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HomeMy WebLinkAboutReso 112-20 Approving the Improvement Agreement for the Don Biddle Community ParkReso. No. 112-20, Item 4.6, Adopted 11/03/20 Page 1 of 2 RESOLUTION NO. 112 – 20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE IMPROVEMENT AGREEMENT FOR THE DON BIDDLE COMMUNITY PARK WHEREAS, Dublin Crossing, LLC owns certain real property (“the Property”) consisting of approximately 189 acres of land, located in the City of Dublin, County of Alameda, north of Dublin Boulevard, west of Arnold Road, and east of Scarlett Drive on which it has approvals for a mixed-used development project (“the Project”); and WHEREAS, in pursuit of the Project, Dublin Crossing, LLC entered into a Development Agreement and subsequent amendments and memorandum with the City, dated November 19, 2013, June 16, 2015, February 9, 2016, May 16, 2017, November 20, 2018, May 21, 2019, and August 1, 2019 (“Development Agreement”); and WHEREAS, the Development Agreement requires Dublin Crossing, LLC to dedicate 30 acres of parkland to the City for which it will receive Community Parkland fee credits under the City’s Public Facilities Fee Program; and WHEREAS, the parkland was dedicated on the Final Maps for Tracts 8382, 8368, and 8415, which were approved by the City Engineer. The dedication satisfies the park dedication obligation of the Development Agreement; and WHEREAS, Dublin Crossing, LLC has designed and will construct the 30-acre Don Biddle Community Park, as specified in the Improvement Agreement; and WHEREAS, upon completion, Dublin Crossing, LLC will dedicate the park improvements to the City. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve an Improvement Agreement for Don Biddle Community Park within the Boulevard Development (formerly Dublin Crossing Development), attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Improvement Agreement, attached hereto as Exhibit A, and make any necessary, non- substantive changes to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 3rd day of November 2020, by the following vote: AYES: Councilmembers Hernandez, Josey, Kumagai and Mayor Haubert NOES: ABSENT: Councilmember Goel ABSTAIN: Reso. No. 112-20, Item 4.6, Adopted 11/03/20 Page 2 of 2 ______________________________ Mayor ATTEST: _________________________________ City Clerk 339027-000055 1 WEST\280020117.910 IMPROVEMENT AGREEMENT FOR DON BIDDLE COMMUNITY PARK THIS IMPROVEMENT AGREEMENT (this “Agreement”) is made and entered in the City of Dublin on this __ day of _____, 2020 (the “Effective Date”) by and between the City of Dublin, a Municipal Corporation (hereafter "City") and Dublin Crossing, LLC, a Delaware limited liability company (“Developer” hereinafter). City and Developer are hereinafter collectively referred to as the “Parties.” RECITALS A. Developer owns, owned, or is in contract to purchase certain real property (the “Property”) consisting of approximately 189 acres of land, known as Boulevard, on which it is pursuing a mixed-use development project (the “Project”); and B. In pursuit of the Project, the City and Developer entered into a Development Agreement, dated November 19, 2013, as amended from time to time (as amended, the “Development Agreement”). Among other things, the Development Agreement provides that Developer will improve a 30-net-acre portion of the Property (the “Park Site”) as a community park (the “Park”). C. Section 9.1 of the Development Agreement obligates Developer to dedicate the Park Site in three phases (“Park Phases”) each comprised of a 10-acre portion. The dedication of one of the Park Phases is required to occur prior to or concurrently with Developer’s processing of the “first final map” for each of Project Phases 2, 3, and 5, respectively, as such terms are defined in the Development Agreement (each, a “Dedication Obligation”). Section 9.5.5 of the Development Agreement obligates Developer to enter into a park improvement agreement with the City (a “Park Improvement Agreement”) in conjunction with the processing of the final map pursuant to which the Dedication Obligation for each Park Phase is made pursuant to Section 9.1 of the Development Agreement (each, a “Park Improvement Agreement Obligation”). D. Developer now intends to meet its obligations to develop the Park in one Park Phase rather than three Park Phases in accordance with this Agreement. Developer and the City agree that the execution of this Agreement satisfies all Park Improvement Agreement Obligations of Developer under Section 9.5.5 of the Development Agreement. E. 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 Developer agree as follows: 1. Land Dedication. Prior to or concurrently herewith, Developer has dedicated an approximately 30.017-acre community park parcel to the City (the 339027-000055 2 WEST\280020117.910 “Community Park”). The Community Park is depicted on Exhibit A attached hereto. Upon the Developer’s irrevocable offer of dedication of the Community Park to the City, all Dedication Obligations shall be deemed satisfied. The parties acknowledge and agree that, as of the Effective Date, the City has not completed construction of a certain Iron Horse Trail Bridge depicted on Exhibit C attached hereto (the “Iron Horse Trail Bridge Work”). Promptly following its execution of this Agreement and (a) Developer’s delivery to the City of evidence demonstrating that the Community Park meets California Department of Toxic Substances Control standards applicable to residential development or any lesser standard acceptable to the City and (b) Developer’s completion of street frontage improvements for Dublin Boulevard, Columbus Street, Horizon Parkway, Nugget Way, and Scarlett Drive (except to the extent such street frontage improvements cannot be completed due to incomplete Iron Horse Trail Bridge Work), the City shall accept the Community Park, subject to the obligations of Developer to construct Improvements (as such term is defined below) required by this Agreement. 2. Construction Documents. Section 9.5.1 of the Development Agreement requires that Developer prepare Construction Documents for the Park that is dedicated with the applicable final map. The form of the Construction Documents is specified in Section 9.5.1 of the Development Agreement. Developer shall prepare and submit for City’s review and approval the Construction Documents for the improvements in the Community Park as described on Exhibit B attached hereto (the “Improvements”) within sixty (60) days following the Effective Date. City shall approve or provide comments to the Construction Documents within 30 days after receipt of Developer’s proposed Construction Documents (the “City Construction Document Response Deadline”). Developer shall incorporate City’s comments, if any, into the Construction Documents and resubmit the Construction Documents to City for review and approval by City in accordance with the foregoing sentence, except that the City Construction Document Response Deadline shall be determined by the date of City’s receipt of the revised proposed Construction Documents as opposed to the date of Developer’s initial submittal of the proposed Construction Documents. 3. Substantial Completion Time. Developer shall commence construction of the Improvements within 60 days following the City’s approval of the Construction Documents to City. Developer shall substantially complete all Improvements on or prior to the date that is no later than 13 months following commencement of construction thereof (the “Substantial Completion Deadline”) provided that the Substantial Completion Deadline (a) may be extended by the City Manager for up to three (3) additional months for good cause including unforeseen site conditions or by the City Council for any reason and for any period of time and (b) shall be automatically extended for any delays attributable to force majeure events as provided in the Development Agreement (including weather delays as allowed in the City’s standard specifications or reasonable impacts to the schedule to do adjacent projects along Scarlett Drive, as determined by the City Engineer). The City will consider, in good faith, an extension of the Substantial Completion Deadline for longer than three months for any delays caused by unforeseen site conditions or costs that are the responsibility of the Army, which extension shall require approval by the City Council. Time is of the 339027-000055 3 WEST\280020117.910 essence in this Agreement. Upon completion of the Improvements, Developer shall furnish City with a complete and reproducible set of final as-built plans and AutoCAD and/or ArcGIS copies of the Construction Documents for the Improvements, including any City authorized modifications. 4. Acceptance of Work. Upon Developer’s delivery to the City of a written notice of substantial completion of the Improvements, a set of final as-built Construction Documents, and a certification by the Developer’s Park designer that the Improvements are substantially complete, the City shall inspect the Improvements without delay to determine whether such Improvements are substantially complete in accordance with the Construction Documents and this Agreement. For the purposes of this Agreement, “substantially complete” shall mean that (i) the Improvements are sufficiently complete in accordance with the Construction Documents so that they are useable for their intended purpose except for minor punch-list work and (ii) the plants as they exist at the time of the inspection are reasonably expected to be established within ninety (90) days of such inspection. If the City so determines, the City shall notify Developer of such determination, thereby establishing the date of substantial completion of the Improvements of the purposes of this Agreement (the “Substantial Completion Date”) and the date of commencement of the Maintenance and Plant Establishment Period, as such term is defined below. Commencing on the Substantial Completion Date and ending on the date that is ninety (90) days after the Substantial Completion Date (the “Maintenance and Plant Establishment Period”), Developer shall maintain the Improvements in substantially similar condition as of the Substantial Completion Date, ordinary wear and tear excepted, and shall perform plant establishment maintenance. Upon the expiration of the Maintenance and Plant Establishment Period, Developer shall request a final inspection and acceptance of the Improvements by the City. The City shall promptly inspect the Improvements. If the City Engineer determines that the Improvements have been properly maintained, that the plants have been established, and that the punch-list items have been corrected, the City Engineer shall accept the Improvements on behalf of the City and confirm in writing the date of such acceptance (the “Acceptance Date”), which shall be used for establishment of applicable warranty period and for filing a Notice of Completion. Notwithstanding the foregoing, if portions of the Improvements are complete and operational, the Developer may request acceptance of that portion of the Improvements. The City Engineer shall review the request and determine if it is in the best interest of the public for the City to accept any portion of the Improvements prior to accepting all of the Improvements. If the City Engineer accepts any portion of the Improvements on behalf of the City, the City Engineer shall confirm in writing the date of such acceptance, which shall be the Acceptance Date for the portions of the Improvements accepted.If the City Engineer determines there are deficiencies in the maintenance or plant establishment, or if any punch-list items remain to be corrected, the Maintenance and Plant Establishment Period shall be extended until Developer corrects such deficiencies. 5. Construction Contract. Prior to commencement of construction of the Improvements, Developer shall enter into a fixed price construction contract with the contractor(s) performing the Improvements and, in conjunction therewith, prepare for the City’s approval an estimate of soft costs and other costs described under Section 8 339027-000055 4 WEST\280020117.910 of this Agreement. The sum of the fixed price(s) in the fixed price contract(s) plus the estimate of Developer’s management fee, soft costs and Other Costs as described in Section 8, including any contingencies and management fees, as such figures appear in the budget for the Improvements described on Exhibit B attached hereto (the “Estimated Costs”), as may be adjusted pursuant to Sections 7 and 8 below, will be used to determine the amount the City will reimburse Developer pursuant to Section 9. Costs incurred by Developer in excess of the Estimated Costs will be the sole responsibility of Developer, except to the extent that the City subsequently requests that the Improvements be modified in a manner that involves change orders approved by the City. 6. Inspection of the Work. Developer shall guarantee free access to City through the City Manager’s designated representative (the “City Representative”) for the safe and convenient inspection of the work throughout its construction. The City Representative shall notify Developer in writing of any materials and workmanship that are not in accordance with the Construction Documents, and Developer shall promptly remedy such deficiencies to the satisfaction of the City Representative without any expense to the City. Developer shall notify the City of all project progress meetings during the course of construction of the Improvements, and City Representative shall be provided opportunity to attend such meetings. Developer shall submit any proposed changes before and during construction to the City Representative for approval. Construction with respect to Improvements that are subject to any changes shall not commence until such changes are approved pursuant to Section 7 of this Agreement. Inspection of the Improvements shall include field review of the Improvements, review and approval of Developer-approved submittals of construction materials and manufactured products, and review of contractor and subcontractor requests for information (RFIs) submitted to the Developer. 7. Change Orders. a. Developer-Initiated Changes. City shall review and approve any commercially reasonable change orders submitted by Developer for the Improvements, including but not limited to any changes in the Improvements or additional costs or work due to unforeseen site conditions (“Developer Change Order”) within ten (10) business days of receipt thereof. If the City does not timely respond to Developer’s Change Order, such failure to timely respond shall be deemed approval of such Developer Change Order. The Estimated Costs for all purposes under this Agreement including Section 9(b) shall be adjusted to reflect changes in costs for the Improvements due to such approved Developer Change Order. Any construction with respect to Improvements that is subject to such Developer Change Order may not commence until such Developer Change Order is approved or deemed approved pursuant to this Section. Any Developer Change Order (or Developer Change Orders, cumulatively) that increases the cost, on an Exhibit B line-item by line-item basis, of the work subject to such Developer Change Order(s) by less than ten percent (10%) shall not require City approval, provided, however, that City approval shall be required for Developer Change Orders requested that would increase the aggregate cost of the work above the Estimated Costs. 339027-000055 5 WEST\280020117.910 b. City-Initiated Changes. City shall have a right to direct Developer to make changes to the Improvements (a “City-Initiated Change”). If the City desires to initiate a City-Initiated Change, it shall submit a change order request to Developer. Developer shall respond within ten (10) business days with either a request for additional information or a detailed cost estimate (or savings estimate for deductive change orders) and any other reasonably pertinent terms, such as scheduling changes, for completing the change, which shall be subject to the City’s approval. If the City provides the additional information requested by Developer, Developer shall have an additional ten (10) business days to respond in accordance with the terms of this Section 7(b). If the City approves the response by Developer, Developer shall complete the Improvements as revised by the City-Initiated Change, and the agreed-upon Estimated Costs shall be increased or decreased to reflect the changes in costs as a result of the City-Initiated Change. c. Army-Related Unforeseen Costs. In the event that unforeseen site conditions that are the responsibility of the United States Army impose additional costs for the Improvements, Developer agrees to take commercially reasonable steps to obtain reimbursement from the United States Army for such additional costs and contribute any such reimbursements to the City to the extent that such costs have been included in a Developer Change Order approved by the City. 8. Other Costs. City and Developer acknowledge that City and Developer may incur various costs during park development beyond construction document preparation and improvement construction. Such costs (“Other Costs”) include but are not limited to consultant construction assistance (environmental, inspection, engineering), storm water pollution prevention, utility bills (electric, water), utility permits and fees, City inspections, permits and fees, design/drafting fees, fencing, maintenance and miscellaneous costs such as photocopying and printing. Developer shall not enter into contracts for such Other Costs or otherwise procure such services without obtaining City consent, provided that no consent by City is needed for Other Costs included on the list of Estimated Costs attached hereto as Exhibit B. Any increases in such Other Costs shall be subject to Section 7 of this Agreement. Developer acknowledges that failure to obtain such written consent from the City, as required by this Section, will result in Developer’s sole responsibility to pay for such Other Costs without reimbursement or credit from the City. 9. Payments; Reimbursement. a. Developer shall be responsible for all payments associated with the Improvements. This includes but is not limited to, contractors work, and Other Costs listed in Section 8. b. In accordance with Section 9.5.2 of the Development Agreement, City shall reimburse Developer within 30 days of receipt of an invoice for its share of the cost of the Community Park (including any amounts paid to any contractor pursuant to an agreed-upon fixed price construction contract) determined pursuant to Section 5, to the extent that such costs are not in excess of the Estimated Costs determined pursuant 339027-000055 6 WEST\280020117.910 to Section 5. The City’s share shall be 44.88% until the Developer has paid $12,857,142 of such costs and 100% thereafter. Developer shall retain and provide to City upon request invoices and other documentation that evidences the costs Developer has incurred on the Community Park. 10. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, wear and tear arising from any abuse, neglect or ordinary use, Developer warrants that all work under this Agreement performed 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, shall be free of all defects of workmanship and materials for a period of one (1) year after the Acceptance Date (the “Warranty Period”), provided that such warranty does not apply to plants. All manufactured products specified for the Park Site shall have extended warranties as available from the companies that supply the products (“Manufacturer’s Warranties”). All Manufacturer’s Warranties shall be transferred to the City prior to acceptance of the Improvements. Such Manufacturer’s 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 to: play equipment, site furnishings and mechanical equipment. Developer shall cause its contractor(s) to 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 prove to be defective in workmanship or material within the Warranty Period without expense or charge of any nature whatsoever to City. Developer further covenants and agrees that when defects in design, workmanship and materials actually appear during the Warranty Period, and have been corrected, the Warranty Period for such corrected items shall automatically be extended for an additional year to insure that such defects have actually been corrected, provided that City shall notify Developer of such defects without delay. In the event Developer shall fail to comply with the conditions of the foregoing guarantee within ten (10) business days’ time after being notified of the defect in writing (or, if such defect is of a nature that cannot be reasonably repaired within ten (10) business days, within a period of time that such defect may be reasonably repaired provided that Developer diligently pursues such repair), 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, provided that City shall give Developer immediate notice in writing or otherwise of such need for immediate repair and Developer may, if feasible, immediately repair or cause to be repaired such defect. 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, Developer shall pay, in addition to actual costs and expenses of such repair or work, fifty percent 339027-000055 7 WEST\280020117.910 (50%) of such costs and expenses for overhead and interest at the lesser of twelve percent (12%) per annum and 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 Parties’ initial estimate of the cost of constructing the Improvements required by this Agreement is set forth in Exhibit B, and the final estimated costs (“the Estimated Costs”) will be determined pursuant to Section 5. Said costs specifically do not and shall not include Chabot Creek improvements and the Stormwater Improvements identified in Section 9.3 of the Development Agreement, which costs are Developer’s sole responsibility. 12. Security Furnished. a. Within thirty (30) days after the Effective Date, Developer shall furnish City with security in a form satisfactory to the City Attorney that ensures Developer’s contribution to the Community Park under Section 9.5.5 of the Development Agreement in the amount of Twelve Million Eight Hundred Fifty-Seven Thousand One Hundred Forty-Two Dollars ($12,857,142). The City Engineer shall reduce the amount of such security by the amount of any costs incurred prior to the Effective Date for which Developer has provided satisfactory documentation under Section 9.b. b. Upon completion of the Construction Documents pursuant to Section 2, Developer shall furnish the City with the following security in a form satisfactory to the City Attorney. Once such security is furnished, the City shall release or return the security provided under subdivision (a) of this Section. i. 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 an amount (the “Bond Amount”) that is one hundred percent (100%) of the Estimated Costs at the time of completion of the Construction Documents and sufficient to assure City that the Improvements will be satisfactorily completed. The security shall be released to Developer upon the Acceptance Date, provided, however, that in the event that certain Improvements are accepted by the City prior to accepting the entire Park, a portion of such security in proportion to the Estimated Costs for the accepted Improvements compared to the Estimated Costs for the Park shall be released. ii. 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 the Bond Amount (subject to all adjustments and release provisions described in Section 12(b)(i) above) and sufficient to assure City that Developer’s contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefore. c. Upon completion of the Improvements, and prior to the City accepting the Improvements, Developer shall furnish the following security in a form 339027-000055 8 WEST\280020117.910 satisfactory to the City Attorney: 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 ten percent (10%) of the Bond Amount to guarantee all work under this Agreement for the Warranty Period. d. City shall be the sole indemnitee named on any instrument required by this Agreement. 13. Fee Credit. a. For Improvements. Upon posting the security required by subdivision (b) of Section 12 above, Developer shall be deemed to have satisfied its obligations to contribute to Community and Neighborhood Park Improvements under the Public Facilities Fee for 1,995 residential units. b. For Land Dedication. Upon satisfaction of the terms of Section 9.2 of the Development Agreement with respect to the Community Park, the land dedication described in Section 1 of this Agreement will satisfy Developer’s obligations under the community park land component of the City’s Public Facilities Fee for 8.170 acres of Neighborhood Park and 19.063 acres of Community Park, as such terms are defined in the Development Agreement. 14. Liability. Developer hereby warrants that the design and construction of the Improvements will not require physical access to or intrusion upon any portion of adjacent properties and that all work will be performed to standards customary to the industry. Developer 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 initiated prior to expiration of the Warranty Period that relate to the construction of the Improvements (collectively “Liability”) 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, except such Liabilities caused by the sole negligence or willful misconduct of the City; provided as follows: a. 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 Section 15 hereof. b. That the aforesaid hold harmless agreement by Developer shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this paragraph, regardless of whether or not City has prepared, supplied, or approved of plans and/or specifications for the subdivision, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 339027-000055 9 WEST\280020117.910 i. Design Defect. If, in the reasonable opinion of the City, a design defect in the work of Improvements becomes apparent during the course of construction or within the Warranty Period (except for those manufactured products with respect to which extended warranties have been provided, in which case the extended warranty period shall apply), 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 made within thirty (30) days of such determination by the City but in any event prior to the expiration of the Warranty Period, correct said design defect at Developer’s sole cost and expense, provided that such correction may require a Developer Change Order and further provided that such costs are reimbursable by City subject to the terms of Section 9(b) of this Agreement. The foregoing sentence shall in no event limit City’s abilities to make a claim against any Manufacturer’s Warranties that have been assigned to City pursuant to Section 10 of this Agreement. ii. 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 Developer’s surety on the bonds provided under Section 12. iii. Third Party Claims. With respect to third party claims against Developer, Developer waives any and all rights of any type to express or implied indemnity against the City. 15. Insurance Required. Concurrently with the execution hereof, Developer shall obtain or cause to be obtained and filed with the City, all insurance required under this paragraph, and such insurance shall have been reasonably 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, Developer'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 reasonably approved by the Risk Manager 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 final acceptance thereof by City. All insurance requirements herein provided shall at a minimum appear either in the body of the insurance policies or as endorsements and shall specifically bind the appropriate insurance carrier. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: i. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number 339027-000055 10 WEST\280020117.910 GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) ii. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. iii. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. Developer shall maintain limits no less than: i. 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. ii. Automobile Liability: $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 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, Developer shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: i. General Liability and Automobile Liability Coverages. (1) 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 Developer; products and completed operations of Developer; premises owned, occupied or used by Developer; or automobiles owned, leased, hired or borrowed by Developer. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. (2) Developer'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 Developer's insurance and shall not contribute with it. 339027-000055 11 WEST\280020117.910 (3) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. (4) 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 all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by Developer for the City. iii. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. (1) Acceptability of Insurers. Insurance is to be placed with insurers with a A.M. Bests' rating of no less than A:VII. (2) Verification of Coverage. Developer shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. (3) 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. 16. Assignment of Agreement. This Agreement shall not be assigned by Developer without the written consent of City, which shall not be unreasonably withheld. 17. Developer Not an Agent. 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. 18. Abandonment of Work. a. 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, 339027-000055 12 WEST\280020117.910 or if Developer, or any of Developer’s contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the City through its Public Works Director may serve written notice on Developer and Developer’s surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of Developer. b. 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 therefor. 19. 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, CA 94568 with a copy to: City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 and John Bakker, City Attorney Meyers Nave 1999 Harrison, 9th Floor Oakland, CA 94612 Notices required to be given to Developer shall be addressed as follows: Dublin Crossing, LLC c/o BrookCal Dublin LLC 339027-000055 13 WEST\280020117.910 500 La Gonda Way, Suite 100 Danville, CA 94526 Attention: Mr. Josh Roden with a copy to: Dublin Crossing, LLC c/o BrookCal Dublin LLC 500 La Gonda Way, Suite 100 Danville, CA 94526 Attention: Mr. Joe Guerra with a copy to: Dublin Crossing, LLC c/o Lennar Corporation 2603 Camino Ramon, Suite 525 San Ramon, CA 94583 Attention: Brian Olin 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. 20. Use of Improvements. At all times prior to the Acceptance Date, 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 Developer, provided that the date of any “City Authorization” for the use of the Improvements by the public will be deemed to be the Acceptance Date and the City’s acceptance of the Improvements for the purposes of this Agreement. “City Authorization” shall be limited to written authorization of the City Manager. 21. Safety Devices. Developer shall provide and maintain guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the Park Site as may be commercially reasonably necessary to prevent accidents to the public and damage to the Improvements. Developer shall furnish, place, and maintain such lights as may be commercially reasonably 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 Developer, and the entire site left clean and orderly. 22. Venue. Any action arising out of this Agreement shall be brought in Alameda County, California regardless of where else venue may lie. 339027-000055 14 WEST\280020117.910 23. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 24. 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. 25. 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. 339027-000055 15 WEST\280020117.910 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. City: CITY OF DUBLIN By: ____________________________ Laurie L. Sucgang, City Engineer Approved as to form ________________________ John Bakker, City Attorney 339027-000055 17 Exhibit A Diagram of Community Park Exhibit B Description of Improvements and Estimated Costs Description of Improvements: This Park project provides for the design and construction of a 30.017-acre community park in the Boulevard development, within the Dublin Crossing Specific Plan. The park will be located between Dublin Boulevard, Scarlett Drive, Horizon Parkway, and Columbus Street. The Park will be designed to substantially conform to the conceptual plan, which was approved by the City Council on January 9, 2018. The conceptual plan includes, but is not limited to, the following base bid items: two tennis courts, two basketball courts, a picnic and BBQ area, a great lawn (multi-use lawn area), a promenade loop, two playgrounds, parent paddock, community garden, a pedestrian and bicycle bridge over Chabot Canal, two foot bridges and trails through Chabot Canal, two restroom buildings, a tensile shade structure, parking lots, and other amenities. The Park will also be designed to include a specimen tree and an iconic piece of play equipment, which was approved by the City Council on October 2, 2018. Estimated Costs: The Park project budget for the design and construction of the 30.017-acre community park is $24,824,000. In accordance with the Dublin Crossing Development Agreement, the Developer is responsible for project costs up to $12,857,142. The City is responsible for the portion of the project costs that exceed that amount. City funding will come from Public Facility Fee Funds and General Fund. The following Estimated Project Budget is based upon fifty percent (50%) design drawings. Line item descriptions may be revised, and prices are subject to change, prior to completion of the Construction Documents. Estimated Project Budget: Item of Work Estimated Budget Project Soft Costs Design $2,125,000 Environmental $50,000 Inspections $25,000 Agency Fees $1,720,000 DSG Water Service Conversion $120,000 City Paid Agency Fees $100,000 City Management $177,000 City Paid Consultants $1,025,000 Miscellaneous $10,000 Soft Costs Contingency $103,288 Soft Costs Total $5,455,288 Construction General Requirements & Management $1,484,950 Clear & Grub $90,000 Rough Grading, Excavation & Stabilization $560,000 Fine Grading $815,000 Parking Lot Surfaces $860,000 Trails Surfacing $725,000 Walkways and Plaza $1,900,000 Sports Courts Surface $500,000 Playground Surface $170,000 Fencing $300,000 Site Furnishings $895,000 Neighborhood Playground $180,000 Adventure Playground $440,000 Iconic Play Structure $465,000 Restrooms $1,295,000 Shade Structure $55,000 Trash Enclosure $155,000 Pedestrian and Bicycle Bridge $500,000 Foot Bridges $220,000 Electrical Service $100,000 EV Charging and Parking Lot Lighting $340,000 Park Lighting and Power $825,000 Irrigation Trees & Shrubs $385,000 Irrigation Turf $1,590,000 Planting Trees & Shrubs $910,000 Planting Turf $435,000 Water Utilities $50,000 Sanitary Sewer Utilities $60,000 Storm Drain Utilities $1,355,000 Don Biddle Bust $35,000 Change Order Contingency 10% $1,673,762 Construction Total $19,368,712 Total Project Budget $24,824,000 Exhibit C Depiction of Iron Horse Trail Bridge Work