developer of the Dublin Honda Dealership has paid the Downtown Traffic Impact Fees for the Dealership; and WHEREAS, it would be less disruptive to the Honda Dealership if the improvements to Dublin Boulevard were installed with the development and prior to the Dealership opening for business; WHEREAS, construction time would be shortened for the City's Project; NOW, THEREFORE, BE IT RESOLVED that the City Council hereby approves the Improvement Agreement with KBH Investments, LLC, for the Dublin Boulevard Street Improvements fronting the proposed Dublin Honda Project, the reimbursement of Downtown Traffic Impact Fees and for the provision of Fee Credits. BE IT FURTHER RESOLVED that the Mayor is hereby authorized by the City Council to execute said Improvement Agreement, attached hereto as Exhibit "A." PASSED, APPROVED AND ADOPTED this 17th day of April, 2007, by the following vote: AYES: Councilmembers Hildenbrand, Oravetz, Sbranti, Scholz & Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None 0a/~~-Id () Janet Lockhart, Mayor AGREEMENT DUBLIN BOULEVARD SOUTHERN FRONTAGE IMPROVEMENTS AND DOWNTOWN DUBLIN TRAFFIC IMP ACT FEE CREDITS FOR THE DUBLIN HONDA PROJECT '1~ 'I" This agreement is made and entered into this ~ day of A,rt , 2007, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and KBH Investments, LLC, (hereinafter referred to as "OWNER"). RECITALS WHEREAS, KBH Investments, LLC, is the owner of certain land within the City of Dublin, known as the Dublin Honda Parcels, Alameda County Assessor's Parcel Numbers 941-550-12-11, 941-550-13-4, and 941- 550-14-4, and the City has approved a certain development project in Dublin for said parcels (Dublin Planning Commission Resolution 05-17, approving a Conditional Use Permit and Site Development Review ["the Project"]) that requires the construction of certain improvements that are the subject of this Agreement; and WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State of California, that OWNER desires to construct the following improvements (hereinafter referred to collectively as "The Improvements"), and the City has acquired the property wherein the improvements will be constructed: Dublin Boulevard southern frontage improvements east of Scarlett Court, including pavement widening, curb, gutter, sidewalk, street drainage, street trees, tree grates and irrigation to the street trees, and pavement markings. The Improvements shall be constructed in accordance with the following referenced plans, which are hereby referred to for a more definite description of the work to be performed under this Agreement as though set forth at length herein: Dublin Honda, Off-Site Improvements dated July 2006, prepared by BKF Engineers, and approved by the City of Dublin on July 27, 2006 (hereinafter, the "Plans and Specifications"); and WHEREAS, the Improvements will be constructed on City-owned lands fronting the Dublin Honda Parcels on Dublin Boulevard, and OWNER or its representative shall apply to and secure an Encroachment Permit from the City to do work within City-owned lands; and WHEREAS, OWNER intends to satisfactorily complete The Improvements within the time hereinafter specified in consideration for OWNER's satisfactory performance of the terms and conditions of this Agreement; and AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page I of 12 WHEREAS, CITY has determined that The Improvements are a public works subject to California prevailing wage requirements; and WHEREAS, OWNER has paid Downtown Traffic Impact Fees for the Project in the amount of $350,628.07, and the parties' original intent was that OWNER should receive a credit against the Downtown Traffic Impact Fees equal to the amount of the guarantee for the Improvements, which amount is $380,112; and WHEREAS, therefore notwithstanding anything to the contrary in the provisions of Condition 106 of Planning Commission Resolution 05-17, Section 6 of the "Purchase and Sale Agreement BetweenCRMX-115, KBH INVESTMENTS, LLC and the City of Dublin," dated August I, 2006, and the Downtown Traffic Impact Fee Administrative Guidelines, the parties hereto desire to set forth their agreement that CITY will, in exchange for OWNER'S guaranteeing the completion of the Improvements in accordance with the terms hereo( reimburse OWNER for the amount of the Downtown Traffic Impact Fees previously paid ($350,628.07) and provide a credit for the excess contribution (in the amount of $29,483.94) in accordance with the Downtown Traffic Impact Fee Administrative Guidelines, NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties hereto agree as follows: Section 1. Completion Time. OWNER will commence construction of the Improvements within twenty (20) days folloWing the date on which CITY executes and delivers an executed copy of this Agreement to Owner. OWNER shall complete The Improvements within a reasonable period of time, not to exceed ninety (90) calendar days, after execution of this Agreement by Owner, provided that, once construction of the Improvements has begun, OWNER shall diligently pursue the completion of the Improvements. Section 2. Estimated Cost of Improvements. For purposes of this Agreement, the estimated cost of constructing the Improvements and the amount to be used for bonding is agreed to be $345,795.00 per the Bond Estimate completed by David R. Duke and Associates, Inc., based on actual bids for the work, dated February 2,2007, plus the cost of Engineering Design of$34,317.00, for a total of$380,112.00. Section 3. Bonds Furnished. Prior to commencing construction of the improvements, OWNER shall furnish CITY with the following security in a form satisfactory to the CITY Attorney: a. Faithful Performance. Either a cash deposit, a corporate surety bond issued bya 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 estimates set forth in Paragraph 2 and sufficient to 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 AGREEMENT for IMPROVEMENTS and TlF CREDITS Dublin Honda Improvements Agreement Page 2 of 12 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 estimates set forth in Paragraph 2 and sufficient to assure CITY that OWNER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor. CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisions of Chapter 5 of the Subdivision Map Act. Section 4. Insurance Required Prior to commencing construction of the Improvements, OWNER shall obtain, or cause to be obtained and filed with CITY, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, or his designee, as to form, amOtmt and carrier. Prior to the commencement of work under this Agreement, OWNER's general contractor shall obtain, or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, as to form, amount and carrier. OWNER shall not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for OWNER and OWNER'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. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: (i) 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 000 1. ) (ii) Insurance Services Office form number CA 000 I (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. (iii) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. OWNER shall maintain limits no less than: (i) General Liabilitv. $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or otherform with a general aggregate limit is used, either the general aggregate limit shall apply separately to this projectllocation or the general aggregate limit shall be twice the required occurrence limit. (ii) Automobile Liabilitv. $1,000,000 combined single limit per accident for bodily injury and property damage. AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 3 of 12 (iii) Workers' Compensation and Emplovers 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. Deducnbles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by CITY. At the option of CITY, either the insurer shall reduce or eliminate such deducnbles or self-insured retentions as respects CITY, its officers, officials and employees; or OWNER 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: (i) General Liability and Automobile Liability Coverages. (a) CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of OWNER; products and completed operations of OWNER; premises owned, occupied or used by OWNER; or automobiles owned, leased, hired or borrowed by OWNER The coverage shall contain no special limitations on the scope of the protection afforded to CITY, its officers, officials, employees or volunteers. (b) OWNER's insurance covemge shall be primary insurance as respects CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees or volunteers shall be excess of OWNER'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 CITY, its officers, officials, employees or volunteers. (d) The OWNER'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. (ii) Workers' Compensation and Emplovers Liability Coverage. The insurer shall agree to waive all rights of subrogation against CITY, its officers, officials, employees and volunteers for losses arising from work performed by OWNER for CITY. AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 4 of 12 (iii) 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 CITY. (a) Acceptability ofInsurers. Insurance is to be placed with insurers with a Bests' rating of no less than A: VII. (b) Verification of Coverage. OWNER 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 CITY before work commences. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. (c) Subcontractors. OWNER and/or OWNER'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. Section 5. 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, OWNER guarantees all work executed by OWNER and/or OWNER'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 in accordance with the Plans and Specifications and free of all defects of workmanship and materials for a period of one (I) year after acceptance of the entire work by CITY. OWNER 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-year guarantee period without expense or charge of any nature whatsoever to CITY, provided that CITY gives OWNER written notice of any such defect OWNER further covenants and agrees that when defects in workmanship and materials actually appear during the one-year guarantee period, and have been corrected, the guarantee period shall automatically be extended for the corrected items for an additional year from the date of the corrections to insure that such defects have actually been corrected. In the event the OWNER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days time or such longer time period as agreed to in writing by the City Engineer, after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 5 of 12 and OWNER shall pay to CITY on demand all reasonably incurred costs and expenses of such repair, provided that, if the defect in question cannot reasonably be repaired within the thirty (30) day period, OWNER shall be deemed to be in compliance with its guarantee obligations so long as OWNER begins repairing the defect within the third (30) day period and diligently prosecutes such repair thereafter to completion 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 shan have the right to immediately repair, or cause to be repaired, such defect, and OWNER shall pay to CITY on demand all reasonably incurred 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 to correct any defect described in this Section 5 after OWNER fails to comply with the conditions of the foregoing guarantee within the time periods described above, OWNER shall pay, in addition to actual costs and expenses of such repair or work, twenty- five percent (25%) 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. Section 6. InsPection of the Work. OWNER shall guarantee free access to CITY through its City Engineer and his 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 which are not in accordance with the Plans and Specifications, and all such materials and or work shall be removed promptly by OWNER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the Plans and Specifications. Section 7. Agreement Assignment. Neither party shall assign this Agreement without the written consent of the non-assigning party, which consent shall not be unreasonably withheld. Section 8. Abandonment ofW ork. Neither OWNER nor any of OWNER's agents or contractors are or shall be considered to be agents of CITY in connection with the performance of OWNER's obligations under this Agreement. If OWNER 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 OWNER should be adjudged as bankrupt, or should make a general assignment for the benefit of OWNER's creditors, or if a receiver should be appointed, or if OWNER, or any of OWNER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its City Engineer may serve written notice on OWNER and OWNER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of OWNER After such written notice from CITY to OWNER, OWNER shall have fifteen (15) days in which to cure AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 6 of 12 the breach, provided that if the breach in question is not one that can be reasonably cured within a fifteen (15) day . period, OWNER'S surety shall not have a duty to take over and complete the Improvements so long as OWNER has commenced curing such breach within the fifteen (15) day period and diligently works to cure such breach thereafter. Notwithstanding the foregoing, no fifteen (15) day cure period shall be provided to OWNER if OWNER is adjudged as bankrupt, if there is a general assiginnent for the benefit of OWNER'S creditors, or if a receiver is appointed for OWNER In the case that OWNER is adjudged as bankrupt, the OWNER's surety shall have the duty to take over and complete the Improvements. In the event that OWNER does not cure the breach, or begin diligent work to cure the breach, within the fifteen (15) day period, OWNER's surety shall have the duty to take over and complete the Improvements herein specified; provided, however, that if the surety, within fifteen (15) days after the expiration of the :first fifteen (15) day period, does not give CITY written notice of its intention to take over the performance of the contract, and does not commence performance thereof within (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 OWNER, and OWNER's surety shall be liable to CITY for any damages and/or 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 OWNER as may be on the site of the work and necessary therefor. Section 9. 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: Mark Lander, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 AND Paul Rankin Administrative Services Director City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to OWNER shall be addressed as follows: KBH Investments, LLC Attn: Kenneth C. Harvey 385 Castle Crest Road Alamo, CA 94507 AND David R Duke and Associates, Inc. Attn: David R Duke 221 West Oak Lodi, CA 95240 Notices required to be given surety of OWNER shall be addressed as follows: Travelers Casualty and Security of America 11070 White Rock, Road, #130 Rancho Cordova, CA 95670 AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 7 of 12 . 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. Concurrently with the execution of this Agreement, OWNER has executed and has caused to be aclrnowledged an abstract of this Agreement. OWNER agrees CITY may record said abstract in the Official Records of Alameda County. Section 10. Safety Devices. OWNER shall provide and maintain such guards, watchmen, fences, barriers, regulatoI)' signs, warning lights, and other safety devices adjacent to and on the site of the Improvements as may be necessary to prevent accidents to the public and damage to the property. OWNER shan furnish, place, and maintain such lights as may be necessaI)' 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, regulatoI)' 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 ofthe work by the OWNER, and the entire site left clean and orderly. Section 11. Acceptance of Work and Easement. Upon notice of the completion of the Improvements and the delivery of a set of final as-built mylar plans with electronic file to CITY by OWNER, CITY, through its City Engineer or his designated repr~entative, shall examine the work without delay, and, if found to be in accordance with the Plans and Specifications and this Agreement, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify OWNER or his designated agents of such acceptance. Concurrently with the notice of completion, OWNER shall dedicate to CITY any right of way and easements deemed necessary by the City Fngineer for the maintenance ofthe Improvements, and, at acceptance of the Work, CITY shall also accept any right-of. way and maintenance easement dedication. Section 12. Patent and Copyright Costs. In the event that the Plans and Specifications require the use of any material, process or publication which is subject to a duly registered patent or copyright, OWNER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. Section 13. Alterations in Plans and Specifications. Any alteration or alterations made in the Plans and Specifications 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 given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. OWNER shall only be required to construct the Improvements in accordance with the original Plans and Specifications unless the parties hereto agree otherwise in writing. AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 8 of 12 Section 14. Section 15. Liability. a. OWNER Primarilv Liable. OWNER hereby warrants that the construction of the Irnp~ovements will be performed in a proper workmanlike manner in accordance with the Plans and Specifications, subject only to changes thereto agreed upon by CITY and OWNER in writing. OWNER 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 eveI)' kind, nature and description, directly or indirectly arising from an act or omission of OWNER, its employees, agents, or independent contractors in connection with OWNER'S actions and obligations hereunder; provided as follows: (i) That CITY does not, and shall not, waive any rights against OWNER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by OWNER, of any of the insurance policies described in Paragraph 3 hereof. (ii) That the aforesaid hold harmless agreement by OWNER shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this paragraph, regardless of whether or not CITY has prepared, supplied, or approved of plans and/or specifications for the subdivision, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. b. Design Defect OWNER shall not be liable for any design defects in tlle work of Improvements. c. 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 OWNER's surety on the bonds provided under Section 3. Right of Entry. CITY grants to OWNER a right of entry to enter upon the property within Dublin Boulevard with such persollilel, equipment, machinery, vehicles and materials as may be necessary for the sole purpose of construction of The Improvements pursuant to this Agreement. This right of entry shall be effective upon the date of this Agreement and shall terminate on upon acceptance of the Improvements by the City. There shall be no payment for the right of entry. OWNER's obligation to indemnifY, defend and hold CITY harmless, as described in Section 15, shall be applicable to any acts or omissions of OWNER, its contractors, subcontractors and agents, AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 9 of 12 in connection with this right of entty. Section 16. Indemnification and Waiver. OWNER shall defend CITY, its officers, employees and officials, against any claims or actions (including declaratory or injunctive relief) concerning OWNER's construction of the Improvements on OWNER's property and shall indemnifY and hold CITY harmless from any damages, charges, fees or penalties that may be awarded or imposed against CITY and/or OWNER in connection with, or on account of: OWNER's construction of the . Improvements and/or CITY's failure to enforce or comply with any applicable law~. Section 17. Downtown Traffic Impact Fees Reimbursement and Credit. CITY shall reimburse OWNER for its prior payment of Downtown Traffic Irrpact Fees in the amount of $350,628.07 within 20 calendar days of the City Council's approval of this Agreement Upon OWNER'S furnishing of the bonds required by Section 3 to City, OWNER will also be entitled to a credit in accordance with the CITY's Downtown Traffic Impact Fee Administrative Guidelines in the amount of $29,483.94. Such credit shall be in accordance with the terms and provisions of the CITY's standard credit/reimbursement agreement, as required by the CITY's guidelines. Section 18. Miscellaneous Provisions a. Entire Agreement This Agreement contains, and is intended as, a complete statement of all the terms and the arrangements between the parties hereto with respect to the matters provided for therein, and supersedes any previous agreements and understandings between such parties with respect to those matters. b. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made in and to be wholly performed in such state. c. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect d. Binding Effect; No Assignment Except as otherwise expressly provided by the Agreement, the Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Nothing in this Agreement, express or implied, shall create any third party beneficiary rights in any person not party to this Agreement' e. Amendments. This Agreement maybe amended, supplemented or modified, and any provision hereof may be waived, only pursuant to a written instrument making specific reference to this Agreement, signed by each of the parties hereto. f Counterparts. This Agreement may be executed in any number of counterparts, each of AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page 10 of 12 which shall be deemed an original, but all of which together shall constitute one and the same instrument Section 19. Recitals . The foregoing Recitals are true and correct and are made a part hereof. [EXECUTION PAGE FOLLOWS] AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement Page II of 12 IN WITNESS WHEREOF, the parties hereto have execu this Agreement in duplicate at Dublin, California, the day and year first above written. . CITY OF DUBLIN: By: Janet Lockhart, 11ayor Date: ATTEST: By: Fawn Holman, City Clerk Date: Approved as to Form: By: Elizabeth H. Silver, City Attorney Date: AGREEMENT for IMPROVEMENTS and TIF CREDITS Dublin Honda Improvements Agreement n th arvey Da e: ~ '?--' iTbo 1 Page 12 of 12