HomeMy WebLinkAboutItem 4.6 - 3447 Park Improvement Agreement for Boulevard De
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STAFF REPORT
CITY COUNCIL
DATE: November 3, 2020
TO: Honorable Mayor and City Councilmembers
FROM:
Linda Smith, City Manager
SUBJECT:
Park Improvement Agreement for Don Biddle Community Park in the
Boulevard Development
Prepared by: Laurie Sucgang, City Engineer
EXECUTIVE SUMMARY:
The City Council will consider an Improvement Agreement with Dublin Crossing, LLC to
construct a 30-acre community park, Don Biddle Community Park, as identified in the
Dublin Crossing Specific Plan within the Boulevard development, formerly called Dublin
Crossing.
STAFF RECOMMENDATION:
Adopt the Resolution Approving the Improvement Agreement for the Don Biddle
Community Park; and approve a budget change.
FINANCIAL IMPACT:
The Don Biddle Community Park Project is included in the City’s 2020-2025 Capital
Improvement Program with a total current budget of $23.1 million. In accordance with
the Dublin Crossing Development Agreement, the Developer is responsible for project
costs up to $12,857,142, and the City is responsible for reimbursing the Developer for
project costs that exceed that amount.
The City’s portion of the funding for the current project budget will come from the Public
Facilities Fee Program and from Community Benefit Funds (General Fund) fo r the
inclusion of a specimen tree and upgraded playground equipment (CIP No. PK0115,
Attachment 3).
However, to proceed to construction, approval of a budget change is needed to
increase the City portion of the funding by $1.5 million, funded by a General Fund
Committed Reserve titled “Don Biddle Community Park,” to account for increases in
Zone 7 water connection fees, increases in DSRSD water capacity fees, and
unanticipated pre-construction services costs.
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DESCRIPTION:
Dublin Crossing, LLC (Developer) owns certain real property as part of its Boulevard
development project. The project includes approximately 189 acres of land located
north of Dublin Boulevard, west of Arnold Road, and east of Scarlett Drive.
Developer entered into a Development Agreement, subsequent amendments, and a
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. The
Development Agreement requires Dublin Crossing, LLC to dedicate and develop
parkland and receive parkland and park improvement credit for a portion of the 30-acre
Don Biddle Community Park through the City’s Public Facilities Fee Program.
The parkland was dedicated on the Final Maps for Tracts 8382, 8368, and 8415, whi ch
were approved by the City Engineer. The dedication satisfies the park dedication
obligation of the Development Agreement.
The City Council approved the conceptual plan on January 9, 2018 and additional
items, such as a specimen tree and upgraded playground equipment, on October 2,
2018.
If the City Council approves the Improvement Agreement, it is the City’s intention to
accept Dublin Crossing, LLC’s offer of park improvements in consideration of their
satisfactory performance of the terms and conditions as outlined in the Improvement
Agreement.
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of this Staff Report has been provided to the Developer.
ATTACHMENTS:
1. Resolution Approving the Improvement Agreement for the Don Biddle Community
Park
2. Exhibit A to Resolution - Improvement Agreement
3. CIP No. PK0115 Don Biddle Community Park
4. Budget Change Form
Reso. No. XXX-20, Item X.X, Adopted 11/03/20 Page 1 of 2
RESOLUTION NO. XX – 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.
Reso. No. XXX-20, Item X.X, Adopted 11/03/20 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 3rd day of November 2020, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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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
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“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
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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
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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.
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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
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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
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(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
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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.
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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
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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.
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(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,
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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
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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.
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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.
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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
Parks City of Dublin Capital Improvement Program 2020-2025 Page 43
Number – PK0115 DON BIDDLE COMMUNITY PARK Program – PARKS
PROJECT DESCRIPTION
This project provides for the design and construction of a 30-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 and will be built by the Boulevard Developer. The conceptual
plan was approved by the City Council on January 9, 2018. The plan includes tennis courts, basketball courts, a picnic and barbeque area, a great lawn (multi-use lawn
area), playgrounds, parent paddock, community garden, and other amenities. On October 2, 2018, City Council provided direction to use $600,000 of Community
Benefit Funds for the inclusion of a specimen tree and upgraded playground equipment in the park design. Construction is anticipated to begin in Summer 2020.
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
reimbursing the Developer for project costs that exceed that amount. City funding will come from Public Facility Fee Funds.
ANNUAL OPERATING IMPACT: $660,000
MANAGING DEPARTMENT: Public Works
2020-2025 CAPITAL IMPROVEMENT PROGRAM
ESTIMATED COSTS
PRIOR
YEARS
2019-2020
BUDGET 2020-2021 2021-2022 2022-2023 2023-2024 2024-2025
FUTURE
YEARS TOTALS
9100 - Salaries & Benefits $86,769 $433,133 $519,902
9200 - Contract Services $141,266 $1,290,891 $1,432,157
9400 - Improvements $18,804,720 $524,000 $19,328,720
9500 - Miscellaneous $429 $2,042,792 $2,043,221
TOTAL $228,464 $22,571,536 $524,000 $23,324,000
FUNDING SOURCE
PRIOR
YEARS
2019-2020
BUDGET 2020-2021 2021-2022 2022-2023 2023-2024 2024-2025
FUTURE
YEARS TOTALS
1001 - General Fund $600,000 $600,000
4100 - Public Facility Fees $228,464 $9,114,394 $524,000 $9,866,858
9999 - Developer Built $12,857,142 $12,857,142
TOTAL $228,464 $22,571,536 $524,000 $23,324,000
ANNUAL OPERATING IMPACT $660,000 $660,000 $660,000 $660,000
Budget Change Reference #:
From Un-Appropriated Reserves Budget Transfer Between Funds
From Designated Reserves X Other
Account Amount Account Amount
PK0115.9200.9201 (Contract Service General)$1,500,000
3500.9501.49999 (Transfers In)$1,500,000
PK0115.1001 (1001.9501.89101) - General Fund Transfers Out $1,500,000
11/3/2020
Posted By:Date:
As Presented at the City Council Meeting
**********Finance Use Only**********
CITY OF DUBLIN
REASON FOR BUDGET CHANGE
FISCAL YEAR 2020-21
BUDGET CHANGE FORM
DECREASE BUDGET AMOUNT INCREASE BUDGET AMOUNT
City Council's Approval Required
EXP: Don Biddle Community Park (PK0115)
To account for increases in Zone 7 water connection fees, increases in DSRSD water capacity fees, and unanticipated pre-construction
services costs
G:\Budget Changes\13_2020-21\City Council\06_GI0120 Cultural Arts Ctr_110320