HomeMy WebLinkAbout4.4 Dublin Ranch Lennar Homesor
19 82
/ii � 111
DATE:
TO:
FROM:
SUBJECT
STAFF REPORT
CITY COUNCIL
March 15, 2016
Honorable Mayor and City Councilmembers
CITY CLERK
File #600 -60
Christopher L. Foss, City Manager "
Approval of the First Amendment to Tract Improvement Agreement, Tract 8171,
Dublin Ranch Subarea 3, Phase One (Lennar Homes of California, Inc.)
Prepared by Jayson Imai, Senior Civil Engineer
EXECUTIVE SUMMARY:
Lennar Homes of California, Inc. a California Corporation, and the City of Dublin previously
entered into a Tract Improvement Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase
One, dated June 16, 2015. Lennar has now executed and filed with the City of Dublin a First
Amendment to Tract Improvement Agreement, Tract 8171, Dublin Ranch Subarea 3, Phase
One. The amendment adds the design and improvement of median landscaping on Dublin
Boulevard and Central Parkway and sets the time of completion of improvements to two years
from the original agreement, or June 16, 2017.
FINANCIAL IMPACT:
There is no financial impact to the City by approving the First Amendment to the Tract
Improvement Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Approving the First Amendment
to the Tract Improvement Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One.
"ubmitted By
Public Works Director
DESCRIPTION:
'fl"eview6d By
Administrative Services Di `r for
Lennar Homes of California, Inc., a California Corporation (Lennar), the developer of Tract 8171,
Dublin Ranch Subarea 3, Phase One and the City of Dublin previously entered into a Tract
Improvement Agreement to guarantee certain improvements associated with Tract 8171. This
agreement was entered into to satisfy Conditions of Approval approved by Planning
Commission Resolution No. 14 -20 on April 29, 2014. The City Council approved this Tract
Improvement Agreement with Resolution No. 103 -15 on June 16, 2015.
Page 1 of 3 ITEM NO. 4.4
Section 1 of the Tract Improvement Agreement requires Lennar to complete the following
improvements prior to the issuance of the 100th Building Permit within Tract 8171:
• Frontage improvements (including sidewalk and stormwater treatment measures) along
Dublin Boulevard between Lockhart Street and Fallon Road
• Permanent/ temporary streambed corridor trail from the Lockhart Street/ Central Parkway
intersection south to the Dublin Boulevard/ Fallon Gateway entry
• Permanent/ temporary trail connecting the Tract 8171 Neighborhood to the streambed
corridor trail
• Permanent / temporary trail connecting the Tract 8171 Neighborhoods to the top of the
hill on Parcel C, Tract 8171 (lookout point)
• Temporary Sidewalk on the south side Dublin Boulevard from Lockhart Street to the
existing driveway at the western boundary of Fallon Gateway
The temporary sidewalk on the south side of Dublin Boulevard between Lockhart Street and
Fallon Gateway has been installed. Progress on the remaining improvements has been slowed
due to inclement weather. Also, after the Tract Improvement Agreement was approved, Parcel
C of Tract 8171, originally reserved as open space, was re- designated as a City natural
community park. As a result, Lennar is working with City staff to revise the design of the
required trail improvements in order to better integrate them into the design and layout of the
future City park.
Lennar has applied for Building Permits beyond the 100th unit and has requested that the City
amend the Tract Improvement Agreement. The amendment would allow for the continued
issuance of building permits and set the time to complete the improvements to two years after
the date of the Tract Improvement Agreement, which is June 16, 2017. The two -year time
period is consistent with other Tract Improvement Agreements within the City of Dublin.
In exchange for the amended agreement, Lennar has offered to design and install the median
landscape and irrigation improvements on Dublin Boulevard, between Lockhart Street and the
Fallon Gateway entrance, and on Central Parkway, between Lockhart Street and Fallon Road.
These improvements are in addition to improvements required as conditions of approval of the
tentative map. The median improvements are included in the Eastern Dublin Traffic Impact Fee
( EDTIF) program. Therefore, Lennar will receive EDTIF credits for the design and construction
of the improvements.
Staff has prepared a Resolution Approving the First Amendment to the Tract Improvement
Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One (Attachments 2 and 3).
NOTICING REQUIREMENTS /PUBLIC OUTREACH:
Public noticing occurred as part of the Tentative Map process for Dublin Ranch Subarea 3,
Phase One. A copy of this Staff Report has been provided to Lennar Homes of California.
ATTACHMENTS: 1. Reduced Copy of Final Map for Tract 8171
2. Request Letter from Lennar, dated March 9, 2016
3. Resolution Approving the First Amendment to Tract Improvement
Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One
Page 2 of 3
4. Exhibit "A" to Resolution, First Amendment to Tract Improvement
Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One
5. Tract Improvement Agreement for Tract 8171, Dublin Ranch
Subarea 3, Phase One, dated June 16, 2015
Page 3 of 3
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LENNAM
Andrew Russell
City Engineer
City ofDublin
March 9, 2016
Lennar Homes is seeking modification of the recently approved Tract Improvement Agreement forTract
Dl71(°Subarea3" Phase One).
The current Agreement requires the completion of certain improvements prior to issuance of the 1«nth
building permit on the project, Those improvements listed [m Section Iof the Agreement include:
Frontage improvements afong Dublin Boulevard between Lockhart Street and Fallon Road, streambed
corridor trail improvements from Lockhart/Central to Dublin Boulevard, a trail connection the
Neighborhood Park in Tract 8171 to the stream bed corridor trail, and trail improvements connecting
D171to the hl||om Parcel Clookout. The required temporary sidewalk on the south side mfDublin
Boulevard required by this section is complete.
We have encountered a variety of difficulties with the balance of the required improvements as we
approach the 1OD°`permit. The frontage improvements have been delayed bv significant rain fall ao
these frontages sit at the base of substantial Slopes that have caused water to collect in these areas
creating conditions not conducive to construction at this time. Additionally, after the subdivision was
approved, the open space parcel was designated as a City Park and we have been working with City staff
to revise the trail improvements to be compatible with the future City Park.
It is our intention to complete all of the required improvements, however the requirement that they be
completed by the rnnth permit has proven tnbeo substantial hardship on the project. Lennerimformally
requesting amendment of the Tract Improvement Agreement to eliminate the timing
requirement/constraint on these improvements, allowing instead forthern to be completed inthe
ordinary course of construction, of the project,
As consideration for this request/modification Lennar is prepared to design and install median landscape
in the Central Boulevard median from the pro 'ec1 frontage to, FaU|on Road and in the Dublin Boulevard.
Median for the project frontage to the entrance to Fallow Gateway (whemeex|mt[mgmedian
improvements already exist). This work would complete the median landscape on both Central Parkway
and Dublin Boulevard.
We remain committed to the successful com:pletion of the project and appreciate your consideration of
this request.
Sincerely
"
Brian Olin
Division, President
LennarHornes
`60ocammo Ramon, Ste sz5, San Ramon, cAs*sa^ Phone. y25r*z'nac^ Fax: yzs-2+z-o837
RESOLUTION NO. -16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE FIRST AMENDMENT TO TRACT IMPROVEMENT AGREEMENT
FOR TRACT 8171, DUBLIN RANCH SUBAREA 3, PHASE ONE
WHEREAS, the Owner, Lennar Homes of California, a California corporation, and the
City of Dublin previously entered into a Tract Improvement Agreement for Tract 8171, Dublin
Ranch Subarea 3, Phase One, to satisfy Conditions for Approval approved by Planning
Commission Resolution No. 14 -20 on April 29, 2014; and
WHEREAS, the City Council previously approved the Tract Improvement Agreement for
Tract 8171, Dublin Ranch Subarea 3, Phase One, with Resolution No. 103 -15 on June 16,
2015; and
WHEREAS, said Conditions of Approval required the Owner to enter into an Tract
Improvement Agreement to guarantee improvements associated with Tract 8171; and
WHEREAS, the Tract Improvement Agreement required certain improvements to be
completed prior to issuance of the 100th Building Permit within Tract 8171; and
WHEREAS, the Developer has requested that the completion time for those certain
improvement required prior to the issuance of the 100th Building Permit be revised such that
they are required at the same time the remainder of the tract improvements are required; and
WHEREAS, the remainder of the tract improvement covered by the Tract Improvement
Agreement for Tract 8171, Dublin Ranch Subarea 3, Phase One are require to be completed
not later than two years following said date of execution of the Tract Improvement Agreement,
or June 16, 2017; and
WHEREAS, in exchange for revising the completion date of said improvements, the
Developer has offered to design and install certain median landscape and irrigation
improvements on Dublin Boulevard and Central Parkway; and
WHEREAS, the Developer has executed and filed with the City of Dublin the First
Amendment to the Tract Improvement Agreement for Tract 8171, Dublin Ranch Subarea 3,
Phase One, attached hereto as Exhibit "A," outlining the revised completion date and required
landscape and irrigation improvements;
NOW, THEREFORE, BE IT RESOLVED that said First Amendment to the Agreement is
hereby approved.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized by the City
Council to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 15th day of March, 2016.
AYES-
NOES-
ABSENT-
ABSTAIN-
ATTEST-
City Clerk
1590866.1
Mayor
EXHIBIT A
CITY OF DUBLIN
FIRST AMENDMENT TO
TRACT IMPROVEMENT AGREEMENT
TRACT 8171
DUBLIN RANCH SUBAREA 3, PHASE ONE
This First Amendment is made and entered into this day of March, 2016, by and
between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY ", and Lennar
Homes of California, Inc., a California Corporation, hereinafter referred to as "DEVELOPER ".
RECITALS
A. WHEREAS, CITY and DEVELOPER are parties to that certain "Tract Improvement
Agreement, Tract 8171, Dublin Ranch Subarea 3, Phase One" ( "Agreement "), approved by City
Council Resolution No. 103 -15 on June 16, 2015.
B. WHEREAS, CITY and DEVELOPER now desire to enter into this "First Amendment to
Tract Improvement Agreement, Tract 8171, Dublin Ranch Subarea 3, Phase One" ( "Amendment ") in
order to modify, amend and /or supplement certain terms and conditions of the Agreement, as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants
herein contained, the parties agree as follows:
Section 1 Section 1 of the Agreement is hereby deleted in its entirety and replaced with the
following:
Time is of the essence in this Agreement. DEVELOPER shall complete The Improvements
not later than two years following said date of execution of this Agreement.
Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set of
final Record Drawings of The Improvements, including any modifications made during construction.
Section 2 A new section, Section 1A, "Additional Improvements," of the Agreement shall be
inserted to read as follows:
The DEVELOPER agrees to design and install, at their sole cost and expense, landscape and
irrigation improvements (hereafter "The Additional Improvements ") to the satisfaction of the City
Engineer at the following locations:
• Existing median on Dublin Boulevard between Lockhart Street and the Fallon Gateway
Entrance
• Existing median on Central Parkway between Lockhart Street and Fallon Road
The DEVELOPER shall, within five (5) days after the date the City of Dublin City Council
approves the Amendment, furnish to the CITY a cost estimate for the construction of The Additional
Improvements for review and approval by the CITY Engineer. The construction cost estimate shall
provide for construction cost contingencies in the an amount equal to twenty percent (20 %) of the
estimated construction costs, and engineering and design costs in an amount equal to ten percent
(10 %) of the estimated construction costs.
The DEVELOPER shall, within ten (10) days of the date the CITY Engineer approves the cost
estimate for The Additional Improvements, furnish CITY with the following security in a form
satisfactory to the CITY Attorney:
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 above and
sufficient to assure CITY that The Additional Improvements will be satisfactorily completed.
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 above and sufficient to
assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor,
materials, or equipment shall be paid therefore.
The DEVELOPER shall, within thirty (30) days of the date of this agreement, submit
improvement plans for the construction of The Additional Improvements for review and approval by
the CITY Engineer.
Within sixty (60) days of the date plans for The Additional Improvements are approved by the
CITY Engineer, the DEVELOPER shall commence construction of The Additional Improvements.
DEVELOPER shall complete The Additional Improvements not later than two years following
said date of execution of this Agreement.
Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set of
final Record Drawings of The Additional Improvements, including any modifications made during
construction.
Section 3 All other provisions of the Agreement shall remain in effect
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at
Dublin, California, the day and year first above written.
CITY OF DUBLIN
By:
City Manager
ATTEST:
City Clerk
DEVELOPER
2
Lennar Homes of California, Inc., a California Corporation
M
Gordon D. Jones,
Vice President
CITY OF DUBLIN
TRACT IMPROVEMENT AGREEMENT
TRACT 8171
DUBLIN RANCH SUBAREA 3, PHASE ONE
This agreement is made and entered into this ! (P th day of June, 2015, by and between the
City of Dublin, a municipal corporation, hereinafter referred to as "CITY ", and Lennar Homes of
California, Inc., A California Corporation, 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. 8171, desires to improve those
improvements thereafter "The Improvements ") required by Planning Commission Resolution No. 14 -
20 adopted by the Planning Commission of the City of Dublin on April 29 , 2014 and City of Dublin
City Council Resolution No. 66 -14 approved on May 20, 2014, approving the Site Development
Review Permit and Vesting Tentative for the Project known as Dublin Ranch Subarea 3, 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 for said development entitled:
• Improvement Plans — Tract 8979 --- Subarea 3, April 2015, prepared by MacKay & Somps, 28
Sheets (Sheets C1 -C28), approved by the City Engineer on , 2015.
• Joint Trench Plans — Lennar Homes, Dublin Ranch Phase 1, Central and Fallon
Neighborhood 7 and 2, prepared by Glacalone Design Services, Inc, 7 Sheets (Sheets JT1-
JT7), dated March 31, 2015. approved by the City Engineer on , 2015.
• Streetlight Plans — Dublin Ranch Phase - Private Street Lighting, prepared by Giacalone
Design Services, Inc, 6 Sheets (Sheets SL1 -S1-6), dated March 31, 2015, approved by the
City Engineer on , 2015.
• Oifsite Improvement Plans — Central Parkwayl Fallon Road — Subarea 3, April 2015, prepared
by MacKay & Somps, 9 Sheets (Sheets C1 -C9), approved by the City Engineer on
, 2015.
• Irongate On -Site Landscape Plans for Phase 1, Tract 8171, prepared by R3 Studios, 99
Sheets (Sheets 1-0.0 - 1-4.11) approved by the City Engineer on , 2015.
• frongate Offsife Landscape Plans for Phase 1, Tract 8171, prepared by R3 Studios, 18 Sheets
(Sheets L0.0- L3.6), approved by the City Engineer on , 2015.
• City of Dublin Central Parkway of Kelton Street Traffic Signal Installation, prepared by TJKM
Transportation Consultants, 6 Sheets (Sheets TS- 1- TS -6), approved by the City Engineer on
, 2015.
• Temporary Sidewalk, Dublin Boulevard, prepared by MacKay & Somps, 1 Sheet (Sheet Cl),
approved by the City Engineer on 2015.
• Fallon Road Median Exhibit, dated April 3, 2015
• Offsite Improvement Plans, Dublin Boulevard/ Lockhart Street, Subarea 3 Phase 2, April 2015,
prepared by Mackay & Somps, 9 Sheets (Sheet C1 -C9), dated April 7, 2015 and as may be
modified prior to approval by the City Engineer.
• Class 1 Trail Bonding Exhibit dated March g, 2015
and now on file in the office of the 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 ❑EVELOPER's satisfactory performance of the terms and
conditions of this Agreement; and
WHEREAS, CITY has determined that the portion of The Improvements that will be accepted
by the City as Public improvements are a public works subject to California prevailing wage
requirements:
NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants
herein contained, the parties agree as follows:
1. Completion Time.
Time is of the essence in this Agreement. DEVELOPER shall complete The Improvements
not later than two years following said date of execution of this Agreement unless otherwise stated
below.
The following improvements shall be completed to the satisfaction of the City Engineer prior to
issuance of the 100' Building Permit within Tract 8171:
• Frontage improvements (including sidewalk and stormwater treatment measures)
along Dublin Boulevard between Lockhart Street and Fallon Road
• Permanent/ temporary streambed corridor trail from the Lockhart Street/ Central
Parkway intersection south to the Dublin Boulevard/ Fallon Gateway entry
• Permanent/ temporary trail connecting the Tract 8171 Neighborhood to the streambed
corridor trail
• Permanent / temporary trail connecting the Tract 8171 Neighborhoods to the top of the
hill on Parcel C, Tract 8171 (lookout point)
• Temporary Sidewalk on the south side Dublin Boulevard from Lockhart Street to the
existing driveway at the western boundary of Fallon Gateway
The Developer shall, within thirty (30) days of the date of this agreement, submit improvement
plans for the construction of the Fallon Road median island between Central Parkway and Dublin
Boulevard.
Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set of
final Record Drawings of The Improvements, including any modifications made during construction.
2. Estimated Cost of Improvements.
The estimated cost of constructing The Improvements required by this agreement are
presented in the following bond estimates prepared by MacKay & Somps, and are agreed to be as
follows:
■ Preliminary Bond Estimate, City of Dublin, Subarea 3, Phase 1 — Public and Private
Improvements, dated April 9, 2015 $3,049,663
• Preliminary Bond Estimate, City of Dublin, Subarea 3, Phase 1 -- Offsite
Improvements (Central Parkway /Fallon/ Temporary Sidewalk Dublin Boulevard),
dated March 5, 2015
$724,367
• Preliminary Bond Estimate, City of Dublin, Subarea 3, Phase 2 — Offsite
Improvements (Dublin Boulevard/ Lockhart Street), dated March 30, 2012
$643,820
• Preliminary Bond Estimate, City of Dublin, Subarea 3, Phase 2 — Offsite
Improvements (Fallon Road Median), dated April 6, 2015
$398,250
• Bond Estimate, City of Dublin, Trail Work, Tract 8171, dated
$57,301
March 11, 2015
• Preliminary Bond Estimate, City of Dublin, Subarea 3 — Storm Drain Improvements,
dated November 11, 2014
$221,580
Said amount includes costs and reasonable expenses and fees which may be incurred in enforcing
the obligation secured. Said amount reflects that the Tract 8171 Improvements are currently 0%
complete (bond is for 100% of the full amount). The bond estimates are attached as Exhibit A to this
agreement.
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:
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 (collectively,
the "Faithful Performance Bond ").
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 therefore (collectively; the "Labor and Materials
Bond ").
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,
3. Insurance Required.
Prior to commencing construction of the improvements, DEVELOPER shall obtain or cause to
be obtained and filed with the CITY, all insurance required under this paragraph Prior to the
commencement of work under this Agreement, DEVELOPER's general contractor (if different than
Developer) shall obtain or cause to be obtained and filed with the Administrative Services Director, all
insurance required under this paragraph. 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. 1173) 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. 1178) covering
Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3) Workers' Compensation insurance as required by the Labor Code of the State
of California and Employers Liability Insurance.
B. Minimum Limits of Insurance. DEVELOPER shall maintain limits no less than:
1) General Liability: $1,000,000 combined single limit per occurrence for bodily
injury, personal injury and property damage. If commercial General Liability Insurance
or other form with a general aggregate limit is used, either the general aggregate limit
shall apply separately to this project/location or the general aggregate limit shall be
twice the required occurrence limit.
2) Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage.
3) Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California and Employers Liability
limits of $1,000,000 per accident.
C. Deductibles and Self- Insurance Retentions. Any deductibles or self - insured
retentions must be declared to and approved by the CITY. DEVELOPER hereby declares that
the insurance required under Paragraph 3(B )(1) contains (i) a $1,000,000 per occurrence self -
insured retention for Bodily Injury and Property Damage Liability, (ii) a $2,000,000 per
occurrence self - insured retention for third party action over actions and (iii) a $7,500,000 per
occurrence self - insured retention for Home Builder's Limited Warranty Coverage, Construction
Damage Liability Coverage and Fungi and Related Medical Payments ( "GL SIR's "). The CITY
hereby approves the GL SIR's.
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 an 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) 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.
Notwithstanding the foregoing, if an endorsement that would provide for thirty {30}
days' prior written notice prior to one or more of the above actions is not commercially
available, DEVELOPER shall be excused from providing an endorsement covering
said action or actions, provided that in such circumstances, DEVELOPER shall give
written notice to the CITY as soon as is practicable if DEVELOPER learns that its
coverage has been suspended, voided, cancelled by either party or reduced in
coverage or in limits.
a) Acceptability of Insurers. Insurance is to be placed with insurers with a
Bests' rating of no less than A-- VI I.
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 certify 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 provided;
however, that if the policies are not yet available, the City will accept
copies of the applicable binders.
c) Subcontractors. DEVELOPER and/or DEVELOPER's general
contractor shall include all subcontractors as insureds under its policies
or shall obtain separate certificates and endorsements for each
5
subcontractor. All coverages for subcontractors shall be subject to all of
the requirements stated herein.
4. 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
workmanship and materials actually appear during the one -year guarantee period, and have been
corrected, the guarantee period for the defected items shall automatically be extended for an
additional year from the date of the completion of the repair 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 thirty (30) 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 DEVELOPER shall pay
to CITY on demand all costs and expense of such repair. Notwithstanding anything herein to the
contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee
results in a condition which constitutes an immediate hazard to the public health, safety, or welfare,
CITY shall have the right to immediately repair, or cause to be repaired, such defect, and
DEVELOPER shall pay to CITY 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, 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.
5. Inspection of the Work.
DEVELOPER shall guarantee free access to CITY through its City Engineer and 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.
B. Agreement_ Assignment.
This Agreement shall not be assigned by DEVELOPER without the written consent of CITY.
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 City Engineer may serve written notice on DEVELOPER and
DEVELOPER's surety or holder of other security of breach of this Agreement, or of any portion,
thereof, and default of DEVELOPER, and DEVELOPER shall have fifteen (15) days after receipt of
such written notice to cure such default; provided that, if such cure cannot be reasonably effected
within such fifteen (15) day period, such failure shall not be a default hereunder so long as
DEVELOPER commences to cure such default in such fifteen (15) day period, and thereafter
diligently prosecutes such cure to completion.
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 other method CITY may deem
advisable, for the account and at the expense of DEVELOPER and DEVELOPER's surety shall be
liable to CITY for 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 therefore.
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 Engineer
City of Dublin
100 Civic Plaza
Dublin, CA 94558
Notices required to be given to DEVELOPER shall be addressed as follows:
Gordon D. Jones, Vice President
Lennar Homes of California, Inc., A California Corporation
6111 Bollinger Canyon Road, Suite 550
San Ramon, CA 94583
7
Notices required to be given SURETY of DEVELOPER shall be addressed as follows:
Developers Insurance and Indemnity Company
Indemnity Company of California
PO Box 19725, Irvine, CA 92623
(940)- 263 -3300
The Continental Insurance Company
333 South Wabash Avenue, Floor 22
Chicago, IL 60604
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.
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.
8. 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.
Acceptance of Work.
Capon notice of the completion of The Improvements 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 Improvements without delay, and, if found to be in accordance with said plans and
specifications and this Agreement, and upon submittal of a warranty bond in the amount of 25% of the
estimated cost of The Improvements that are within the Public right -of -way or Public easements, shall
recommend acceptance of the work to the City Council and, upon such acceptance, shall notify
DEVELOPER or his designated agents of such acceptance and shall thereafter immediately release
the Faithful Performance Bond and the Labor and Materials Bond. The City will not accept the Private
Improvements and a warranty bond will not be needed for these Improvements; provided however,
the CITY shall examine the Private Improvements as set forth above and shall notify DEVELOPER or
his designated agents of their completion and shall thereafter immediately release the Faithful
Performance Bond and the Labor and Materials Bond.
10. Patent and Copyright Costs.
E:j
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 may result from the use of said patented or copyrighted material, process or
publication.
11. 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 Civil Code of the State of California.
12. Liability.
A. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the design and
construction of The Improvements will not adversely affect any portion of adjacent properties
and that all work will be performed in a proper manner. 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 andfor
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 seeps damages for breach of this Agreement
or seeks to specifically enfo roe the terms of this Agreement, and, in the event judgment
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is entered in said action, the prevailing party shall be entitled to recover its attorneys'
fees and court costs. If CITY is the prevailing party, CITY shall also be entitled to
recover its attorney's fees and costs in any action against DEVELOPER's surety on the
bonds provided under paragraph 3.
13. 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
Dubiin, California, the day and year first above written.
CITY OF PAJeLIN
By: / Ye,
ity Manager
C,k, "s
ATTEST:
City Clerk
DEVELOPER
Lennar rues of California c., A California Corporation
By:
Gord D. Jones,
Vice President
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