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HomeMy WebLinkAboutReso 95-04 ImprovAgmtTr7414 RESOLUTION NO. 95 - 04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING FINAL MAP AND IMPROVEMENT AGREEMENT FOR TRACT 7414 (GHC ROXBURY, LLC, A DELAWARE LIMITED LIABILITY) WHEREAS, the Final Map for Tract 7414, in the incorporated territory of the City of Dublin, State of California, has been presented to this City Council for approval, all in accordance with the provisions of the Subdivision Map Act of the State of California and the City of Dublin Mum'cipal Code; and WHEREAS, pursuant to Section 66434(g) of the Subdivision Map Act and Division 9, Part 3, Chapter 4, §8333 of the Streets and Highway Code, the filing of the Final Map for Tract 7414 shall constitute summary vacation of the Open Space and Trail Easement originally dedicated to the City of Dublin on the Final Map for Tract 7075 (filed on April 18, 2001, in Book 257 of Maps at Pages 47 - 61); and WHEREAS, the Developer, GHC Roxbury, LLC, has asked that Condition of Approval No. 134 of Planning Commission Resolution No. 03-51 requiring the execution of an Affordable Housing Agreement be deferred until building permits are issued for the affordable units to be constructed as part of the project; and WHEREAS, the Developer has executed and filed with the City of Dublin an Improvement Agreement to construct the required subdivision improvements for Tract 7414 in conformance with the Vesting Tentative Map and Conditions of Approval as approved by the Planning Commission via Resolution No. 03-51 (except as amended herein), and the improvement plans and specifications approved by Staff as referenced in the Agreement, with completion required on or before June 1, 2006; and WHEREAS, said Improvement Agreement is secured by a bond in the amount of $3,048,700.00 (Bond No. 868716S) issued by Developers Surety and Indemnity Company conditioned upon faithful performance under the terms of said Agreement; and WHEREAS, said Improvement Agreement is secured by a bond in the amount of $3,048,700.00 (Bond No. 868716S) issued by Developers Surety and Indemnity Company conditioned upon payment for labor performed or material furnis~d under the terms of said Agreement. NOW, THEREFORE, BE IT RESOLVED that said Improvement Agreement and bonds are hereby approved, and BE IT FURTHER RESOLVED that the Mayor is hereby authorized by the City Council to execute the Improvement Agreement in duplicate, hereto attached as Exhibit. A. BE IT FURTHER RESOLVED that the Open Space and Trail Easement originally dedicated to the City of Dublin on the Final Map for Tract 7075 is hereby summarily vacated. BE IT FURTHER RESOLVED that the execution of an Affordable Housing Agreement pursuant to Condition of Approval No. 134 is hereby deferred until building permits are issued for the affordable units to be constructed as part of the project. BE IT FURTHER RESOLVED that the Final Map of Tract 7414 is hereby approved; and that rights to areas marked as Maymom Lane and Somerset Lane, and those strips of land marked as Public Service Easement (P.S.E.), Emergency Vehicle Access Easemem (E.V.A.E.), and Storm Drain Easement (S.D.E.) as offered for dedication to the public in conformity with the terms of dedication are hereby accepted subject to improvement; and that the Clerk of this City Council is hereby directed to transmit said map to the County Recorder for filing. PASSED, APPROVED AND ADOPTED this 15th day of June, 2004. AYES: Councilmembers McCormick, Oravetz, Sbranti and Zika, and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None ATTEST: Deputy City Clerk G:\CC-MTGS~2004-qtr2~June~06-15-04~reso-ltact 7414.doc (Item 4.4) 2 EXHIBIT ,,A- TO..RESOLUT!0N __ - 04 CITY OF DUBLIN I M PROVEM E NT AG RE EM E NT SUBDIVISION IMPROVEMENTS FOR TRACT 7414,. TASSAJARA CREEK PHASE III (GHC ROXBURY, LLC) T-his agreement is made and entered into. this l CO ~ day of ~v~ .., 2004, by and between the CITY of DUblin, a municipal corporation, hereinafter referred to as ,CITY", and GHC Roxbury, LLC, a Delaware Limited Liability Company (hereinafter refe[red to as "DEVELOPER"). RECITALS WHEREAS, it has been determined by the City Council of the City Of Dublin, State of California, that DEVELOPER, as a subdivider, desires to improve and dedicate certain Public improvements (hereafter 'q'he Improvements") Shown on Tract 7414, in accordance with the requirements and conditions set forth within the City of Dublin Planning Commission ResolutionNo.'03-51 '(PA 02-48), adopted on October 28, 2003, and City Council Resolution No~ 225'03 adopted on November 18, 2003; the.requirements of the Subdivision Map Act of the State of Cal'ifornia. and the Subdivision Ordinance of ..the .City of Dublin; and those certain plans 'and specifications for said development approved by'the Public Works Director on · "improvement Plans for Tract. 74"14.- Roxbury, City of.Dublir~, Alameda Counfy; California"' (52 Sheets: 1-52), prepared by Ruggeri-Jensen-Azar &'Associates'.' ·"Landscape ImproVement Plans - Roxbury, Dublin CA." (28 Sheets: L1.1 - L6.2); :prepared by The .Guzzardo Partnership, Inc. · "Joint Trench Composite and Sfreef Li. qhting Plans for Tassaiara I!1 - Greenbdar' Homes, Dublin, California'(8 Sheets: JT;1-JT3, SL'I-SL3, and ph°t°rn'etdc'!~2);' prepared by'Giacalone Design Services, inc.- Said plans are now on file in the office of the Public Works Director/City Engineer, and .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, DEVELOPERintends to satisfactorily complete The Improvements Within the time hereinafter specified', and CITY intends to accept DEVELOPER's offer(s) of dedication of right-of-way and 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: .Section 1. Completion Time ..... . · truction of The Im roveme t~ i~'n.~nj~e . 0) days DEVELOPER will commence cons P ~v~.~ O:q)~,VELOP\Grcenbriar~Tassajara CrcckkPHASE II~Improvcment Agreement._ Subdzws,on.L~t.,~.. , ~/~ .~ ~.-'~ following the date on which CiTY executes this Agreement. DEVELOPER shall complete, such Improvements no later than two years following execution of this. agreement or not later than. ~ u~ e_ ~,~ ,2006.. Upon. completion, DEVELOPER shall, furnish CITY with a complete. and .reproducible set of final, as-built plans of The. Improvements, including any authorized modifications. Section 2. Estimated Cost of Improvements. For purposes of this. Agreement, the estimated cost of constructing The Improvements. is agreed to be Three Million Forty-Eight Thousand Seven Hundred and 00il00. Dollars ($3,048,700.00). Said amounts include costs and reasonable expenses and fees. which may be incurred in enforcing the obligation secured. Section 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 percent (100%) of the estimates set forth in Paragraph. 2 and. sufficient to. assure CITY that The. Improvements. will be satisfactorily completed. b. Labor and Materials. Either a. cash. deposit, a corporate, surety bond issued by a · company duly and legally licensed, to. conduct a general surety business, in the. State of California, or an instrument of credit equivalent to. one hundred percent (100%) of the. estimates set forth in. Paragraph 2. and sufficient to assure. CITY that DEVELOPER'S contractors, subcontractors,, and other persons furnishing, labor, materials, or equipment shall be paid therefor.. CITY shall, be the sole. indemnitee named on. any instrument required by this Agreement.. Any instrument or deposit required herein shall, conform to the provisions of Chapter 5. of the Subdivision Map. Act.. Section. 4. lnsurance~ Required.~ 'Concurrently with. the execution hereof,. DEVELOPER shall, obtain or cause to be Obtained and filed with the CITY, all insurance required underthis 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 carrier. 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 Page 2 of 10 IMPROVEMENT AGREEMENT April 28, 2004 G:kDEVELOl~Greenbriar~Tassajara CreekkPHASE III~Improvement Agreement._ Subdivision. DOC final, acceptance th'ereof by CITY. Ail requirements herein' provided shall, appear either in the body of the.. insurance policies or as .endorsements. and shall, specifically bind the insurance. carder, '. " a: Minimum Scope. of InsuranCe..` COVerage. Shall be at least as. broad as: (i) Insurance services Office. form. number GL0002 (Ed. 1/73) covering comprehensive General. Liability and. Insurance. Services. Office. form number. GL 0404. covedng 'Broad. Form. Comprehensive General Liabiiity;. or Insurance. services: Office. Commercial General Liability coverage,'("occurrence" form CG 0001 ,) (ii) Insurance Services Office' form. number CA 0001 (Ed. 1/78) covedng Automobile. Liability, code 1 "any auto" and endorsement CA.0025. (iii) Workers' Compensatio .n insurance as required, by the Labor Code. of the State of California and EmPloyers. Liability' Insurance. b. Minimum. Limits of Insurance. OWNER shall, maintain, limits no less. than:. (i)' .General. Liability.: $1 ,.000,000 Combined single limit per occurrence. for bodil'y 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, prpject/Iocati0n or the general aggregate., limit shall, be. twice the required occurrence limit. (ii) ' Automobile Liabilitv: '$1,000;000 COmbined single, limit per accident for bodily injury and property damage. · (iii) Workers'' Compensation. and Employers Liability:. Workers' compensation, limits as required by the. Labor Code of the. State. of · California arid. Employers Liability limits of $1,000,000 per accident. C. Deductibles,and Self-lnsurance'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 a nd. related, investigations~ claim, administration and defense, expenses. . d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following, provisions: '(i) General. Liability and Automobile Liability. Coverages. (a) The CITY, its officers, agents, officials, employees and Page 3 of 10 IMPROVEMENT AGREEMENT · · · April 28, 2004 G:~DEVELOP\Oreenbriar~Tassajara Creet6PHASE lll~xnprovement Agreement_ Subd~ns~on. DOC ...... 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 operat, ions 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. DEVEI~O.pER's insurance coverage shall be. pdmary insurance as respects the. CITY, its. officers,., officials;. employees and. volunteers... Any insurance or self-insurance. maintained 'by theCITY,, 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, offici'als,, 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. (ii) Workers'. Compensation and. Employers. Liability Coverage. The. insurer shall agree, to. waive 'ali' rights of subrogation, against the. CITY, its officers, Officials, employees and. volun{bers'for'10sses adsing from work performed, by the DEVELOPER for the CITY'. - (iii) Ail. Coverages.. .. Each insurance, policy required by this clause shall be. endorsed, to 'state that coverage Shall not be. suspended, Voided,. can6elled, by - either partY,, reduced in coverage or in limits, except a .fter thirty (30) : daYS' prior wdtten, notice by cerUfled'maii, return receipt requested, has been. given, to theClTY. (a) Acceptability. o[..Insurers. InSurance. is to. be. placed with insurers, with. a Bests' rating of no leSs than. A:VlI. (b) 'verification. of Coverage. DEVELOPER shall fu .misl~ 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. Page 4 of 10 IMPROVEMENT AGREEMENT April 28, 2004 13:,ff)EYELOP\Greenbriar~Tassajam Cr¢¢k'~PHASE IIr, Improvernent Agreement_ Subdivision. DOC - - (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. subcontractor.. All. coverages for ' ' Subcontractors. shall, be. subject to all of the. requirements. stated herein.. -Section 5. Work Performance 'and. Guarantee. ExCept as otherWise, expresSly provided in this Agreement,· and. exCepting only items of routine, maintenance,, ordinary wear and. tear and .unusual abuse or neg!ect,. DEVELOPER guarantees, all. work executed by DEVELOPER a nd/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 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. matedals-whichmay 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 desig n, workmanship and materials· actually appear during the. one- year guarantee pedod,-and, have. been corrected,, the guarantee, period, shall, automatically be extended, for the correCted, items 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 th'i~ty (30). days :lime Or sUCh i°nger time·' period, as agreed, to in writing by the. City Engineer, after being notified of the defect in writing, CITY Shall have· the right,, but shall not be. obligated, to. repair or obtain, the repair of the defect,: and DEVELOPER shall pay to. CITY on demand, all.costs and. expense, of' such repair. Notwithstanding an~hing 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 rePairl 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 perm'anent repairs. Which may b'e. required as. determined in the sole. discretion and. judgment of CITY. If CITY, at its sole. optibn,, makes, or causes· to be made the necessary repairs, or replacements or performs, the necessary Work,· DEVELOPER shall pay, ia addition to. actUal. costs and .expenses. of such repair or work,-.twenty-five percent (25%) of such· costs and expenses· for overhead and interest, at Re. maximum rate of interest permitted· by law accruing. thirty (30). days from the date of billing for such work or repairs. Section 6. Inspection .o[ the Work," DEVELOPER shall guarantee, free. access to CITY through its City Engineer and his designated representative for the safe and convenient inspection of the. Work throughout its construction. Said CITY representative shall have the authority to reject all materials and Pa§c 5 of 10 I1MPROVEME31T AGREEMENT ' ' · · · April 28, 2004 G:X.DEVELOP\Greenbriar~Tassajara CreekXPHASE IIIXImprovement Agreement_ Subdivision.DOC workmanship which are. not in accordance With the plans and specifications, and. all. such materials, and. or wOrk shall be removed promptlY by .OWNER and replaced to the satisfaction, of CITY without any. expense, to CITY in strict accordance with the Improvements plans and specifications. Section. 7. Agreement Assi.qnment. - DEVELOPER shall, not assig n this. Agreement'.without the written ConsentofCITY,. which' consent shall not be unreasOnably withheld. Section. 8. Abandonment of Work,, Neither DEVELOPER nor any of DEVELOPER's. agents or contractors .are. ot 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 E 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. In theevent 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, maytake, 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: Section 9. Notices ' All. notices herein, required shall be in writing, and delivered in person or sent by . registered mail, postage'prepaid. Notices. required to be. given, to CITY' shall be addressed as follows:. Melissa Morton Public Works Director City of Dublin. Page 6 of 10 IMpRoVEMENT AGREEMENT - , ....... April 28, 2004 O:X~DEVELOP\Oreenbriarl~TaSsajara Creel~HASE IIBlmprovement Agreement_ Subd~s]on. DO(-; 100 Civic Plaza. .i . '. ' Dublin, CA-94568 Noti'~es required tO be gi~en to DEVELOPER shal[ be addressed as. follows: - ' ' ' GHC'RoXburyl. LLC .c/o Green'briar Homes. Communi,ties, Inc, ' .... Patdck Costanzo, Executive. Vice. President ..-'. --. · ' 43160"Osg°od Road. , Fremont, CA 94539. Notices required, t°. be. given, sUretY of DEVELOPER shall be. addressed as. follows: _. Any party or the surety may change, s.uch, address bynotice, in wdting to the other party and. thereafter notices si~allbe addressed, and transmitted to. the. new address. Concurrently with. the. execution of, this Agreement, DEVELOPER has. executed and. has. caused, to. 'be. acknowledged an. abstract of'this Agreement. DEVELOPER agrees. CITY may record Said abstract'in the official. Records of Alameda County,. Section '10.. Use. of Streets. °r Improvements. At all. times Prior to. the'final .aCCeptance of the work by CITY, the use of any. or ail. streets. and imProvements within the. work to. be performed under this Agreement shall be at.the, sole. and. exclusive risk of DEVELOPER. Theissuance Of any building, or occupancy permit by'CITY for dwellings' located within, the. project .site. 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 detrimental!y affect public health and safety.. Section. 11. 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 site of The. Improvements. 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 ali. work to Page 7 of 10 ]~LP. ROVEMENT AGREEMENT Ap~l g8, 2004 G:~DEVELOP\Greenbriar~Tassajara Creek~PHASE RI~mprovement Agreement_ Subdivision. DOC . be.'performed under this Agreement~ ail. 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.. Section.. 12: Acceptance. of Work and. Right-of-Way. UpOn notice, of the completion,' of The Improvements and. the delivery of a set of final as- built mylar-plans with. eleCtronic rile'to CITY by DEVELOPER, CITY, ithrough its City Engineer or his designated representative,, shall examine, the 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 subject to. Section 5. above. If not previously .dedicated on the final map for.Tract 7414, DEVELOPER shall dediCate to CITY by separate instrument any 'right of way and easements deemed necessary by the City Engineer for the acceptance and maintenance of The Improvements, and, at acceptance of the Work,' CITY shall accept said right-of-way and maintenance easement dedications. Section 13.. Patent and. CoDvri.clht Costs. . · in. the. even: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. Section 14. 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 t° make such alterations_is'hereby g!ven, and. the sureties to. said. bonds hereby waive the. provisions of Secti°n 2819 of the. Civil. Code of the. State: of California. Section 15. Liabilitv. a. DEVELOPER Primarily. Liable..... DEVELOPER hereby warrants that the design, and construction of The Improvements 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. hereu rider; provided.as, follows: Page 8 of' 10 IMPROVEMENT AGREEMENT ' April 28, 2004 G:kDEVELOP\Greenbriai-~Tassajara Creek\~HASE IIBlmlYroveraefit Agreement Subdivision. DOC (i) .~ ·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· 3.'hereof. (ii) That the. aforesaid, hold harml'ess agreement by DEVELOPER shall apply to. all damages and claimS.for damages of every kind. suffered, or allegedto 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 pla.0s and/or specifications, for the subdivision,, or.regardless of whether or not such' insurance policies· shall have been determined, to be applicable. to any of such· damages or claims for damages. b. Design DefecL If, in. the opinion of the. CITY, a deSign.defect.in the work of improvements becomes apparent during the course of construction, or within~one (1) year following, acceptance by the CI'TY of the lmprovementS,. and Said· design defect,, in. the. opinion of the. CITY,. may substantially impair the. public health and'safety, OWNER sh'all, 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. - c.. Litigation. Expenses. In the. event that legal action, is instituted by either' party to this Agreement,. and said. action, seeks, damages· for breach of this Agreement or seeks, to specifically enf0me the. terms of this Agreement,. ....and, in the'event iudgment is entered in said'action, the' prevailing party shall 'be entitled, to. recover its attorneys' fees. and. court costs, If CITY is the. prevailing partyl. 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'Section· 3. Section 16.. 'Indemnification. and. Waiver.. DEVELOPER shall defend CITY,. its officers,, employees and officials,, against' anY claims or actions (including declaratory or injUnctive, relief) concerning DEVELOPER's.. construction of The Improvements on. DEVELOPER's Property and shall. 'indemnify and. hold CITY harmless· from. any damages,, charges,· fees Or penalties. that-may be. awarded, or imposed against CITY and/or DEVELOPER in. connection, with, or on account of,. DEVELOPER's. construction of The ImprOvements and/or CITY's failure to enforce· Or comply with any applicable laws. 'SeCtion. 17. Recitals. The foregoing R~citais are. true and correct and are made. a part hereof. Page 9 0f 10 IMPROVEMENT AGREEMENT .... April 28, 2004 O:XI)EVELOP\Crmenl~ar~Tassajara Creek~PHASE tllklmprovement Agreement_ Subdivision. DOC I'N.WITNEss WHEREOF, the parties hereto have .executed this Agreement in duplicate ' ' at Dublin, CalifOrnia, the day and Year 'first above written. CITY oF DUBLIN: - ' DEVELOPER:" GHC Roxbuw, LLC ' · .. A Delaware,Limited Liability Company BYi' ' ' By~. Greenbdar Homes communities, Inc. JanetLockhart, Mayor A California Corporation, Its Manager Typed or Printed Name .... Title Date EMPROVEMENT AGREEMENT Page 10 of][0 Develop: K:YPROJECTSYDUBLI1NATassajara IIACity- Improvement Agreement Signature Page.doe April 28, 2004 .. · ~ .... : - ~ ...,,.'~,..-.,,~: ... ~:.~.~.~.. , . _., ~..):'- :' . Oounty. of.. : ': . ...... '-- . ~ · . ~ . ' "~' .' ' t~-~a~r(~,~.n.~,~) .. ". .. ~ ~ 0 '. '" s~bserlbed 40 th~ w[fhi~'., in~m~nt ~nd .. >.- '.: "' . ~' ' acknowledged to me:~hat h~~~exeouted '"' '~ ~e s~;me, in h~s~: 'authorized ,- ~ ' ' ~. ".' ' ' ' 'cap~cit~ and ~ha~" .~y his~ . ,- ] ~~~_~_ ~' signa~~ ~e ~ns~men~ the pemad(s), or ' :' ~ the ent~ upon 'b~half of. Which the .. 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