HomeMy WebLinkAboutItem 4.05 AmendAgmtGHCTr7075 CITY CLERK
File # J(",o 0110 -I~1101
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 20, 2004
SUBJECT: Second Amendment to Tract Developer Agreement, Tract 7075
(Tassajara Creek, Phase I - GHC Investments, LLC)
Report Prepared by: Melissa Morton, Public Works Director
ATTACHMENTS: 1) Resolution Amending the Tract Developer Agreement
for Tract 7075, together with Exhibit "A" of Resolution
2) Exhibit "A" of City Council Resolution No. 52-03
3) Original Tract Developer Agreement with GHC
Investments, LLC, for Tract 7075 improvements
4) Location Map
RECOMMENDATION: ,/7~ Adopt Resolution extending the completion date of the Tract
Developer Agreement for Tract 7075 an additional 6 months or until
~ October 16, 2004
FINANCIAL STATEMENT: GHC Investments, LLC, has provided a Performance Bond and a
Labor and Materials Bond to guarantee construction of public right-
of-way improvements, including landscaping, and required site
improvements, and will pay the cost of the associated construction
inspection.
DESCRIPTION: On April 3, 2001, the City Council via Resolution No. 48-01
authorized the Mayor to execute a Tract Developer Agreement with GHC Investments, LLC, for public
right-of-way and site improvements associated with Tract 7075, a subdivision located in Eastern Dublin,
west of Tassaj ara Road. The Agreement allowed the developer 420 calendar days to complete the
improvements. The Agreement was subsequently amended via City Council Resolution No. 52-03 to
extend the completion date to April 16, 2004.
Although the improvements are nearing completion in accordance with the approved plans and
specifications, certain improvements will not be finished within the timeframe allowed by the agreement.
Specifically, the on-going construction ofhom~es within the subdivision is preventing the public
improvements from being finalized. GHC Investments, LLC, has thus requested a second amendment to
the governing Tract Developer Agreements to extend the completion date by an additional 6 months to
allow time to complete the remaining work.
The Public Works Director has determined that it is in the best interest of the City to extend the
completion time specified in the amended Agreement. The improvements will continue to be guaranteed
......................... ~ .............
COPIES TO: Tim Quinn, Greenbriar Homes Communities
ITEM NO.
G:\DEVELOP\Greenbriar~Tassajara Creek~agst 2nd amend tr dev agmt Tr 7075.doc
by the original Performance Bonds and Labor and Materials Bonds, and the Developer's insurance will
remain in effect as required by the original Agreements.
Staff recommends that the City Council adOpt the Resolution approving the second amendment to the
Tract Developer Agreement for Tract 7075 to extend the completion date an additional 6 months, or until
October 16, 2004.
Page 2
RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING SECOND AMENDMENT TO THE
TRACT DEVELOPER AGREEMENT FOR TRACT 7075
(TASSAJARA CREEK PHASE I BY GHC INVESTMENTS, LLC)
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and GHC Investments, LLC
(hereinafter referred to as "DEVELOPER"), entered into a Tract Developer Agreement (hereinafter
referred to as "AGREEMENT") on April 3, 2001 pursuant to City Council Resolution No. 48-01; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 420 days following the date of execution;
and
WHEREAS, the AGREEMENT was amended via City Council Resolution No. 52-03 to extend the
completion date to April 16, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend
the completion date by an additional 6 months or until October 16, 2004 to allow the DEVELOPER time to
complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the AGREEMENT
by 6 months, or until October 16, 2004; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth in
the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect;
NOW, THEREFORE, BE IT RESOLVED that the second amendment (attached hereto as Exhibit
"A" of this Resolution) to the Tract Developer Agreement for Tract 7075 is hereby approve&
BE IT FURTHER RESOLVED that the Mayor is authorized to execute Exhibit "A".
PASSED, APPROVED AND ADOPTED this 20th day of April, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: Mayor
E)L'~BIT "A" O~
RESOLUTION NO. -04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
SECOND AME~MENT TO T~CT DE,LOPER AG~E~NT
FOR T~CT 7075 (TASSA~ C~EK~ PHASE I - G~ENB~)
BET~EN CITY OF DUBL~ ~ GHC I~STMENTS, LLC
W~AS, the Ci~ of DuMin (h~einafter rege=ed to as "CITY") and GHC ~ves~ents, LLC
(hereinaaer rege=ed to as "DE~LOPEW'), ent~ed into an Tract Developer A~eement (hereinafter refe~edto as
AG~E~) on Ap~l 3, 2001 p~suant to Ci~ Council ~esolution No. 48-01; and
W~AS, Section 1 of said AG~EMENT states that the DEVELOPE~ shall complete all
improvem~ts gove~ed by the AG~EME~ not later than 420 days gollo~ng the date of the execution; and
W~AS, the AO~E~ was pre~ously amended via Ci~ Co~cil ~esolution No. 52-03
to extend the comple6on date to April 16, 2004; and
W~AS, the DEVELOPEk has requested a second amendment to the AG~EMENT to
extend the completion date by an additional 6 months or ~til October 16, 2004 to allow the DEVELOPE~ time to
complete ~e remaining work; and
W~AS, it is in ~¢ best interest of the CI~ to ext~d ~e completion date ogthe
AG~E~; and
W~AS, this Amendment hereby inco~orates by reference all te~s and conditions set fo~h
in the AG~EMENT, and all te~s and conditions which are not specifically modified by this Amendment shall
remain in full force and effect; and
NOW, T~FO~, the paaies hereto a~ee as follows:
Completion time for the improvement work governed by the AG~EMENT is hereby extended an
additional 6 months or ~til October 16, 2004.
CITY OF DUBL~
ATTEST: Mayor
GHC Investments, LLC;
City Clerk A Delaware Limited Liability Company
By: Greenbriar Homes Communities, Inc.
A California Corporation, Its Manager
Print Name: ~;TE; c ~ -'~' ,
Title: ~'~ c~D~,' U;E~,
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EXHIBIT "A" OF
A RESOLUTION OF TltE CITY COUNCIL
OF TI:IE CITY OF I)UBL/N
AMENDMENT TO TRACT DEVELOPER AGREEMENT
FOR TRACT 7075 (TASSAJARA CREEK, PttASE I - GREENBRIAR)
BETWEEN CITY OF DUBLIN AND GHC INVESTMENTS, LLC
Wl~EREAS, the City of Dublin (hereinafter referred to as "CITY") and GHC Investments, LLC
(hereinafter referred to as "DEVELOPER"), entered into an Tract Developer Agreement (hereinafter referred to as
AGREEMENT) on April 3, 2001; and
WHEREAS, Section 1 of said AGREEMENT states that the DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 420 days following the date of the execution; and
wme~REAS, the DEVELOPER has agreed to amend the AGREEMENT to extend the completion
date to April 16, 2004; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the
AGREEMENT; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth
in the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect; and
NOW, THEREFORE, the parties hereto agree as follows:
Completion time for the improvement work governed by the AGREEMENT is hereby extended to
April 16, 2OO4.
C~,y OF DUBLIN
"- *- City Cl~rk a Delaware limited liability company
By: Greenbriar Homes Communities, Inc.
A California Corporation
By:
Ronald Mukai
Its: Vice President
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'C~TY OF DUBLIN
TRACT DEVELOPER AGREEM'ENT
This agreement:is made and entered into thi day. f 2001, by and
between the City-of Dublin, a-municipal· corpOration, 'hereinafter refer~red to as "ciTY", and
G.H.C. Investments, LLC hereinafter referred .to as "DEVELOPER".
WITNESSETH
WHEREAS it has been determi~ried~by~.the~Ci.ty~G~un¢i~..e~.the..~ity~f...Dub~in.r..~State~f ........
California, that DEVELOPER, . as a' subdivider, . desires -to improve and" dedicate certain public
improvements shown-on Tract Map .:7075, in acc0tdance with. the requirements and
conditions set. forth within the City of Dublin Planning .Commission· Resolution No. 00-10
adopted on February 22, 2000; the requirements of the Subdivision Ma'p Act of the State of
California and the Subdivision Ordinance of the City of Dublin; and those certain plans and
.specifications for said development approVed by said City-Council, and now on file in'the office
of the Public Works 'Director/City Engineer, which are hereby referred to for a more definite
and distinct description of the work to be performed under this Agreement as though set.forth
at length herein; and
WHEREAS, Developer intends to'-satiSfactorily-complete the required imp.roveme.a't as
described in Exhibit "A" attached .hereto. within the time hereinafter specified, and City intends
to accept Developer'¢ offer(s) Of dedication of said improvement(s) in consideration for
Developer's satisfactory performance of the terms and.. conditions of this Agreement:
NOW, THEREFORE, in consideration ,.of the mutual .promises, conditions and
covenants herein contained, the parties agree as follows.:
1.. Co~'!efion Time. Developer will .cOmmence the work required by this
A ,re~ment'.~ith.in ~i'~ (~60) day_~ foflowin the date on w~.h.i._c_h_ Cig executes this_~g~__e_m...ent
........ ~me,n_~.- , _~y_~ ............ -*--.. ...... ,~ ....... ~~aa...~5~e_ ............... ~ ........... -:-... .............. :~._.,_,~_.._?.?~ ............
'Develo.~'r shall· ~om.plete said work not later than four hundred twenty (420)·days followmg .
said' date of executi'o.m Time is of. the essence m this Agreement. Upon completion,
Deve!oper shall fUrnish City with a complete and reproducible set' of final as-built pians,
including any authorized modifiCations.
2; Bonds Fumished. Concurrently with-the execution of this Agreement, Developer
shall furnish City with a Faithful Performance Bond and a. Labor and Materials Bond. Each
bond shaft be in .a form presCribed by City, and shall be issued by a company duly' and legally
licensed to. condL~.ct a general Surety' business i.n the State of California. Each ·bond'
become a part of this Agreement.- :
Page
~S\de ,~eio~greenbriar\trctagm~7075 acc
a. Faithful Performance Bond. Developer shall furnish City-with bonds
) .conditioned upon the faithful performance of this Agreement, said bonds to be in the total
-penal sum .of $ 3,967,$90.
b; Labor. and Matedats Bond~ Developer shall furnish CitY with a bond
c.onditio~,ed upon payment of 'all claims for labor and materials used or consumed 'in the-
Performance of this Agreement., Said bond shall comply with the laws of. the State. of
Califomia, and with Title' 15, Part 4, Division 3 of the Civil Code of the State Of Califomia
(commencing with Section 3082), Said ~bonds-shall be in the total, penal sum of $1,983,845.
3. Insurance Required. .ConCurrently with the execution, of this Agreement,
a; W~)rke. r's ComPensation 'Insurance. Statut0~ coverage as. required to
cover the full liability of Developer in accordance with the provisions or' DivisiOn iV of the Labor
Code of the state of California, and an .employer's liability insurance coverage with a limit of
not less than ,$100,000 per occurrence to cover any claims arising .from employment not
covered by worker's compensation laws.
b. ~omprehensive General 'Liability lnsu'rance. Minimum limits of liability
shall not be less than $1,000,000 per occurrence combined single limit bodily injury, and
property damage coverage; any deductible provision shall not exceed $1,000 per claim, and
~)' 'each and .every policy must contain a cross liability or.severabil[ty of interests cia'use.
c. Comprehensive Automobile Liability Insurance. Minimum limits of liability
shall .be not less -than $1,000,000 per occurrence combined' .single limit bodily injury and
property.damage coverage; coverage shall include Owned, non-owned, and hired vehicles,
and each and every policy must contain a cross liability Of severability: of interests clause.
d. Other Requirements. Ail insurance policies Shall be 'issued bY a company
legally licensed to transact.busi.ness in the State of California.; shall be. issued .at Developer's
of this contract, and must have. an "A:M. BEST" rating of B% X or better; All certificates bf
insurance shall name the City and its officer's; agents and employees as additional insureds,
Shall contain a.provision that a written notice of cancellation or reduction in.coverage shall be
furnished 'the City (10) ten days in advance of the effective .date .thereof, and shall state that
such coverage is primary to any other coverage of City.
4. Work Performance and .Guarantee. Developer shall secure the services of those
skilled in the trade, profession, or calling necessary to. perform the. work to be' accomplished
under the terms of this contract, and shall guarantee and maintain the work for a period of one
('~) year following the completion and 'acceptance thereof against any defeCtiVe workmanship
or defective materials furnished in' the performance of this Agreement, and any acceptance of
) the-work by City will not operate as a release to Developer o'r'.Deveioper's bondsmen from the
-' aforesaid guarantee.
P~ge 2
5.. Inspection' of the. Work. Developer shall guarantee free access to City 'through
its Public Works Director/City .Engineer 'and his designated representative for the safe and
convenient inspection of the work throughout, itS.'const~uction. Said City representative Sh.all
have. the auth°dty to reject, all materials and workmanship which are not ih accordance with
the I~lans and specifications, and all such:materials and or'work shall be removed promptly by
Developer and replaced to the satisfaction of City without any expense to City in Strict.
accordance with 'the improvement, plans and specifications.
6, Agreement Assignment: This Agreement shall not be assigned by Developer
without the written consent of City. '
7. Abandonment of Work. If the work' to be done under this Agreement is.
abandoned for more than .sixty (60) days., Or if this Agreement is assigned by Devei.oper
without Written consent of City subject to Section 17.1 of the Development Agreement
between the City of Dublin and G.H.C. investments, LLC, o'r if City through its City Engineer
determines that the. said work or any part' thereof is being-unnecessarily or unreasonably
delayed or that Developer is'willfully violating anY of the 'donditions or covenants, of .this
Agreement or is executing this Agreement in bad faith, the. City shall have the authority to
order Developer to. discontinue all Work or anY part .thereof under this Agreement, and'
Developer. shall cease to continue the work.or such part thereof as City may.' designate, and
City shall thereupon have the power to Obtain by Agreement,. purchase, rental' Or otherwise, all'
labor, equipment.'and materials deemed necessary, to complete the work and to' .use Such
materials as may be'found upon the'line of Such work. DevelOper and his sureties shall be
liabie for all expenses 'incurred by City for.the acquisition and use of such tabor, equipment,
and materials.-
-. 8. Use of Streets'.or improvements. At all times prior to the final acceptance of the
· work by .City, the use of any or alt streets and improvements within the work to be performed
under this Agreement shall.be at the sole and excl:usive risk of Developer. The. issuance of
any building or occupancy permit' by City for dwellings located Within the trac[ shall not be
construed in any. manner to Constitute a partial or final B~e~,nce or"al~Eroval of a~n~. or all
· issuance of building .or occupancy permits when the work or its progre§s may. substantially
and/or det.rimenta!ly affect public health and safety.
9. Safety Device& Developer shall provide, and maintain such' guards, watchmen,
fences, barriers, regulatory, signs, warning lights,'.and other safety devices adjacent to and on
the tract site as may be necessary to prevent accidents to the public and darnage to the
property. Developer Shall furnish, place, and mai'nt'ain.such lights as may.be necessary for
illuminating the s. aid fences, barriers, signs, and other safet:Y devices.. At the end of all work to
-be performed under this Agreement, all fences, barriers, regulatory.signs, warning lights, and.
'other safety devices iexcept such sa'fety, items as. may be Shown on the plans and included in.
the items of wo. rk) shall be removed from site. of the work by the.Developer, and the entire site
· left clean and orderly.
P~ae 3
g'~deveiOD\greenbdaF~trct~amtTO75 doc
10. 'Acceptance of Work. UpOn: notice 'of the completion .of all tract work and ..the
delivery of a set of final as-built plans to City by .D.eveiopers, City, through its City Engineer or
.his designated represen[ativel shall examine the tract work without delay, and, if found to be. in
accordance with said plans and specifications and this Agreement, shall' accept the work and
n~tify Developer. or his d&signated agents of such acceptance.
11, Patent and Copyright Costs. In the event that said plans .and specifications
. require ~he use of any .material, process' or pUblication which is subject to a duly registered
patent or copyright, Developer shall be liable for, and shall !ndemnify City from any.fees, costs
or litigation expenses, including attorneys' fees and court costs, which'may result from the use
.... of...said-patented-.or.-eopyrighted-material., process, er.p.ubli -~.-~tion~ ...........................................................................................................
12. Alterations in Plans and Sp-ecifi~ations. Any altcratio.n or alterations made in the '
.plans and specifications which are a part of this Agreement or any provision of this-Agreement
shall not operateto release any surety or sureties from liability on any.bond or bonds attached
hereto and made a pa'rt, hereof, and consent to make such'alterations is hereby given, and the
suJ'eties to said bonds hereby waive the provisions of Sectio.n 2819'of the Civil Code.of the
State of .california.
13. L. iability.
a. Developer Primarily Liable. Developer shall be responsible for' any and all
loss, accident, neglect, injury or damage to person, life or property which may be the result of'
0i' maybe caused by construction, operations, in connection With this agreement and for which --,
City might, be held liable. De~/eloper Shall protect, and, indemnify the City of Dublin, the City
Council, the 'City Engineer and/or any officer, agent or employee of the City,' 'and save 'them
harmless in .every way from .all suits or actions at law for damage or injury to persons,, life Or
property that may arise or be occasioned i.n, any way because of construction operations or
.~xec.ution of this-Agreement, except for negligence or willful misconduct of the City.
b. ' Design Defect, lf,'in the opinion 'of the City, a design defect in the work' of .
improvement, becomes apparent during' the course. of construction., or within one (1) year
fo.ilowing acceptance by the City of the improvements, and said design defect, in 'the opinion of
the City, may substantially impair the Public health and safety, Developer shall, upon order by
the City., correct said design defect at his sole cost and expense, and the sureties under the
Faithful Performance and Labor and Materials, Bonds shall be liable to the City for the
corrective work required.
c. Litigation Expenses..in the event.that legal action is instituted by either
pa~ty 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 evenf judgment is
entered in said action, the prevailing party shall, be entitled to recover its attorneys', fees and
court costs~
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14. INDEMNIFICATION. DEVELOPER agrees to indemnifY, .defend and hold
harmless CITY, and .its elected and .appointed councils, boards, commissions, officers', agents,
emp0yees, and representatives from any and'all claims, costs (including legal fees a~ costs)
and 'liability for any fines or penaltieS which may arise directly or indirectlY as a result, of
'DEVELOPER's. not filing a Report of.Waste Discharge with the Regional Water Quality COntrol
Board (."Board") in connection with the. construction of the storm drain' oUtfatl foe ~Fract 7075.
a, C.ity Cooperation.. if CiTY is named as a party 'to any legal action
(inCluding any administrative enforcemerit proceeding), CITY wilt cooperate with
DEVELOPER; will .appear in such action or proceeding, and will not unreasonably 'withhold
approval of a settlement Otherwise acceptable to DEVELOPER.
b. Survival Provisions. The .provisions of this section shall' survive.
completion of the work required bY this agreement and, acceptance- of the storm drain outfall'
by the .CITY. The provisions of.this section are applicable .to any costs (including legal fees
and costs), fines Or penalties imposed as a result of any action (including any administrative
enforcement proceeding) commenced by the Board within 'the applicable three (3) year statute
.of limitations pedod for actions based, on the Porter-Cologne Water Quality Control Act related
to construction of the storm drain outfall.
IN'WITNESS WHEREOF, the parties hereto have executed this Ag~'eement in dUplicate
)
at Dublin, California, the day and year first above written.
'CITY OF DUBLIN DEVELOPER
GHC Investments., LLC
a Delaware limited liability company
By.: Greenbriar Homes '~ommunities, Inc.
a California corporation
By . B Patrick Costan]~o,P3r.'
Its Senior .Vice President
ATTEST:
Page 5
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