HomeMy WebLinkAboutItem 8.1 Schaefer Ranch Park Improv DA
CITY CLERK
File # D~~[Q]-~OJ
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: January 16,2007
SUBJECT:
Improvement Developer Agreement for Schaefer Ranch Park
Report by: Diane Lowart, Parks & Community Services Director
ATTACHMENTS:
1. Resolution Approving Agreement
RECOMMENDATION: ~ Adopt Resolution approving Agreement
\
FINANCIAL STATEMENT: None
DESCRIPTION: The Schaefer Ranch development Vesting Tentative Map (VTM)
approved by the City in 1998 included two neighborhood parks for a combined total of 10.25 acres. The
"Sports Park" was 6.75 acres and the "Leisure Park was 3.5 acres. Condition 120 ofthe VTM requires the
developer to dedicate 10.25 acres of park land to the City and that the developer is required to design and
construct the park in accordance with the neighborhood park standards as contained in the City's Parks
and Recreation Master Plan. The final design of the park shall be approved by the City. The Condition
also discusses timing for dedication and construction of the parks (the "Sports Park" shall be completed
within one year of the issuance of the first building permit for Phase I of the project and the "Leisure
Park" shall be completed within one year of the issuance of the first building permit for the Phase that is
in closest proximity to the park.)
The proposed Lot Reconfiguration Concept that was approved by the City Council in December 2004
combines the park acreage into one park site. Because there are no longer two parks, the timing outlined
in Condition 120 of the VTM is no longer applicable. In order to change the Condition, it is necessary to
enter into an Improvement Agreement with the Developer prior to approval of the final map.
The Improvement Developer Agreement for the Schaefer Ranch Park Improvements is shown as an
attachment to the Resolution in Attachment 1. The Agreement was prepared by the City Attomeyand
approved by the Developer. The Agreement provides that the Developer will develop plans and
specifications for the Park Improvements based on the conceptual design that was approved by the City
Council on October 3, 2006 (Exhibit A to the Agreement). The Agreement further provides that the
Developer will construct the Park Improvements and upon completion, dedicate the Park Improvements to
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COPY TO: Schaefer Ranch Holdings, LLC
ITEM NO.
B.1.
Page 10f2
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the City. The developer will receive credit against the Public Facilities Fee as outlined in the Agreement
for dedication and construction of the park.
The Improvement Developer Agreement differs from Condition 120 of the Vesting Tentative Map in
several ways which are outlined below.
Completion Time
As noted previously, VTM Condition 120 stipulates that the "Sports Park" shall be completed within one
year of the issuance of the first building permit for Phase I of the proj ect and the "Leisure Park" shall be
completed within one year of the issuance of the first building permit for the Phase that is in closest
proximity to the park. The Agreement proposes that the Park Improvements be completed prior to
issuance of the 2015t building permit. Based on 302 units, approximately 2/3 of the units will be
constructed and there will be sufficient occupancy to support the Park.
Public Facilities Fee Credits - Land Dedication
VTM Condition 120 provides that the Developer shall dedicate 6.75 acres ofland for the "Sports Park"
and 3.5 acres ofland for the "Leisure Park" and that the dedication of 7.59 acres of the total 10.25 acres
shall satisfy the Developer's obligation under Dublin Municipal Code Chapter 9.28 (CITY's "Quimby Act
Ordinance") for community park land and neighborhood park land for the Project and shall be a credit
against the portion of the Public Facilities Fee for the Project for "Community Parks, Land" and
"Neighborhood Parks, Land." Further the Developer will not receive any credit for the remaining 2.66
acres to be dedicated.
The proposed park contemplated under the Agreement is now 10.6 acres (of which 6.3 acres represent
usable park land). Due to the reduction in the number of units, the developer's park dedication obligation
is 4.83 acres. Consequently the Agreement provides that the dedication of 4.83 acres of the total 10.60
acres shall satisfy the Developer's obligation under Dublin Municipal Code Chapter 9.28 (CITY's
"Quimby Act Ordinance") for community park land and neighborhood park land for the Project and shall
be a credit against the portion of the Public Facilities Fee for the Project for "Community Parks, Land"
and "Neighborhood Parks, Land." It is also proposed that the Developer receive credit for an additional
1.47 acres (which is the difference between the Developer's obligation of 4.83 acres and the 6.3 acres of
usable park land). This credit would need to be used within 10 years from the date of the final map and
only for development on land subject to the vesting tentative map approved by Planning Commission
Resolution No. 98-38. The Developer will not receive any credit for the remaining 4.3 acres to be
dedicated.
RECOMMENDATION: It is recommended that the City Council adopt the Resolution in
Attachment 1 approving the Improvement Developer Agreement for Schaefer Ranch Park Improvements
with Schaefer Ranch Holdings LLC.
Page 2 of2
RESOLUTION NO. - 07
IOO'tp
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING AN IMPROVEMENT DEVELOPER AGREEMENT
FOR SCHAEFER RANCH PARK IMPROVEMENTS
WHEREAS, it has been determined by the City Council of the City of Dublin, State of California,
that the Developer, the subdivider of the property known as Schaefer Ranch desires to improve and
dedicate those public improvements as shown on the vested tentative map for the Schaefer Ranch Project
approved by the Dublin Planning Commission Resolution No. 98-38; and
WHEREAS, Condition No. 120 of Resolution No. 98-38 requires that the Developer build two
parks, a sports park and a leisure park, and dedicate them the to City; and
WHEREAS, the Developer has proposed that the sports park and leisure park called for in
Condition No. 120 of Resolution No. 98-38 be combined into one park that will include both activities;
and
WHEREAS, the Developer will construct the park and will dedicate the Park Improvements to the
City based on the conceptual design plan for the Park Improvements, labeled "Schaefer Ranch, 10.6 Acre
Park, Option 2," from which the Developer shall develop plans and specifications, included as Exhibit A
to the attached Agreement; and
WHEREAS, the Agreement will be deemed to meet the requirements of Condition No. 120 of
Resolution No. 98-38 and is entered into in accordance with other requirements and conditions set forth in
said Resolution No. 98-38, the requirements of the Subdivision Map Act of the State of California, the
Subdivision Ordinance of the City, and those certain plans and specifications for the Park Improvements
which shall be created by Developer according to the terms outlined herein; and
WHEREAS, Developer intends to satisfactorily complete the Park Improvements within the time
specified, and City intends to accept Developer 's offer(s) of dedication ofthe Park Improvements in
consideration for Developer 's satisfactory performance of the terms and conditions of this Agreement;
and
WHEREAS, City has determined that the Park Improvements are a public works project subject
to California prevailing wage requirements.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the agreement with Schaefer Ranch Holdings LLC, a California limited liability company,
attached hereto and authorize the Mayor to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 16th day of January 2007.
AYES:
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ATTACHMENT 1
"S. \ \ -\\.0-01
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
20bllo
Mayor
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CITY OF DUBLIN
IMPROVEMENT DEVELOPER AGREEMENT FOR SCHAEFER RANCH PARK
IMPROVEMENTS
This agreement is made and entered into this _ day of , 2006,
by and between the City of Dublin, a municipal corporation, hereinafter referred to as
"CITY", and Schaefer Ranch Holdings LLC, a California 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, the subdivider of the property known as Schaefer
Ranch (the "Development") desires to improve and dedicate those public improvements
as shown on the vested tentative map for the Schaefer Ranch Project approved by
Dublin Planning Commission Resolution No. 98-38.
WHEREAS, Condition No. 120 of Resolution No. 98-38 requires that
DEVELOPER build two parks, a sports park and a leisure park, and dedicate them to
the CITY;
WHEREAS, DEVELOPER has proposed that the sports park and leisure park
called for in Condition No. 120 of Resolution No. 98-38 be combined into one park that
will include both activities;
WHEREAS, DEVELOPER will construct the park (hereinafter the "Park
Improvements") and will dedicate the Park Improvements to the CITY. The conceptual
design plans for the Park Improvements, labeled "Schaefer Ranch, 10.6 Acre Park,
Option 2," from which the DEVELOPER shall develop plans and specifications, are
attached to this Agreement as Exhibit "A."
WHEREAS, this Agreement will be deemed to meet the requirements of
Condition No. 120 of Resolution No. 98-38 and is entered into in accordance with other
requirements and conditions set forth in said Resolution No. 98-38, the requirements of
the Subdivision Map Act of the State of California, the Subdivision Ordinance of the
CITY, and those certain plans and specifications for the Park Improvements which shall
be created by DEVELOPER according to the terms outlined herein;
WHEREAS, DEVELOPER intends to satisfactorily complete the Park
Improvements within the time hereinafter specified, and CITY intends to accept
DEVELOPER's offer(s) of dedication of the Park Improvements in consideration for
DEVELOPER's satisfactory performance of the terms and conditions of this Agreement;
and
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WHEREAS, CITY has determined that the Park Improvements are a public
works project subject to California prevailing wage requirements:
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants herein contained, the parties agree as follows:
1. Desian Plans.
DEVELOPER shall submit plans and specifications (construction
documents) for the Park Improvements to the CITY for design review within 180 days of
the execution of this Agreement and shall obtain CITY approval of the final plans and
specifications for the Park Improvements no later than 360 days from execution of this
Agreement. CITY shall have 30 calendar days to respond to DEVELOPER's initial
submittal and any subsequent submittals of revised plans and specifications.
DEVELOPER shall design the Park Improvements in accordance with the CITY's Parks
and Recreation Master Plan and CITY's Park Development Standards. The final
design, including detailed plans and specifications, of the park shall be approved by
CITY, which may require peer review of the design at DEVELOPER's cost.
DEVELOPER shall obtain all required permits and pay all required fees including utility
connection fees and inspection fees. Construction of the Park Improvements shall not
begin until the final plans and specifications are approved by the CITY.
2. Completion Time.
Notwithstanding the timing for construction outlined in Condition No. 120
in Resolution No. 98-38, the parties hereby agree to the timeline for Park Improvement
construction and completion set by this Paragraph 2 of this Agreement. DEVELOPER
will complete the Park Improvements prior to the issuance of the 201 st building permit.
Time is of the essence in this Agreement. No building permits shall be issued beyond
the 200th building permit unless and until the Park Improvements are completed and
accepted by the CITY.
Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set
of final as-built plans and AutoCad copies of the construction documents for the Park
Improvements, including any CITY authorized modifications.
In the event that DEVELOPER is unable to complete the Park Improvements prior to the
time specified herein, the CITY shall take all actions necessary to collect on furnished
bonds and/or at the CITY's option, the CITY shall complete the work and the
DEVELOPER shall be subject to the costs and expenses named in Paragraph 8.
3. Acceptance of Work.
Upon notice of the completion of all Park Improvement work and the
delivery of a set of final as-built plans and AutoCad copies of the construction
documents to CITY by DEVELOPER, the CITY shall examine the Park Improvement
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work without delay. If the Park Improvements are found to be in accordance with said
plans and specifications and this Agreement, CITY shall recommend acceptance of the
work to the City Council and, upon such acceptance, shall notify DEVELOPER or its
designated agents of such acceptance. The CITY will only accept the improvements at
100% completion.
The CITY shall have no obligation to accept the Park Improvements prior to a minimum
of 75 homes in the Development being authorized for occupancy nor prior to the
completion of the required maintenance period for planted materials in accordance with
the final approved plans and specifications.
All utility and other operating costs shall be the responsibility of DEVELOPER until
acceptance of the Park Improvements by CITY.
4. Public Facilities Fee and Credits.
Notwithstanding the terms of Condition No. 120 of Resolution No. 98-38,
DEVELOPER shall dedicate 10.6 acres of land for the "Park Improvements." The land
to be dedicated and underlying groundwater shall be free of hazardous substances and
DEVELOPER shall present evidence satisfactory to CITY of such condition prior to
acceptance.
The dedication of 4.83 acres of the total 1 0.6 acres by DEVELOPER shall satisfy.
DEVELOPER's obligation under Dublin Municipal Code Chapter 9.28 (CITY's "Quimby
Act Ordinance") for community park land (3.38 acre dedication requirement) and
neighborhood park land (1.45 acre dedication requirement) for 302 residential units and
shall be a credit against the portion of the Public Facilities Fee for 302 residential units
within the Development for "Community Parks, Land" and "Neighborhood Parks, Land"
in proportion to the respective requirements as provided in the City of Dublin Public
Facilities Fee Administrative Guidelines, as may be amended from time to time.
DEVELOPER shall also receive a credit of 1.47 acres which may be used no later than
ten (10) years from the date the final map creating the 302 residential lots is recorded,
provided such credit may only be used as a credit against the portion of the Public
Facilities Fee for "Community Parks, Land" and "Neighborhood Parks, Land" for
development on land subject to the vesting tentative map approved by Planning
Commission Resolution No. 98-38.
DEVELOPER shall not receive any Public Facilities Fee credit for the remaining 4.3
acres to be dedicated.
The land for the Park Improvements shall be offered for dedication to the City on the
final map. Credit for the dedication of 6.3 acres shall be granted at the time the final
map is recorded. .
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DEVELOPER shall be entitled to a credit for design and construction of the Park
Improvements to be used against payment of the "Community Parks, Improvements"
and "Neighborhood Parks, Improvements" portions of the Public Facilities Fee for the
Development respectively. The amount of the credit shall be equal to the
Development's obligation for "Community Parks, Improvements" and "Neighborhood
Parks, Improvements" fees for the entire Development. The Improvement credits shall
be granted at the time DEVELOPER furnishes the bonds to the CITY required by
Paragraph 5 of this Agre~ment.
5. Estimated Cost of Improvements.
The estimated cost of constructing the Park Improvements required by this
agreement as adjusted for inflation is agreed to be for a fixed limit in the amount of
$4,371,055.00. Said amount includes a contingency of 30% of estimated costs that
includes potential unanticipated design and construction costs and, reasonable costs,
expenses and fees which may be incurred in enforcing the obligation secured.
6. Bonds Furnished.
Concurrently with the execution of this Agreement, DEVELOPER shall
furnish CITY with the following security in a form satisfactory to the CITY Attorney:
a. Faithful Performance. Either a cash deposit, a corporate surety
bond issued by a company duly and legally licensed to conduct a general surety
business in the State of California, or an instrument of credit equivalent to one hundred
percent (100%) of the estimate set forth in Paragraph 5 and sufficient to assure CITY
that the Park 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 estimate set forth in Paragraph 5 and sufficient to assure CITY
that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor,
materials, or equipment shall be paid therefore.
c. If required by CITY, a cash deposit, corporate surety bond, or
instrument of credit sufficient to assure CITY that the surface water drainage of the Park
Improvements shall not interfere with the use of neighboring property, including public
streets and highways.
CITY shall be the sole indemnitee named on any instrument required by this
Agreement. Any instrument or deposit required herein and the release thereof shall
conform with the provisions of Chapter 5 of the Subdivision Map Act.
7. Insurance Reauired.
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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 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 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
requirements herein provided shall appear either in the body of the insurance policies or
as endorsements and shall specifically bind the insurance carrier.
A. Minimum Scope of Insurance. Coverage shall be at least as broad
as:
1) 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.)
2) Insurance Services Office form number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3) Workers' Compensation insurance as required by the Labor
Code of the State of California and Employers Liability Insurance.
B.
no less than:
Minimum Limits of Insurance. DEVELOPER shall maintain limits
1) 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.
2) Automobile Liability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
3) 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.
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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:
1) General Liability and Automobile Liability Coveraaes.
a) 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 the DEVELOPER; products and completed
operations of the DEVELOPER; premises owned, occupied or used by the
DEVELOPER; or automobiles owned, leased, hired or borrowed by the DEVELOPER.
The coverage shall contain no special limitations on the scope of the protection afforded
to the CITY, its officers, officials, employees or volunteers.
b) The 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 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.
2) Workers' Compensation and Employers Liability Coveraae.
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.
3) All Coveraaes.
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.
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a) Acceptabilitv of Insurers. Insurance is to be placed
with insurers with a A.M. Bests' rating of no less than AVII.
b) Verification of Coveraae. 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 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.
8. 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 year after final acceptance of the entire work by CITY. All
manufactured products specified for the site shall have extended warranties as
available from the companies that supply the products. All such warranties shall be
transferred to the CITY prior to final acceptance of the Park Improvements. These
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 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
applicable guarantee period, and have been corrected, the guarantee period for such
corrected items shall automatically be extended 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 ten (10) days time, 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
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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 as provided herein,
DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work,
fifty percent (50%) 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.
9. Inspection of the Work.
DEVELOPER shall guarantee free access to CITY through the City
Manager's 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
DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in
strict accordance with the improvement plans and specifications. The City
representative will also attend all project progress meetings during the course of
construction.
DEVELOPER will submit any plan changes before and during construction
to the City Manager's designated representative for approval. Construction will not
begin on any plan changes until they are approved.
10. Aareement Assianment.
This Agreement shall not be assigned by DEVELOPER without the written
consent of CITY which consent shall not be unreasonable withheld.
11. 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
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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 authorized representative 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 Park
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.
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:
Richard Ambrose, City Manager
City of Dublin
100 Civic Plaza
Dublin, California 94568
Notices required to be given to DEV~LOPER shall be addressed as follows: .
Schaefer Ranch Holdings, LLC
4061 Port Chicago Hwy., Suite H
Concord, CA 94520
Attn: Albert D. Seeno, III
With a copy to:
Schaefer Ranch Holdings, LLC
4021 Port Chicago Hwy.
Concord, CA 94520
Attn: Jeanne C. Pavao
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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.
12. Use of Park Improvements.
At all times prior to the final acceptance of the work by CITY, the use of
the Park Improvements shall be at the sole and exclusive risk of DEVELOPER.
Developer shall fence the park and prevent public use thereof until final acceptance of
the park by the City. The issuance of any building or occupancy permit by CITY for
dwellings located within the Development 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 permits or final inspection when the work or its progress may substantially
and/or detrimentally affect public health and safety. Any and all damages resulting from
the prosecution of work shall be repaired by DEVELOPER at its expense.
13. 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 tract site 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 the items of work) shall be removed from
site of the work by the DEVELOPER, and the entire site left clean and orderly.
14. Patent and Copvrioht 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.
15. 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. DEVELOPER will increase the dollar amount of bonds it has
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securing the Park Improvements to reflect any alteration that results in an increase in
the cost of the Park Improvements.
16. Liabilitv.
A. DEVELOPER Primarilv Liable. DEVELOPER hereby warrants that
the design and construction of the Park Improvements will not adversely affect any
portion of adjacent properties and that all work 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:
1) That CITY does not, and shall not, waive any rights against
DEVELOPER which it may have by reason of the aforesaid hold harmless agreement,
because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any
of the insurance policies described in Paragraph 7 hereof.
2) 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. Desian Defect. If, 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 (except for those manufactured products where extended warranties have
been provided, in which case the extended warranty period will apply) following
acceptance by the CITY of the Park 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 its 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. For those
manufactured products where extended warranties apply, DEVELOPER shall transfer
all such warranties to the CITY prior to the CITY's final acceptance of the Park
Improvements.
C. Litiaation 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
, 4-- o'b \ LO
Final 12/18/06
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 paragraph 6.
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.
CITY OF DUBLIN
Dated:
By:
Mayor Janet Lockhart
ATTEST:
Fawn Holman, City Clerk
DEVELOPER
SCHAEFER RANCH HOLDINGS, LLC
a California limited liability company
By: Its managing member,
SCHAEFER RANCH DEVELOPMENT, INC.,
a California corporation
Dated: /z- -I q - I) b
By:
Albert D. Seeno, III
President
EHS:rkb
880950_1 ;114.064
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