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HomeMy WebLinkAboutItem 4.02 AgmtGHCRoxybury CZTY CLERK Fae #1 I1 1 AGENDA STATEMENT CZTY COUNCTL MEETZNG DATE: April 20, 2004 SUBJECT: Approval of Improvement Agreements for the Tassajara Creek North (Somerset Lane) and Tassajara Creek South (Maymont Lane) Bridges associated with Tract 7414 (Tassajara Creek Phase 3 - GHC Roxybury, LLC) Report Prepared by: Melissa Morton, Public l/Vorks Director ATTACHMENTS: 1) Resolution approving the Improvement Agreements 2) Improvement Agreement for the Tassaj ara Creek North Bridge (Somerset Lane) 3) Improvement Agreement for the Tassaj ara Creek South Bridge (Maymont Lane) 4) Vicinity Map RECOMMENDATION: Adopt the resolution approving Improvement Agreements for the  Tassajara Creek North (Somerset Lane) and Tassajara Creek South (Maymont Lane) bridges associated with Tract 7414 FINANCIAL STATEMENT: GHC Roxybury, LLC has provided a Faithful Performance Bond and a Labor and Materials Bond, each in the amount of $1,104,600.00 for the Tassaj ara Creek North Bridge (Somerset Lane), and a Faithful Performance Bond and a Labor and Materials Bond, each in the amount of $719,100.00 for the Tassajara Creek South Bridge (Maymont Lane) to guarantee construction of the public bridge improvements, and will pay the cost of associated construction inspection. Once these improvements have been constructed and accepted} the City will incur maintenance costs for the public bridge improvements. DESCRIPTION: Greenbriar Homes Communities (d.b.a. GHC Roxbury, LLC) is required by the Conditions of Approval for Tract 7414 (Tassajara Creek Phase 3) to construct two vehicle bridges over Tassajara Creek to serve the future subdivision. Tract 7414 is located in Eastern Dublin on the west side of Tassajara Creek, immediately west of Greenbriar's Phase 1 and 2 subdivisions. Greenbriar intends to begin construction of the two new bridges in advance of other required subdivision improvements to provide access to the project site. As an interim measure, Greenbriar also secured COPIES TO: Tim Quinn, Greenbrair Homes Comm~ ITEM NO. G:\DEVELOP\Greenbriar~Tassajara CreekLPHASE IllLagst imp agmt_ bridges Tr 7414.doc permission from Alameda County and from the U.S. Airforce to cross Alameda County property along the west side of Tassajara Creek for construction access. Two separate Improvement Agreements, each guaranteed by Faithful Performance and Labor and Materials Bonds, have been executed by GHC Roxybury, LLC, to assure that all required bridge improvements are installed to the City's satisfaction. The improvement plans for both bridges have been reviewed by Staff and found to be in substantial conformance with adopted City standards. The required inspection deposit and insurance certificates have also been submitted. Staff recommends that the City Council adopt the Resolution approving the Improvement Agreements for Tract 7414 with Roxybury, LLC for construction of the Tassajara Creek North (Somerset Lane) and Tassajara Creek South (Maymont Lane) bridges. Page 2 c~X- RESOLUTION NO. - 04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING IMPROVEMENT AGREEMENTS FOR THE TASSAJARA CREEK NORTH (SOMERSET LANE) AND TASSAJARA CREEK SOUTH (MAYMONT LANE) BRIDGES ASSOCIATED WITH TRACT 7414, TASSAJARA CREEK PHASE 3 (GHC ROXYBURY, LLC, A DELAWARE LIMITED LIABILITY) WHEREAS, the City of Dublin Planning Commission adopted Resolution No. 03-51 on October 28, 2003, which approved the Vesting Tentative Map and Site Development Review for the Tassajara Creek Phase 3 project (P.A. 02-048); and WHEREAS, Condition of Approval No. 34 of Planning Commission Resolution No. 03-51 requires the applicant to construct two vehicle bridges over Tassajara Creek, one at Somerset Lane termed the Tassajara Creek North Bridge, and one at Maymont Lane termed the Tassajara Creek South Bridge, to serve the future subdivision; and WHEREAS, Roxybury, LLC, has now executed and filed with the City of Dublin two separate Improvement Agreements to construct said Tassajara Creek North Bridge and Tassajara Creek South Bridge in accordance with improvement plans and specifications approved by Staff, with completion required on or before April 20, 2006; and WHEREAS, said Improvement Agreement for the Tassajara Creek North Bridge (Somerset Lane) is secured by bonds each in the amount of $1,104,600.00 (Bond Nos. 869104S) issued by Insco Insurance Services, Inc., conditioned upon faithful performance and upon payment for labor or materials furnished under the terms of said Agreement; and WHEREAS, said Improvement Agreement for Tassajara Creek South Bridge (Maymont Lane) is secured by bonds each in the amount of $719,100.00 (Bond Nos. 869105 S) issued by Insco Insurance Services, Inc., conditioned upon faithful performance and upon payment for labor performed or material furnished under the terms of said Agreement. NOW, THEREFORE, BE IT RESOLVED that said Agreements and bonds are hereby approved, and the Mayor is hereby authorized by the City Council to execute the Improvement Agreements. PASSED, APPROVED AND ADOPTED this 20th day of April, 2004. AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk c,~ ~.'} ~r.,:~.~ ~ ~ CITY OF DUBLIN IMPROVEMENT AGREEMENT TASSAJARA CREEK NORTH BRIDGE (SOMERSET LANE) IMPROVEMENTS FOR TRACT 7414, TASSAJARA CREEK' PHASE III (GREENBRIAR HOMES COMMUNITIES, INC,) This agreement is made and entered into this 20th day of April, 2004, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and GHC Roxbury, LLC, a Delaware Limited Liability Company (hereinafter referred to as "DEVELOPER"). RECITALS WHEREAS, it has been determined by the City Council of the City of Dublin, State of California, that DEVELOPER, as a subdivider, desires to improve and dedicate certain public improvements (hereafter "The Improvements") shown on Tract 7'414, in accordance with the requirements and conditions set forth within the City of Dublin Planning Commission Resolution No. 03-51 (PA 02-48), adopted on October 28, 2003, and City Council Resolution No. 225-03 adopted on November 18, 2003; the requirements of the Subdivision Map Act of the State of California and the Subdivision Ordinance of the City of Dublin; and those certain plans and specifications for said development approved by the Public Works Director on ,2004, as follows: · "Improvement Plans Tassa/ara Creek North Bridqe Improvements (Somerset Lane") (3 Sheets: 1-3), prepared by Ruggeri-Jensen-Azar & Associates. · "Tassa/ara Creek North Bridge"(15 Sheets: S-1 to S-12, S-7A, S-8A, and S-9A), prepared by Biggs Cardosa Associates. Inc. Said plans are now on file in the office of the Public Works Director/City Engineer, and are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept DEVELOPER's offer(s) of dedication of right-of-way and The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: Section 1. Completion Time. DEVELOPER will commence construction of The Improvements within ninety (90) days following the date on which CITY executes this Agreement. DEVELOPER shall complete such Improvements no later'than two years following execution of this agreement or not later than April 20, 2006. Upon completion, DEVELOPER shall furnish CITY with a complete and IMPROVEMENT AGREEMENT ~ ~,~.~ ~a. ~'~I ~ ~[ ~. ~ ~k~~ ~1~ K:XPROJECTS\DUBLIN\Tassajara Itl~BRIDOESXlmprovement Agreement_ Nor th Bridge. DOC [~! t i'-~ t¥~ [~ ~ ~. reproducible set of final as-built plans of The Improvements, including any authorized modifications. Section 2. Estimated Cost of Improvements, For purposes of this Agreement, the estimated cost of conStructing The Improvements is agreed to be One Million One Hundred Four Thousand Six Hundred and 00/100 Dollars ($1,104,600.00). Said amounts include costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured. Section 3. Bonds Furnished. Prior to commencing construction of the improvements, DEVELOPER shall .furnish CITY with the following security in a form satisfactory to the CITY Attorney: a. Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred percent _ (100%) of the estimates set forth in Paragraph 2 and sufficient to assure CITY that The ImproVements will be satisfactorily completed. b. Labor and Materials. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred percent (100%) of the estimates set forth in Paragraph 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor. CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisions of Chapter 5 of the Subdivision Map Act. Section 4. 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 approved by the Administrative Services Director of CITY, or his designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, as to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for DEVELOPER and DEVELOPER's general contractor shall have been so obtained and approved. Said insurance shall be maintained in full force and effect until the completionof work under this Agreement and the final acceptance thereof by CITY. All requirements herein provided sh~ll appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. IMPROVEMENT AGREEMENT Page 2 of 10 K:LPROJECTS\DUBLINWassajara lllXBRIDGES\Improvement AgreemenL North Bridge.DOC April 1, 2004 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 GL 0404 covei'ing 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. OWNER 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, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials and employees; or the DEVELOPER shall procure a bond guaranteeing payment of losses 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 Covera,qes. (a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the DEVELOPER; products and completed operations of the IMPROVEMENT AGREEMENT Page 3 of 10 K:~PROJECTS~DLIBL1N~Tassajara lliX,BRIDGES\Improvement Agreement_ North Bridge. DOC April 1,2004 DEVELOPER; premises owned, occupied o'r used by the DEVELOPER; or automobileS owned, leased, hired or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. (b) The DEVELOPER's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. (c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. (d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (ii) Workers' Compensation and Employers Liability Coveraqe. The insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees and volunteers for losses arising from work performed by the DEVELOPER for the CITY. (iii) All Coveraqes. 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. (a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. (b) Verification of Coveraqe. 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. (c) Subcontractors. DEVELOPER and/or DEVELOPER's general contractor shall include all subcontractors as insureds IMPROVEMENT AGREEMENT Page 4 of 10 K:LPROJECTS\DUBLIN\Tassajara III~BRIDGES~Improvement Agreement_ North Bridge. DOC April 1,2004 Under its policies or shall obtain separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the req¢irements stated herein. Section 5. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guarantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to the work, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one-year guarantee period without expense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and agrees that when defects in design, workmanship and materials actually appear during the one- year guarantee period, and have been corrected, the guarantee period shall automatically be extended for the corrected items for an additional year to insure that such defects have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days time or such longer time period as agreed to in writing by the City Engineer,. after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results in a condition which constitutes an immediate hazard to the public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of CITY. If CITY, at its sole option, makes or causes to be made the necessary repairs or replacements or performs the necessary work, DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work, twenty-five percent (25%) of such costs and expenses for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30) days from the date of billing for such work or repairs. Section 6. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its City Engineer and his designated representative for the safe and convenient inspection of the work throughout its construction. Said CITY representative shall have the authority to reject all materials and workmanship which are not in accordance with the plans and specifications, and all such materials and'or work shall be removed promptly by OWNER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the Improvements plans and IMPROVEMENT AGREEMENT Page 5 of 10 K:~ROJECTS~DUBLIN\Tassajara IIIX,BRIDGES\Improvement Agreement_ North Bridge. DOC April 1,2004 specifications. Section 7. Agreement Assignment. DEvELoPER shall not assign this Agreement without the written consent of CITY, which consent shall not be unreasonably withheld. Section 8. Abandonment of Work. Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be considered to be agents of CITY in connection with the performance of DEVELOPER's obligations under this Agreement. If DEVELOPER refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extension thereof, or fails to obtain completion of said work within such time, or'if DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER, or any of DEVELOPER's contractOrs, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its City Engineer may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of DEVELOPER. 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. Section 9. Notices All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage prepaid. Notices required to be given to CITY shall be addressed as follows: Melissa Morton Public Works Director City of Dublin 100 Civic Plaza Dublin, CA 94568 IMPROVEMENT AGREEMENT Page 6 of 10 K:kPROJECTS\DUBLIN~Tassajara IIIkBRIDGES~Improvement Agreement_North Bridge. DOC April 1, 2004 Notices required to be given to DEVELOPERshall be addressed as follows: GHC Roxbury, LLC c/o Greenbriar Homes Communities, Inc. Patrick Costanzo, Executive Vice President 43160 Osgood Road Fremont, CA 94539 Notices required to be given surety of DEVELOPER shall be addressed as follows: Company Name: Developers Surety and Indemnity Company Attention: Richard S. Svec Street Address: 17780 Fitch, Suite 200 City: Irvine , State: CA , Zip Code: 92614 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. Concurrently with the execution of this Agreement, DEVELOPER has executed and has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CITY may record said abstract in the Official Records of Alameda County. Section 10. Use of Streets or Improvements. At all times prior to the final acceptance of the work by CITY, the' use of any or all streets and improvements within the work to be performed under this Agreement shall be at the sole and exclusive risk of DEVELOPER. The issuance of any building or occupancy permit by CITY for dwellings located within the project site shall not be construed in any manner to constitute a partial or final acceptance or approval of any or ail such improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially and/or detrimentally affect public health and safety. Section 11. Safety Devices. DEVELOPER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the site of The Improvements as may be necessary to prevent accidents to the public and damage to the property. DEVELOPER shall furnish, place, and maintain such lights as may be necessary for illuminating the said fences, barriers, signs, and other safety devices. At the end of all work to be performed under this Agreement, all fences, barriers, regulatory signs, warning lights, and IMPROVEMENT AGREEMENT Page 7 of 10 K:kPROJECTSXDUBLINXTassajara III'd3RIDGES\Improvement Agreement_ North Bridge.DOC April 1,2004 .other safety devices (except such safety items as.may be shown on the plans and included in the items of work) shall be removed from site of the work by the DEVELOPER, and the entire site left clean and orderly. Section 12. Acceptance of Work and Right-of-Way. Upon notice of the completion of The Improvements and the delivery of a set of final as- built mylar plans with electronic file to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine the work without delay, and, if found.to be in accordance with said plans and specifications and this Agreement, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify DEVELOPER or his designated agents of such acceptance subject to Section 5 above. If not previously dedicated on the final map for Tract 7414, DEVELOPER shall dedicate to CITY by separate instrument any right of way and easements deemed necessary by the City Engineer for the acceptance and maintenance of The Improvements, and, at acceptance of the Work, CITY shall accept said right-of-way and maintenance easement dedications. - Section 13. Patent and Copyright Costs, In the event that said plans and specifications require the use of any material, process or publication which is subject to a duly registered patent or copyright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. Section 14. Alterations in Plans and Specifications. Any alteration or alterations made in the plans and specifications which are a part of this Agreement or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. Section ;15. Liability. a. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the design and construction of The Improvements will be performed in a proper manner. DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers agents and employees, from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action of every kind, nature and description, directly or indirectly arising from an act or omission of DEVELOPER, its employees, agents, or independent contractors in connection with DEVELOPER'S actions and obligations hereunder; provided as follows: (i) That CITY does not, and shall not, waive any rights against IMPROVEMENT AGREEMENT Page 8 of 10 K:~PROJECTS\DUBLINWassajara IllXBRIDGESXImprovement Agreement_ North Bridge. DOC April 1, 2004 DEVELOPER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any of the insurance policies described in Paragraph 3 hereof. (ii) That the aforesaid hold harmless agreement by DEVELOPER shall apply to all damages and claims for damages of every kind suffered, or all'eged 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. b. Design Defect. If, in the opinion of the CITY, a design defect in the work of Improvements becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of the Improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, OWNER 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 party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, andl 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 3. Section 16. Indemnification and Waiver. DEVELOPER shall defend CITY, its officers, employees and officials, against any claims or actions (including declaratory or injunctive relief) concerning DEVELOPER's construction of The Improvements on DEVELOPER's property and shall indemnify and hold CITY harmless from any damages, charges, fees or penalties that may be awarded or imposed against CITY and/or DEVELOPER in connection with, or on account of, DEVELOPER's construction of The 'Improvements and/or CITY's failure to enforce or comply with any applicable laws. Section 17. Recitals. The foregoing Recitals are true and correct and are made a part hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year first above written. IMPROVEMENT AGREEMENT Page 9 of 10 K:~PROJECTS~DUBLINWassajara IIIXJ3RIDGES~Improvement Agreement_ North Bridge. DOC April 1, 2004 CITY OF DUBLIN: DEVELOPER: GHC Roxbury, LLC A Delaware Limited Liability Company By: By: Greenbrier Homes Communities, Inc. Janet Lockhart, Mayor A California Corporation, Its Manager Date: By: ~ot~~ ATTEST: /~,/~-T-'¢7C~:, ~o% ~-.~.,,z z-.o; ~ Typed or Printed Name' ' By: Kay Keck, City Clerk E/~c~,~T~ Title Date: ¢/--~ ~ Date IMPROVEMENT AGREEMENT Page t 0 of I 0 K:kPROJECTS\DUBLIN~Tassajara IIlkBRIDGES\Improvement Agreement_ North Bridge. DOC April 1, 2004 CALIFORNIA ALL-puRposE ACKNOWLEDGMENT State of California County of d"/_~/t~H -6 J ~ / sS. On..~,' *.;-~ ~_ ~)'-r..~. before me, /~,4~v' ,~1..,//~,:'.~/c.;,. ,XJ~r'ff'-~,cV'//~_.//~-.~- Dat~( ,, 't Ni~me an~ Title of Officer (e.g.J",Jaee Doe, Notary~ubtic") . ' personally appeared ?-~¢0~- CO$'?~/v*~, ~ , Name(s) of SC~ner(s) -~ersonally known to me to be the person~) whose name(~) subscribed to the within instrument and _. acknowledged to me that he/.h~-h~executed the same in his/l'm'~ authorized capacity(~)~," and that by his/~ 1 ~,~,,.~!l;J~ Akam~l~ ¢....ou~. [ signature(~on the instrument the person(s), or !j ~ My¢omm. rr. Xl~l~,~ the entity upon behalf of which the person,(.s~. ~ 4.- _ -.~ - w ~- ~, ..... acted, executed the instCument. WITNESS my hand and official seal. Place'Notary Seal:Above / ~ Sig'na'ture of Notary Public OPTIONAL Though ~he infon~na~ion be/ow is not required by/aw, it may prove valuable to persons-relying on ~he document and could preven~ fraudu/en! remora~ and reattachmen! of this fo/Tn ~o another document. Description of Attached Document' Title or Type of Document: Document Date: Number o~ Pages: Signer(s) Other Than NamedAbove: Capacity(les) Claimed by Signer Signer's Name: [] Individual 7op of thumb here [] Corporate Officer -- Title(s): [] Partner--[] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator ~ Other: Sigher Is Representing: . 1999 NatienaT Notary Association · 9350 De Soto Ave.. P.O. Box 2402 o Chatsworth, CA 91313,2402 · www. n atio nalnotary, org Prod. No. 5907 Reorder. Call Toll-Free 1-800-876-6827 PREI~:IMINAR¥ ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TASSAJA P.A CREEK ~ NORTH Bt~IDGE DUBLIN, CALIFORNIA January 22, 2004 Job No. 961'i21W SUMMARY 1 BRIDGE STRUCTURE (PER BIGGS. CARDOSA, S.EE ATTACHED) $876,000 A. GRADING/SITE WORK $10,330 B. ASPHALT PAVING $10,640 C. CONCRETE $6,920 D. STORM DRA1N $8,400 E. WATER LINE $12,0.60 F. RECYCLED WATER $10,120 G. MISCELLANEOUS $26,050 SUBTOTAL = $960,520 · . 15% CONSTRUCTION CONTINGENCY = $144,080 GRAND TOTAL = $1,104,600 1. All cost figures are given as 'estimates only. Actual cost Will' be dependent on the cost figures at bidding time; the general market situation, contractor's work load, seasonal factor, labor and material cost, etc. This engineering firm cannot be responsible for fluctuations in cost factors. 2. This cost estimate is based on North Bddge Improvements, dated January.21., 2004 3. 'This estimate does not include Engineering fees and Public AgencieS' fees. 4.- Bridge structure estimate provided by Biggs Cardosa l'ump sum estimate, dated January 21,2004 (see attached) 5. This estimate' does not' include joint trench g:\adm.in\jobs-96\961121\Cost Estimate~l'orthrBridge-Cost-Est.xls Page 1 of 2' t>repared by P. Mi[as .PRELIMINARY ENGINEER'S OPINION OF PROBABLECONSTRUCTION COSTS TASSAJARA CREEK- NORTH BRIDGE. DUBLIN, CALIFORNIA Jailuary 22~ 2004 Job No. 95112'1W ITEN DESCRIPTION QUANTITY UNIT PRICE AMOUNT A. GRADINGISITE.WORK 1. Clear &Grub 1 LS .$5,000.00 $5,000 2. Rough Grading 950 CY $3.50 $3,330 3. Erosion Control · I ~S $2,000.00 $2,000 SUBTOTAL $10,330 B. ASPHALT PAVING 1. Fine Grading (PL to PL) 4,440 SF $0.30 $1,330 2. 4" AB Shoulder of Tra~ 300 SF $1.00 $300 3. AC Pavement ~ (3"114") 2,1'90 SF $3.00 $6,570 4. AC Trail - (3"16'~) 870 SF $2.80 $2,440 SUBTOTAL $10,640 C. CONCRETE I. Sidewalk 124 SF S4.50 $560 2. Handi.cap Ramp 2 EA ¢ $-1,500.00 $3,000 3. 6"Curb & Gutter 280 SF $12.00 $3,360 S U BTOTAL $6,920 D. STORM DRAIN 1. 18" R.C.P. 60 LF $40.00 $2,400 2. Catch Basin 2 EA $3,000,00 $5,000 $8,400 E. WATER LINE 1. 8" PVC (including fittings & valves) 221 LF ,~40.00 $8,840 2. Blow-off 1 EA .$1,200.00 $1,200 3. Relocate 3" Private Water & placed in sleeve 101 LF $t5,00 $1 520 4. Marker for 3"'Private Water 2 EA $250,00 $500 SUBTOTAL $12,060 F. RECYCLED'WATER 1. $" PVC (in'cluding riflings & valves) 223 LF $40.00 $8,920 2. End Line Blow-off 1 EA $1,200.00 $1,200 SUBTOTAL' $I 0,120 G. i~}SCELLANEOUS 1. Signing & Striping 1 LS $1,000.00 $1,000 2. Traffic Sign 1 EA $350.00 $350 3. S[reet Ba~cad~s 2 EA $700.00 $'1.400 4. Trail Entry'StruCture 1 LS $1,000.00 $1,000 5. C350 Matting 4;46Q SE $5.00 $22,300 SUBTOTAL $26.050 8:%dmln\.iob.~-96'~6! 121\C0st .~.s~ima~¢~ol'th-BH~-Cos~~~st.xts Page 2 Of 2 ~e,~ by.~. ~r~ The Ala~d;, T~o~ ~om-m~m-~m~ J~u~21, 2'004 ~=~i~ 4om-mms-m~ ~-4 2001251 Greenbriar Homes Communities 43160 Osgood Road Fremont, CA 94539 Attention: Tim Quinn. Subject: Tassaj-ara Creek Bridges Structure Construction Cost Estimate Dear Tim: B'iggs Cardosa Associates, Inc. has prepared the following construction cost estimate based on the final drawing submittal: North Bridge: $876,000 South Bridge: $564,000 A breakdown of the costs for each 'item ofwo~rk is attached. Should you have any questions in th/s regard, please do not hesitate to Call.. Sincerely, · BIGGS 9ARDOSA AS S O¢/I. ATES,~C. Principal ~,~INAL ESTIMATE. SEISMIC RETROFIT ' ~:~RUCTURE!' TAssAJAP. A CREEK-NORTH BRIDGE BR. NO: ~RCVD,' BY: AND $ ROA~ORK -CHARGE UNIT AND ~ COST .INDEX. Co~E · CONT~C~ITEMS UNiT ouANTI~ CHECK . USE Pm'CE A~ouuT S~U~ BXCAVATION - B~DGB ' CY 161 161 .. $50.00~ $8,050 S~U~ BA~L. B~GB ~ 111 1~1 . $38.00 $4218 ~U~ ~CAVATION.- ~T~ W~ ~ 46 .46 $43.0e $1,97~ ~UC~ BA~- ~TA~G WALL aY 60 60 . .', $37,00 $2,220 F~SH Pm~O (C~SS 70C) ~ 1~ 1,941 ~ $25:00 ~8.525 ~' Dm~ Pine (CLASS 70C) EA 36 36. .$I~600.00 .' $57,600 p~RR~G S~ST G~~ BA 5~ .5 ~ $6r300.00 $31 ~500 ~S~ CONC~ (GI~B~ DE~, D~ C~ 457 - 457 ~ $600,00 $274,200 S~S~ CONC~ (~ ~, RW, APPROAC~ ~ 19A 194 ~550.00 $106,700 ~ B~ St~-C~ST G~BR EA 5 5 $20r000.~0 $100,000 C~L~ ~G ~E ?) LF 132 132. $30.00 $3,960 ~R ~IL~G LF 390 390 $55.00 $21,450 CONC~TE BA~ ~B 25) ~ 195 195 $89.00~ $~ 7,3~ GONC~ BA~ ~PE 26)' LF' 195 195 ~91.00 $~ 7,745 ROUTING MOBILt~TION (10%} $83,~5 1. DESIGN SECTION SUBTOTAL STRUCTURE ITEMS ' $833~6~ 2, DESIGN A SU~ER~IS.OR CONTINGENCIES (5%) .. . 3. DESIGN B SUPERVISOR BRiDGE'TOTAL ( $ / ~) ~IV~t $875,11'8 4. P~NNING BRID~E REMOVAL (cdnt. ind.) $0 woRK BY ~ILROAD OR ~LI~ FORCES G~ND TOTAL $875 FOR BUDGET PURPOSES - SA~. ' . . $876,000 COMMENTS .BSTIM. ATDqG - LAST CITY OF DUBLIN IMPROVEMENT AGREEMENT TASSAJARA CREEK SOUTH BRIDGE (MAYMONT LANE) IMPROVEMENTS FOR TRACT 7414, TASSAJARA CREEK PHASE III (GREENBRIAR HOMES COMMUNITIES, INC.) This agreement is made and entered into this 20th day of April, 2004, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and GHC Roxbury, LLC, a Delaware Limited Liability Company (hereinafter referred to as "DEVELOPER"). RECITALS WHEREAS, it has been determined by the City Council of the City of Dublin, State of California, that DEVELOPER, as a subdivider, desires to improve and dedicate certain public improvements (hereafter "The Improvements") shown on Tract 7414, in accordance with the requirements and conditions set forth within the City of Dublin Planning Commission Resolution No. 03-51 (PA 02-48), adopted on October 28, 2003, and City Council Resolution No. 225-03 adopted on November 18, 2003; the requirements of the Subdivision Map Act of the State of California and the Subdivision Ordinance of the City of Dublin; and those certain plans and specifications for said development approved by the Public Works Director on ,2004, as follows: · "Improvement Plans Tassa/ara Creek South Brid.qe Improvements (Maymont Lane) (3 Sheets: 1-3), prepared bY Ruggeri-Jensen-Azar & Associates. · "Tassa/ara Creek South Brid.qe"(13 Sheets: S-1 to S-13) prepared by Biggs Cardosa Associates, Inc. Said plans are now on file in the office of the Public Works Director/City Engineer, and are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept DEVELOPER's offer(s) of dedication of right-of-way and The improvements-in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: Section 1. Completion Time. DEVELOPER will commence construction of The Improvements within ninety (90) days following the date on which CITY executes this Agreement. DEVELOPER shall complete such Improvements no later than two years following execution of this agreement or not later than April 20, 2006. Upon completion, DEVELOPER shall furnish CITY with a complete and IMPROVEMENT AGREEMt~X/T K:~PROJECTS\DUBLIN~Tassajara IIl~BRIDGES\lmprovement Agreement_South Bridge. DOC reproducible set of final as-built plans of The Improvements, including any authorized modifications. Section 2. Estimated Cost of Improvements. For purposes of this Agreement, the estimated cost of constructing The Improvements is agreed to be Seven Hundred Nineteen Thousand One Hundred and 00/100 Dollars ($719,100.00). Said amounts include costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured. Section 3. Bonds Furnished. Prior to commencing construction of the improvements, DEVELOPER shall furnish CITY with the following security in a form satisfactory to the CITY Attorney: a. Faithful Performance. Either a cash deposit, a corporate surety bond iSsued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred percent (100%) of the estimates set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed. b. Labor and Materials. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred percent (100%) of the estimates set forth in Paragraph 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor. CITY shall be the sole indemnitee 'named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisionS of Chapter 5 of the Subdivision Map Act. Section 4. 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 approved by the Administrative Services-Director of CITY, or his designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and'such insurance shall have been approved by the Administrative Services Director of CITY, as to form, amoUnt and carrier. DEVELOPER shall not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for DEVELOPER and DEVELOPER's general contractor shall have been so obtained and approved. Said insurance shall be maintained in full force and effect until the completion of work under this Agreement and the final acceptance thereof by CITY. All requirements herein provided shall appear either in the body of the insurance policies or as 'endorsements and shall specifically bind the insurance carrier. IMPROVEMENT AGREEMENT Page 2 of l0 K:kPROJECTS\DUBLIN\Tassajara IIl~BRIDGESkImprovement Agreement_South Bridge. DOC April I, 2004 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 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. OWNER 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, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials and employees; or the DEVELOPER shall procure a bond guaranteeing payment of losses 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 Coveraqes. (a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the DEVELOPER; products and completed operations of the IMPROVEMENT AGREEMENT Page 3 of 10 K:\PROJECTS\DUBLIN\Tassajara IIEBRIDGES\Improvement Agreement_South Bridge. DOC April 1, 2004 DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hired or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or Volunteers. (b) The DEVELOPER's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. (c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. (d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (ii) Workers' Compensation and Employers Liability Coveraqe. The insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees and volunteers for losses arising from work performed by the DEVELOPER for the CITY. (iii) All Coveraqes. 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. (a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:Vll. (b) Verification of Coveraqe. 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. (c) Subcontractors. DEVELOPER and/or DEVELOPER's general contractor shall include all subcontractors as insureds IMPROVEMENT AGREEMENT Page 4 o£ 10 K:~PROJECTS\DUBL1N~Tassajara IIiKBRIDGES\Improvement Agreement_South Bridge. DOC April 1, 2004 under its policies or shall obtain separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. Section 5. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guarantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to the work, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one-year guarantee period without expense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and agrees that when defects in design, workmanship and materials actually appear during the one- year guarantee period, and have been corrected, the guarantee period shall automatically be extended for the corrected items for an additional year to insure that such defects have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days time or such longer time period as agreed to in writing by the City Engineer, after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results in a condition which constitutes an immediate hazard to the public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of CITY. If CITY, at its sole option, makes or causes to be made the necessary repairs or replacements or performs the necessary work, DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work, twenty-five percent (25%) of such costs and expenses for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30) days from the date of billing for such work or repairs. Section 6. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its City Engineer and his designated representative for the safe and convenient inspection of the work throughout its construction. Said CITY representative shall have the authority to reject all materials and workmanship which are not in accordance with the plans and specifications, and all such materials and or work shall be removed promptly by OWNER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the Improvements plans and IMPROVEMENT AGREEMENT Page 5 of 10 K:~PROJECTS~DUBLIN\Tassajara IIBBRIDGES\Improvement Agreement_South Bridge. DOC April 1, 2004 specifications. Section 7. A.qreement Assiqnment. DEVELOPER shall not assign this Agreement without the written consent of CITY, which consent shall not be unreasonably withheld. Section 8. Abandonment of Work. Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be considered to. be agents of CITY in connection with the performance of DEVELOPER's obligations under this Agreement. If DEVELOPER refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extension thereof, or fails to obtain completion of said work within such time, or if DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER, or any of DEVELOPER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its City Engineer may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of DEVELOPER. 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 belbnging to DEVELOPER as may b.e on the site of the work and necessary therefor. Section 9. Notices All notices herein required shall be in writing, and delivered in person or.sent by registered mail, postage prepaid. Notices required to be given to CITY shall be addressed as follows: Melissa Morton Public Works Director City of Dublin 100 Civic Plaza Dublin, CA 94568 IMPROVEMENT AGREEMENT Page 6 of t 0 ' KSPROJECTS\DUBLINXTassajara IIIkBRIDGES\Improvement Agreement_South Br/dge. DOC April 1, 2004 Notices required to be given to DEVELOPER shall be' addressed as follows: GHC Roxbury, LLC c/o Greenbriar Homes Communities, Inc. Patrick Costanzo, Executive Vice President 43160 Osgood Road Fremont, CA 94539 Notices required to be given surety of DEVELOPER shall be addressed as follows: Company Name: Developers Surety and Indemnity Company Attention: Richard S. Svec Street Address: 17780 Fitch, Suite 200 City: Irvine , State: CA , Zip Code: 92614 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. Concurrently with the execution of this Agreement, DEVELOPER has executed and has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CITY may record said abstract in the Official Records of Alameda County. Section 10. Use of Streets or Improvements. At all times prior to the final acceptance of the work by CITY, the use of any or all streets and improvements within the work to be performed under this Agreement shall be at the sole and exclusive risk of DEVELOPER. The issuance of any building or occupancy permit by CITY for dwellings located within the project site shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all such improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially and/or.detrimentally affect public health and safety. Section 11. Safety Devices. DEVELOPER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the site of The Improvements.as may be necessarY to prevent accidents to the publiC and damage to the property. DEVELOPER shall furnish, place, and maintain such lights as may be necessary for illuminating the said fences, barriers, signs, and other safety devices. At the end of 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 IMPROVEMENT AGREEMENT Page 7 of 10 KSPROJECTS~DUBLIN~Tassajara lI1%BRIDGESklmprovement Agreement_South Bridge. DOC April I, 2004 the items of work) shall be removed from site of the workby the DEVELOPER, and the entire site left clean and orderly. Section 12. Acceptance of Work and Right-of-Way. Upon notice of the completion of The Improvements'and the delivery of a set of final as- built mylar plans with electronic file to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine the work without delay, and, if found to be in accordance with said plans and specifications and this Agreement, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify DEVELOPER or his designated agents of such acceptance subject to Section 5 above. If not previously dedicated on the final map for Tract 7414, DEVELOPER shall dedicate to CITY by separate instrument any right of way and easements deemed necessary by the City Engineer for the acceptance and maintenance of The ImprOvements, and, at acceptance of the Work, CITY shall accept said right-of-way and maintenance easement dedications. Section 13. Patent and Copyright Costs. In the event that said plans and specifications require the use of any material, process or publiCation which is subject to a duly registered patent or copyright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. Section 14. Alterations in Plans and Specifications. Any alteration or alterations made in the plans and specifications which are a part of this Agreement or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. Section 15. Liability. a. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the design and construction of The Improvements will be performed in a proper manner. DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers agents and employees, from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action of every kind, nature and description, directly or indirectly arising from an act or omission of DEVELOPER, its employees, agents, or independent contractors in connection with DEVELOPER'S actions and obligations hereunder; provided as follows: (i) That CITY does not, and shall not, waive any rights against DEVELOPER which it may have by reason of the aforesaid hold IMPROVEMENT AGREEMENT Page 8 of 10 K:~PROJECTSkDUBLINWassajara IIP,BRIDGES~Improvement Agreement_South Bridge. DOC April 1,2004 harmless agreement, because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any of the insurance policies described in Paragraph 3 hereof. (ii) That the aforesaid hold 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. b. Design Defect. If, in the opinion of the CITY, a design defect in the work of Improvements becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of the Improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, OWNER 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. Liti.qation 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 3. Section 16. Indemnification and Waiver. DEVELOPER shall defend CITY, its officers, employees and officials, against any claims or actions (including declaratory or injunctive relief) concerning DEVELOPER's construction of The Improvements on DEVELOPER's property and shall indemnify and hold CITY harmless from any damages, charges, fees or penalties that may be awarded or imposed against CITY and/or DEVELOPER in connection with, or on account of, DEVELOPER's construction of The Improvements and/or CITY's failure to enforce or comply with any applicable laws. Section 17. Recitals. The foregoing Recitals are true and correct and are made a part hereof. IN WITNESS WHEREOF, the parties hereto have executed this'Agreement in duplicate at Dublin, California, the day and year first above written. IMPROVEMENT AGREEMENT Page 9 of 10 KSPROJECTS~DUBLINXTassajara IIILBRIDGESklmprovement Agreement_South Bridge. DOC April 1, 2004 CITY OF DUBLIN: DEVELOPER: GHC Roxbury, 'LLC A Delaware Limited Liability Company By: Janet Lockhart, Mayor By: Greenbriar Homes Communities, Inc. A California Corporation, Its Manager Date: ~)~ By: ATTEST: Patrick Costanzo, Jr. Typed or Printed Name By: Kay Keck, City Clerk Executive Vice President Date: Title Date IMPROVEMENT AGREEMENT Page 10 of 10 K:XPROJECTSX~DUBLIN~Tassajara IIBBRIDGESXlmprovement Agreement_South Bridge. DOC April 1, 2004 CALIFORNIA ALL'PURPOSE ACKNOWLEDGMENT. . State of ·California c (e.g., "Jdn6 Doe, Notary Public") Name¢) of Signerts) ~/~..~ersonally known to me '[o be the person(.e')-'-whose namef~i~ subscribed to the within instrument and acknowledged to me that he/~4q4~ executed  the same in his/~ 'authorized capacity(ie~, and that .by his/hcdchoir signature(,s-~on the instrument the personf, s), Or ~ ' Al~r~CountY the entity upon behalf of which the personJ, s~' ~ acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above X ~' -// ~Si~natu~re of Notary Public OPTIONAL. Though the information below is not required by law, it may prove valuable to persons relying On the document and could'prevent fraudulent removal .and reattachment of this form to another document. DesCription of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer, Signer's Name: · ,r-1 Individual Top of thumb here [] Corporate Officer -- Title(s): [] Partner--[] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: © 1999 National Notar7 Association * 9350 De Soto Ave., P.O. Box 2402 · Chatsworth, CA 91313-2402 · www. nmienainotary, org Prod. NO. 5907Reorder. Call Toll-Free 1-800-876-6827 PRELIMINARY ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TASSAJARA CREEK - SOUTH BRIDGE DUBLIN, CALIFORNIA January 22, 2004_ Job No. 961121W SUMMARY I BRIDGE STRUCTURE (PER BIGGS CAR-DOSA, SEE ATTACHED) $564,000 A. GRADING/SITE WORK -- $10,570 B. ASPHALT PAVING $9,800 C. CONCRETE $8,360 D. WATER LINE $8,500 E. RECYCLED WATER $8,280 F. MISCELLANEOUS $15,750 SUBTOTAL = $625,260 15% CONSTRUCTION CONTINGENCY = $93,790 GRAND TOTAL = $719,100 1. All cost figures are given as estimates only. Actual cost.wilt be dependent on the cost figures at bidding time; the general market situation, contractor's work load, seasonal factor, labor and material cost, etc. This engineering ficm cannot be responsible for fluctuations in cost factors. 2.. TI'ils cost estimate is based on South Bridge Improvements, dated January 21, 2004 3. This estimate does not include Engineering fees and Public Agencies' fees. 4. Bridge structure estimate provided by Biggs Card'sa lump sum estimate, dated. January 21,2004 (see a~tached) 5. This estimate does not include joint trench g:\admin\jobs-96\961121\COstEstimate\South-Bridge-C6st-Est.xls .Page of 2 t~reparedby~.Mira~ PRELIMINARY ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TASSAJARA CREEK o SOUTH BRIDGE DUBLIN, CALIFORNIA January 22, 2004 Job No. 961121W ITEM DESCRIPTION QUANTITY UNIT PRICE AMOUNT A. GRADING/SITE WORK 1. Clear & Grub I LS $5,000.00 $5,000 2. Rough Grading 1.020 CY $3.50 . $3,570 3. Erosion Control 1 LS $2,000.00 $2,000 SUBTOTAL $10,570 B. ASPHALT PAVING 1 Fine Grading (PL to PL) 3,780 SF $0.30' $1,130 2. 4"AB Shoulder of Trail 135 SF $1.00 $140 3. AC Pavement- (3"/14") 1,950 SF $3.00 $5,850 4. AC Trail- (3"/6") 315 SF $2.80 $880 5. Grind &AC Overlay .720 SF $2.50 $1,800 SUBTOTAL $9,800 C. CONCRETE 1 Sidewalk 550 SF $4.50 $2.480 2. Handicap Ramp 2 EA $1,500.00 $3,000 3. 6" Curb & Gutter 240 SF $12.00 $2,880 SUBTOTAL $8,360 D. WATER LINE 1 8" PVC (including fltting~ &vaives) t70 LF $40.00 $6,800 2. Blow-off I EA $1,200.00 $1,200 3. Marker for 3" Pdvate Water 2 EA $250.00 $500 S U BTOTAL ' $8,500 E. RECYCLED WATER 1. B" PVC (including fittings & valves) 177 LF $40.00 $7,080 2. End Line Blow-off 1 EA $1,200.00 $1,200 SUBTOTAL $8,280 F, MISCELLANEOUS 1. Signing & Striping 1 LS $1,000.00 $1,000 2. Traffic Sign 1 EA $350.00 $350 3. Street Barricades 2 EA $700.00 $1,400 4. C350 Matting 2,600 SF $5.00 $13,000 SUBTOTAL $15,750 g:\admln\jobs-96\96! 121\Cost Estlmat¢\Soulh-Bridg¢-Cost-Es~.xlz Page 2 of 2 PreRaredl~P. Miro~ ~TI~IUO-I-!_~AL ~-NE~IN~I~I~S do~E, CA 9~126-fl~52 2001251 Greenbfi~ Homes Co~fies 43160 Osgood Road . Fremont, CA 94539 Attention: Thn Qui~ Subject: Tassaj~a Creek Bridges S~cmre Consmcfion Cost Estimate Dear Tim: Biggs Cardosa Associates, Inc. has prepared the following construction cost estimate based on the final drawing submittal: North Bridge: $876,000 South 'Bridge: $564,000 A breakdown of the costs for each item of work is attached. Should .you have any questions in this regard, please do not hesitate to cai1. Sincerely, B1GGS CARDOSA ~ AS S O.(~/LkTES,JN'C. Principal STATE OF CAL]FORNIA.- DIEPARTNILmN~ OF TRANSPO]%TATION MARGINAL ESTIMATE - SEISMIC RETROFIT DS-D-0016 (P. EV 5/93) - (BCA REV l 1195) ESTNA~Na ~aOU~ BRIDGE DIST: -Ico: /RTE: IP-M: ou~ LENGTH x WIDTH = AREA .0 FF~ DESIGN SECTION QUANTmES BY DATE 'ESTIMATE NO PROJECT INCLUDES STRUCTURE(S) QUANTITIES ~HECKED BY DATE PRICED BY AND $ ROADWORK CHARGE UNIT AND EA COST INDEX CODE I '" CONTRACT ITEMS UNIT QUANTITY CHECK USE PRICE AMOUNT STRU~CrUR.EEXCAVATION- BRIDGE ~ ' 208 208 $0 $10,400 ;TRUCTUI~ BACKFILL - BRIDGE ' CY 145 14{5 38 $§,510 STRUCTURE EXCAVATION - RETAINING WALL CY 110 110 43 $4,730 STRUCTURE BACKFILL - RETAINING WALL CY 166 - t 68 37 $5,142 4" SUPPLY LINE (BRIDGE) LF 123 ' 123 20 $2,480 $" sUPpLY LINE (BRIDGE) LF 277 277 20 $5,540 FURNISH PILING (CLASS 70. C) LF 128~ 1,284 25 $32,100 DRIVE PILE (CLASS 70C) EA 28 .26 1600 ' $41,600 s~TRuC~-~ CONCRETE (OmDE~ DECK~ D~A~m C~ 177 . I !77 600 $~0~,200 SLTI~STRUCTUR.E CONCRETE (ABUT~ WW, RW, APPROAC CY I 262~ 202 550 $144,100 FURNISH PRECAST PRESTRESS. ED CONCR_ET~ GIRDER EA 5 5 ~[3000 ' $65 000 ESRE~,T PRECAST PRESTRESSED C,ONCRETB G/PdDBR EA S 5 · 4000 $20.000 [TJBULAR, t-IANDRAILING LF 273 273 55 $15,015 CONCRET~ BARP-..IER (TYPE :255 · LF ' 136 136 89 $12,104 coNcRETE BAR. RIER (TYPE 26), LF 136 136 91 $12,376 SUBTOTAL $483,277 ROUTING dOBILIZATION (10%) $53,69.7 1. DESIGN SECTION SUBTOTAL STRUCTURE iTEMS $536,974 2. DESIGN A SUPERVISOR CONTINGENCIES (~%) $26,849 3. DESIGN B SUPERVISOR ~RIDGE TOTAL ($1 FTC). #DIV/0] ' $563,823 4. Pb~NNING BRIDGE REMOVAL (cont incl.) $0 WORK BY RAiL~ROAD OR UTILITY FORCES $0 GRAND TOTAL . $563 823 FOR BUDGET PURPOSES - SAY. $564,000 COMMENTS $ou~ S~t ~..a~)na) Es~}mate.xls