HomeMy WebLinkAbout4.04 TDA Tr7279 Greenbriar CITY CLERK
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 18, 2003
SUBJECT: Amendment to Tract Developer Agreement, Tract 7279 (Tassajara
Creek Phase II - Greenbriar by GHC Investments, LLC)
Report Prelvared by: Lee S. Thoml)son, Public Works Director
ATTACHMENTS: 1) Resolution Amending the Tract Developer Agreement
for Tract 7279, together with Exhibit "A" of Resolution
2) Original Tract Developer Agreement with GHC Investments,
LLC, for Tract 7279 improvements
3) Location Map
RECOMMENDATION:,,n. _~,/ Adopt Resolution extending the completion date of the Tract
/k, btff`°Developer Agreement for Tract 7279 one additional year, or
until
April 16, 2004
FINANCIAL STATEMENT: GHC Investments, LLC has provided a Performance Bond and a
Labor and Materials Bond to guarantee construction of public right-
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 Council, via Resolution No. 178-01,
authorized the Mayor to execute a Tract Developer Agreement with GHC Investments, LLC, for public
right-of-way and site improvements associated with Tract 7279. This subdivision is comprised of 46
single-family and clustered units located in Eastern Dublin, west of Tassajara Road. The Agreement
required the developer to complete the improvements by April 16, 2003.
Although the improvements are nearing completion in accordance with the approved plans and
specifications, certain improvements will not be finished prior to the expiration date of the Agreement
on April 16, 2003.
The City Engineer 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 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 extending the completion date of the Tract
Developer Agreement for Tract 7279 one additional year, or until April 16, 2004.
COPIES TO: Partick Costanzo, Jr., GHC Investments
4.,/
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A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN 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; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 548 days following the date of execution;
and
WHEREAS, since the improvements will not be complete within the timeframe anticipated in
the original AGREEMENT, it is in the best interest of the CITY to extend the completion date of the
AGREEMENT by one year, or until April 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 Amendment (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 the amendment.
PASSED, APPROVED AND ADOPTED this 18th day of March, 2003.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
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EXHIBIT "A" OF
RESOLUTION NO. -03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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 Agreemem (hereinafter referred to as
AGREEMENT) on October 16, 2001; and
WHEREAS; Section"l 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 DEVELOPER has agreed to amend the AGREEMENT to extend the completion
date by 365 additional days or until April 16, 2004; 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
365 days or until April 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: Executive Vice President
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CiTY OF DUBLIN .
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this 16th day of October, 2001, by and
between the CITY of Dublin, a municipal'corporation, hereinafter referred to as "CITY", and
GHC Investments, LLC, a Delaware limited liability company, hereinafter referred to as
"DEVELOPER".
RECITALS
WHEREAS, it has been determined by the CITY Council of the CITY of'Dublin, State
of California, 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 Subdivision Map Act of the State of California, the Subdivision Ordinance
of the CITY, and those certain plans and specifications for said development entitled
"Improvement Plans, Tract 7279, Tassajara Creek I1," prepared by RuggeH, Jensen,
Azar and Associates, dated August 22, 2001, approved by CITY on September 19, 2001,
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 ImprOvements 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, in 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 thirty (30) days
following the date on which 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 shall furnish CITY
with a complete and reproducible set of final as-built plans of The Improvements, including
any authorized modifications.
2. Estimated Cost of Improvements.
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 secured.
-3. Bonds Furnished.
Concurrently with the execution of this Agreement, DEVELOPER 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
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 per cent (100%)'of the
estimate 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 and legally licensed to conduct a 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 CITY, 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 instrument or deposit required herein shall conform with the provisions of
-Chapter 5 of the Subdivision Map Act.
4. 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 Administrative Services Director 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 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 car~ier. 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.
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 In.surance.
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, 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 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 as respects: 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. The coverage shall contain no special limitations
on the scope of the protection afforded to the CITY, its officers,
officials, employees or volunteers.
b) The DEVELOPER's insurance coverage shall be.primary
insurance as respects 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) Ail 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:VlI.
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'sgeneral
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 requiremenis stated herein.
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, 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 initial
acceptance of the entire work by CITY. 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-
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 one-year guarantee period, and have been corrected,
the guarantee 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 notbe obligated, to repair or obtain the repair of the defect, and
DEVELOPER shall pay to CITY on demand ali 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
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
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, 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 (30)
days from the date of billing for such work or repairs.
6. Inspection of the Work.
DEVELOPER shall guarantee free access to CITY through its Public Works
Director/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
DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict
accordance with the improvement plans and specifications.
7. Agreement Assignment.
This Agreement shall not be assigned by DEVELOPER without the written consent of
8. Abandonment of Work.
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.
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 D.EVELOPER 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 complete 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 oth'er method CITY may deem advisable, for the acCount and at the
expense of DEVELOPER and DEVELOPER's surety shall be liable to CITY for any 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 DEVELOPER as
may be on the site of the work and necessary therefor.
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 of Dublin
Public Works Department
100 Civic Plaza
Dublin, CA 4568
Attn: Lee Thompson
Notices required to be given to DEVELOPER shall be addressed as follows:
GHC Investments, LLC ~
C/o Greenbriar Homes Communities, Inc.
.4340 Stevens Creek E~ivd., Suite 240
San Jose, CA 95129
Attn: Patrick Costanzo, Jr.
Notices required to be given surety of DEVELOPER shall be addressed as follows:
Developers Surety and ~ndemnity Company
17780 Fitch, Suite 200
Irvine, CA 92614
Attn: Richard S. Svec
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, DEVELOPER has executed and
has caUsed to be acknowledged an abstract of this Agreement. DEVELOPER a~grees 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 CITY, the use of any or all
streets and improvements within the work to be performed under this Agreement shall be at
the sole and exclusive risk of DEVELOPER~ The issuance of any building or occupancy
permit by CITY for dwellings located within 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 CITY.
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 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,
11. Acceptance of Work.
Upon notice of the completion of all tract work and the delivery 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 and this Agreement, shall recommend acceptance of the
work to the City Council and, upon such acceptance, shall notify DEVELOPER or his
designated agents of such acceptance.
12. Patent and Copyright Costs.
in 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 indemnify CiTY from any fees, costs or litigation expenses, including
attorneys' fees and court costs, which ma.y result from the use of said patented or copyrighted
material, process or publication.
13. Alterations in Plans and Specifications.
Any alteration or alterations made in the plans and specifications which are a part of
this 'Agreement 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 Civit 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 or omission of DEVELOPER,
its employees, agents, or independent contractors in connection with DEVELOPER'S
actions and obligations hereunder; 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 hereof.
2) That the aforesaid hold harmless agreement by DEVELOPER shall
apply to all damages and claims for damages of every kind suffered, or alleged
to have been suffered, by reason of any of the aforesaid operations referred to
in this paragraph, regardless of whether or not CITY has prepared, supplied, or
approved of plans and/or specifications for the 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.
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 following acceptance by the CITY of the 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 reasonable 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 3.
15. Recitals.
The foregoing Recitals are true and correct and are made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate at Dublin, California, the day and year first above written.
By: cayor
ATTEST:
GHC INVESTIVIENTS, LLC
A Delaware limited liability company
By: Greenbriar Homes Communities, Inc,
A California Corporation, Its Manager
P'~trick ~ostar~, ~r.
Executive Vice President
EHS:rja
May 4, 1999
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