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HomeMy WebLinkAboutItem 4.05 Community Nature Park Lennar Homes STAFF REPORT CITY CLERK File #600-60 CITY COUNCIL DATE:December 15, 2015 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Approval of Park Improvement Agreement for the Subarea 3 Community Nature Park Prepared by: Meghan Tiernan, Facilities Development Manager EXECUTIVE SUMMARY: The City Council will consider a Park Improvement Agreement with Lennar Homes of California, Inc. to construct the 10.75-acre community nature park as identified in the Eastern Dublin Specific Plan within the Subarea 3 development. FINANCIAL IMPACT: No net financial impact to the City. All costs associated with the Improvement Agreement will be borne by the Developer, Lennar Homes of California, Inc., with the improvements being credited against the City’s Community Nature Park Improvement fee credits under the Public Facilities Fee Program. RECOMMENDATION: Resolution Staff recommends the City Council adopt the Approving the Improvement Agreement with Lennar Homes of California, Inc. for the Subarea 3 Community Nature Park. Submitted By Reviewed By Public Works Director Assistant City Manager DESCRIPTION: Lennar Homes of California, Inc. owns certain real property consisting of approximately 64- acres of land at the northwest corner of Dublin Boulevard and Fallon Road (APN: 985-0027- 012) on which it has approval for a residential development. On June 16, 2015, the City Council approved the Final Map and Improvement Agreement and accepted parkland dedication in-lieu credits and dedication of park land for park land dedication requirements for Tract 8171, Dublin Ranch Subarea 3, Phase 1 (Lennar Homes of California). Lennar Homes of California, Inc. will dedicate a 10.75-acre Community Nature Park within Tract 8171 to satisfy Community Nature Park Land dedication obligations, for which it will receive ITEM NO. 4.5 Page 1 of 2 Community Nature Park Land credits for a portion of the dedication under the City’s Public Facilities Fee Program. In addition, Lennar Homes will develop the 10.75-acre community nature park with the developer’s cost for completing the improvements being credited against the City’s Community Nature Park Improvements fee credits under the Public Facilities Fee Program. The City intends to accept Lennar Homes’ offer of dedication of the land and improvements in consideration for Lennar Homes’ satisfactory performance of the terms and conditions as outlined in the Improvement Agreement (Attachment 2). The estimated cost of construction the improvements as required by the Improvement Agreement as adjusted for inflation is agreed to be for a fixed limit in the amount of is $500,000. Staff has prepared a Resolution Approving the Improvement Agreement with Lennar Homes of California, Inc. for the Subarea 3 Community Nature Park (Attachment 1). NOTICING REQUIREMENTS/PUBLIC OUTREACH: A copy of the Staff Report was sent to Lennar Homes of California, Inc. ATTACHMENTS: 1. Resolution Approving the Improvement Agreement with Lennar Homes of California, Inc. for the Subarea 3 Community Nature Park 2. Exhibit A to Attachment 1 – Improvement Agreement Page 2 of 2 RESOLUTION NO. XX - 15 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING THE IMPROVEMENT AGREEMENT FOR THE SUB-AREA 3 COMMUNITY NATURE PARK WHEREAS, Lennar Homes of California, Inc. (“Developer”) owns certain real property consisting of approximately 64-acres at the northwest corner of Dublin Boulevard and Fallon Road (APN: 985-0020-0012) on which it is pursuing a residential development project; and WHEREAS, the Developer will dedicate 10.75-acre of Community Nature Park within Tract 8171 to satisfy Community Nature Park Land dedication obligations, for which it will receive Community Nature Park Land credits under the City’s Public Facilities Fee Program; and WHEREAS, the Developer and the City have proposed to enter into an Improvement Agreement for Sub-Area 3 (Community Nature Park Site) to develop the 10.75-acre community nature park with the Developer’s cost for completing the improvements being credited against the City’s Community Park Improvement credits under the City’s Public Facilities Fee Program; and WHEREAS, said Improvement Agreement is secured by a bond furnished after execution of the Agreement and prior to issuing credits for the improvements, conditioned upon faithful performance of said Agreement; and WHEREAS, said Improvement Agreement is secured by a bond furnished by after execution of the Agreement and prior to issuing credits for the improvements, conditioned upon payment for labor performed or materials furnished under the terms of the said Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve an Improvement Agreement for the Sub-Area 3 Community Nature Park with Lennar Homes of California, Inc., attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED this 15th day of December, 2015, by the following vote: AYES : NOES : ABSENT : ABSTAIN : ______________________________ Mayor ATTEST : _________________________________ City Clerk ATTACHMENT 1 IMPROVEMENT AGREEMENT FOR SUBAREA 3 (COMMUNITY NATURE PARK SITE) THIS IMPROVEMENT AGREEMENT (this “Agreement”) is made and entered in the City of Dublin on this 15th day of December, 2015 by and between the City of Dublin, a Municipal Corporation (hereafter "City") and Lennar Homes of California, Inc., a California Corporation (hereafter "Landowner”). City and Landowner are hereinafter collectively referred to as the “Parties.” WITNESSETH: WHEREAS, Landowner owned, and still owns portions, of certain real property (“the Property”) consisting of approximately 64-acres of land generally northwest of the intersection of Dublin Boulevard and Fallon Road, on which it is pursuing a residential development project (“the Project”); and WHEREAS, in pursuit of the Project, Landowner and City entered into a Development Agreement with the City, dated March 4, 2014, recorded on June, 4, 2014 as Instrument No. 201434796 of the Official Records of Alameda County (“Development Agreement”); and WHEREAS, Landowner obtained the necessary approvals develop up to 437 attached and detached residential dwelling units on the site, grade the site, extend utilities, and complete related improvements. The site includes 38.0-acres of medium density residential, 7.5-acres of medium-high density residential, 14.5-acres of rural residential/agriculture, 2.0-acres for stream corridor, and 2.0-acres of neighborhood park; and WHEREAS, the Landowner and the City entered into a non-binding Letter Agreement, dated March 6, 2015 (“Letter Agreement”) to develop 10.75-acres of the rural/residential agricultural parcels as a Community Nature Park; and WHEREAS, the Letter Agreement anticipated that, following certain related actions by the City described below, the City and Landowner would enter into a Park Improvement Agreement, that requires developer to improve and dedicate 10.75 acres of Community Nature Park to the City, for which it will receive Community Nature Park Land (a portion thereof) and Community Nature Park Land Improvement credits under the City’s Public Facilities Fee program; and WHEREAS, on April 7, 2015, the City Counciladopted a Resolution Approving the initiation of a General Plan and Eastern Dublin Specific Plan Amendment Study to change the land use designation on 10.75-acres within Subarea 3 of Dublin Ranch from Rural Residential/Agriculture to Parks/Public Recreation; and WHEREAS, on October 6, 2015, the City Council adopted a Resolution Approving General Plan and Eastern Dublin Specific Plan Amendments to change the 10.75-acre site with Dublin Ranch Subarea 3 located south of Central Parkway and north of Dublin Boulevard between Lockhart Street and Fallon Road from Rural/Residential Agriculture (RR/A) to Parks/Public Recreation (P/PR: and 1 WHEREAS, City and Landowner now desire that Landowner improve the 10.75- acre Community Nature Park with the Developer’s cost for completing the improvements being credited against the City’s Community Nature Park Improvement fee credits under the Public Facilities Fee Program, as specified herein; and WHEREAS, Landowner agrees to satisfactorily complete the improvements within the time hereafter specified, and the City intends to accept Landowner’s offer of dedication of the land and improvements in consideration for Landowner’s satisfactory performance of the terms and conditions of this Agreement; and WHEREAS, except as otherwise defined herein, all capitalized terms used but not defined in this Agreement shall correspond to the defined terms in the Development Agreement. NOW, THEREFORE, City and Landowner agree as follows: 1. Land Dedication. The Landowner, concurrently with the execution of this Agreement, has delivered an offer of dedication to the City, the acceptance of which would convey to the City the approximately 10.75-acre community park parcel (designated Parcel “C” of the Final Map of Tract 8171) (the “Community Nature Park”). The City will accept the dedication upon its acceptance of the Improvements pursuant to Section 4. 2. Construction Documents. a) City shall cause the preparation of construction plans and specifications - for the Improvements, as defined in Section 2(b) below (“Construction Documents”). The Construction Documents shall be consistent with the Community Nature Park Standards in the Parks and Recreation Master Plan, as approved by the City Council in May 2015, as shown in Exhibit “A,” attached hereto and incorporated herein, and with the City’s standards for park development. The Construction Documents shall be subject to review and approval by the Landowner and other applicable City departments no later than twelve (12) months following of dedication of the land as set forth in Section 1. The parties agree that as necessary, the scope of the improvements designed and required by this Agreement will be managed to ensure the cost of those improvements is consistent with the fee credits provided to Landowner by this Agreement. b) The Construction Documents shall include, but will not be limited to, construction plans and specifications for improvements included and depicted in the SDR approval for the Subarea 3 project (Resolution No. 66-14) and the following amenities (the “Improvements”):  Prefab Restroom adjacent to the Neighborhood Square, including water & sewer connections, and the cost for larger electrical service;  Vehicular concrete paving for maintenance access through the park to the restroom; and  Enhancing the trail from the corner of Central and Lockhart to the Neighborhood Square to be an ADA accessible path of travel 2 (versus a recreational trail) by using NaturePave pavement surfacing. Concurrently with the execution of this Agreement, Landowner has deposited $60,000 in the City’s Deposit Account. These funds are intended to cover the cost of having Construction Documents prepared and other costs as set forth in Section 8 below, and shall be included in the fixed amount of $500,000 described in Section 11 below. In the event that the City anticipates that such costs will exceed the amount deposited pursuant to this section, the City may request an additional deposit, which Landowner shall make within 30 days of the request. Any funds remaining in the Deposit Account at Project closeout shall be returned to Landowner. 3. Completion Time. Landowner will commence construction of the Improvements within 60 days following the delivery of the City’s Construction Documents and shall complete all Improvements no later than 14 months following delivery of the City’s Construction Documents unless the completion date is extended by the City Manager. Time is of the essence in this Agreement. Upon completion, Landowner shall furnish City with a complete and reproducible set of final as-built plans and AutoCAD copies of the Construction Documents for the Improvements, including any City authorized modifications. 4. Acceptance of Work. Upon notice of completion of all Improvements and delivery of a set of final as-built plans copies of Construction Documents to City by Landowner, the City shall examine the Improvements without delay. If the 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 Council, and, upon such acceptance, shall notify Landowner or its designated agents of such acceptance. City shall only accept the Improvements at 100% completion. 5. Bid Documents. Landowner shall prepare the bid documents for the Community Nature Park. The City shall review and approve the bid documents prior to the issuance of a notice of, and invitation to, bid by Landowner. Bids shall be lump sum with an itemized unit summary to be used for additions and deletions only. The City shall also review the bids received by Landowner and shall approve Landowner’s selection of the most appropriate bid prior to the award of contract. All bids shall include prevailing wage rates. The City shall have ten (10) working days to review the bids and, in the event the City concludes the bids are unacceptably high and not to budget, to notify Landowner of required modifications to the Improvements or the need to solicit additional bids. The City shall provide Landowner with an opportunity to review and comment on any proposal by the City to modify the Improvements and shall give such comments fair consideration. 6. Inspection of the Work. Landowner 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 which are not in accordance with the plans and specifications, and all such materials and or work shall be removed promptly by Landowner and replaced to 3 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. Landowner 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 7 of this Agreement. 7. Change Orders. Landowner shall submit a written request for approval of any change orders to the City at least 15 working days prior to proceeding with any change order. Landowner shall not issue any change orders on such construction contract without first obtaining City’s written consent. Landowner acknowledges the failure to obtain such written consent from the City will result in Landowner’s sole responsibility to pay for such change orders without reimbursement or credit from the City. Any change in design in the Improvements must have City’s pre-approval. 8. Other Costs. City and Landowner acknowledge that City and Landowner incur various costs during park development beyond construction document preparation and improvement construction. Such costs include but are not limited to consultant construction assistance (environmental, inspection, engineering), storm water pollution prevention, utility bills (electric, water), City inspections, permits and fees, design/drafting fees, fencing, maintenance and miscellaneous costs such as photocopying and printing. Landowner shall not enter into contracts for such costs or otherwise procure such services without obtaining City consent. Landowner will provide City with copies of any contracts and detailed descriptions of scope of work to be performed. Landowner acknowledges failure to obtain such written consent from the City will result in Landowner’s sole responsibility to pay for such other costs without reimbursement or credit from the City. 9. Payments. Landowner shall be responsible for all payments associated with the Improvements. This includes but is not limited to, contractors work, electric and water bills, storm water pollution prevention, consultant construction assistance, City inspections, permits and fees. Landowner shall provide to City a monthly accounting summary outlining project costs to date. Landowner will include copies of invoices paid. Landowner will provide copies of cancelled checks if requested by City. 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, Landowner guarantees all work executed by Landowner and/or Landowner’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 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 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 4 to: play equipment, site furnishings and mechanical equipment. Landowner 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. Landowner 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 insure that such defects have actually been corrected. In the event the Landowner shall fail to comply with the conditions of the foregoing guarantee within ten (10) days’ time, 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, and Landowner 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 Landowner 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 as provided herein, Landowner 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. Estimated Cost of Improvements. The estimated cost of constructing the Improvements required by this Agreement as adjusted for inflation is agreed to be for a fixed limit in the amount of $500,000 as more fully set out in Exhibit “B” entitled “Complete Project Cost Estimate – Sub Area 3 Community Nature Park Improvements” and incorporated herein. City and Landowner acknowledge that the actual construction costs of the Improvements may vary from the estimated costs. The Parties will evaluate the estimated costs three times as follows: (1) at the time of execution of this Agreement, (2) prior to development of the Construction Documents, and (3) prior to bid. The Improvement costs that will be subject to credit in accordance with Sections 13 and 14 below shall consist of the bid amounts as approved by City pursuant to Section 5 above and any change orders approved by City pursuant to Section 7 above. This project shall be constructed on a prevailing wage scale as required by the State of California. 12. Bonds Furnished. Concurrently with the execution of this Agreement, Landowner shall furnish City with the following security in a form satisfactory to the City Attorney. Landowner shall increase or decrease the amount of the security if project costs increase or decrease pursuant to section 11. 5 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. 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 Landowner’s contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefore. 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. a. For Improvements. In consideration for the Improvements to be constructed by Landowner, City shall grant Community Nature Park Improvement Fee credits as calculated according to the City’s Public Facilities Fee Program. Value of the improvement credit will be the lesser of (a) the estimated costs of the Improvements, or (b) the pro-rated value of the Improvements using the standard cost measurement in the Public Facilities Fee. Fee credits will be provided upon receipt of security for the Improvements as set forth in Section 12 above. b. For Land Dedication. The value of land credit will be based on the actual size of the parcel dedicated less 3.7-acres multiplied by the land value for community nature parkland specified in the Public Facilities Fee. In accordance with Public Facilities Fee requirements, fee credits will be provided upon dedication of the land. 14. No Credit for Excess Costs. Costs are not subject to reimbursement by City to Landowner to the extent that actual construction, design, and related costs, as approved by City, total more than the above fee credit. 15. Obligations Arising from Agreement. Neither the General Fund, nor any other fund or monies of City, except the Public Facilities Fee Community Nature 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. Landowner’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. Liability. A. Landowner Primarily Liable. Landowner 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 a proper manner. 6 Landowner 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 of every kind, nature and description,(collectively “Liability”) directly or indirectly arising from an act or omission of Landowner, its employees, agents, or independent contractors in connection with Landowner’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 Landowner 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 19 hereof. 2) That the aforesaid hold harmless agreement by Landowner 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 (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 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 Landowner’s surety on the bonds provided under paragraph 12. 5) Third Party Claims. With respect to third party claims against the Developer, the Developer waives any and all rights of any type to express or implied indemnity against the City. 17. Insurance Required. Concurrently with the execution hereof, Landowner shall obtain or cause to be obtained and filed with the City, all insurance required 7 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, Landowner'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. Landowner shall not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for Landowner and Landowner'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 Insurance. B. Minimum Limits of Insurance. Landowner 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, Landowner 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. 8 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 Landowner; products and completed operations of the Landowner; premises owned, occupied or used by the Landowner; or automobiles owned, leased, hired or borrowed by the Landowner. 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 Landowner'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 Landowner'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 Landowner'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 Landowner 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. Landowner 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. Landowner and/or Landowner'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. 18. Assignment of Agreement. This Agreement shall not be assigned by Landowner without the written consent of City, which shall not be unreasonably withheld. 9 19. Landowner Not an Agent. Neither Landowner nor any of Landowner’s agents or contractors are or shall be considered to be agents of City in connection with the performance of Landowner’s obligations under this Agreement. 20. Abandonment of Work. If Landowner 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 Landowner should be adjudged as bankrupt, or should make a general assignment for the benefit of Landowner’s creditors, or if a receiver should be appointed, or if Landowner, or any of Landowner’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 Landowner and Landowner’s surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of Landowner. In the event of any such notice of breach of this Agreement, Landowner’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 other method City may deem advisable, for the account and at the expense of Landowner and Landowner’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 Landowner as may be on the site of the work and necessary therefor. 21. 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 Landowner shall be addressed as follows: Don Larson, Vice President Lennar Homes of California 6111 Bollinger Canyon Road San Ramon, CA 94583 10 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, Landowner has executed, and has caused to be acknowledged, an abstract of this Agreement. Landowner agrees that City may record said abstract in the official records of Alameda County. 22. 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 Landowner. 23. Safety Devices. Landowner 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. Landowner 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 Landowner, and the entire site left clean and orderly. 24. 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. 25. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 26. Severability. 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 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. 27. 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. IN WITNESS WHEREOF, the City and Landowner have executed this Agreement, the day and year first above written. CITY OF DUBLIN a Municipal Corporation Dated: _________________ By: __________________________ Name: Christopher L. Foss 11 Title: City Manager ATTEST: By: ___________________________ Name: Caroline P. Soto, City Clerk Approved as to form By: __________________________ Name: John Bakker, City Attorney DEVELOPER LENNAR HOMES OF CALIFORNIA, INC. a California Corporation Dated: _________________ By: __________________________ Name: _______________________ Title: _________________________ 2443195.1 12