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STAFF REPORT C I T Y C L E R K
DUBLIN CITY COUNCIL File # ^~]~0-~0
DATE: September 6, 2011
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJE . Amendment to Improvement Developer Agreement for Schaefer Ranch Park
Improvements
Prepared By: Christopher L. Foss, Assistant City Manager
EXECUTIVE SUMMARY:
The City and Schaefer Ranch Holdings LLC ("the Developer") are parties to the Improvement .
Developer Agreement for Schaefer Ranch Park Improvements ("the AgreemenY'). The
Agreement requires the Developer to complete the park improvements in the Schaefer Ranch
Development prior to the issuance of the 201st building permit. Developer has requested
additional time to complete the improvements, and the proposed amendment to the Agreement
would require the developer to complete the construction of the Schaefer Ranch Park no later
than June 30, 2013.
FINANCIAL IMPACT:
None.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution approving the First Amendment to
the Improvement Developer Agreement for Schaefer Ranch Park Improvements.
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Revie d y:
Assistant City Manager
Page 1 of 2 ITEM NO. •
DESCRIPTION:
On January 16, 2007, Schaefer Ranch Holdings LLC ("the Developer") and the City entered into
an "Improvement Developer Agreement for Schaefer Ranch Park Improvements" (Attachment
1). Among other things, the Agreement set out how the Developer would satisfy the obligations
in its entitlements to complete improvement and dedicate park sites within the Schaefer Ranch
Development. The Agreement provides that rather than improving and dedicating two parks the
Developer would improve and dedicate a single sports and leisure park. The Agreement also
specifies when the Developer would be required to complete the park and the manner in which
the Developer would receive credit against the development's Park Facilities Fee obligations. In
particular, the Agreement provides that the park would be completed prior to the issuance of the
201st building permit.
Developer Request to Extend Time for Completion of Improvements.
Staff has held numerous meetings with the Developer about the construction schedule for the
residential development as well as the park development. In order to simplify the agreement
and allow for a date certain as to the completion of the park, the City and Developer have
agreed that the park development shall begin no later than June 30, 2012 and will be completed
no later than June 30, 2013. In conjunction with its request, Developer has indicated that it will
donate $500,000 to the City for the City to use as an endowment for the maintenance and
operation of the Dublin Heritage Park and Museums.
Staff is supportive of this amendment as it will provide the new park by a defined date (June 30,
2013) and will provide a maintenance and operational endowment for the City's Heritage Park
and Museums: The proposed resolution (Attachment 2) will approve the amendment.
ATTACHMENTS: 1. City of Dublin Improvement Developer Agreement with Schaefer
Ranch Park Improvements, dated January 16, 2Q07
2. Resolution Approving First Amendment to Improvement
Developer Agreement for Schaefer Ranch Park Improvements
[with Amendment attached as Exhibit A]
Page 2 of 2
~~o~DU~~ CITY CLERaC-
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AGENDA STA~EMENT ~
CITY COUNCIL MEETING DATE: January 16, 2007
SUBdECT: Improvement Developer Agreement for Schaefer Ranch Park
Report by: Diane Lowart, Parks c~ Community Services Director
ATTACHMENTS: 1. Resolution Approving Agreement
RECOMMENDATION: ~!~~ll'~ Adopt Resolution approving Agreement
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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.?5 acres and the "Leisure Park was 3.5 acres. Condition 120~of the 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 fmal map.
The Improvement Developer Agreement far the Schaefer Rancfi Park Improvements is shown as an
attachment to the Resolution in Attachment 1. The Agreement was prepared by the City Attorney and
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 Ci#y
Council . on October 3, 2006 (E~ibit A to the Agreement). The Agreement further_ provides that the
Developer will construct the Park Improvemerits and upon completion, dedicate the Park Improvements to
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COPY TO: Schaefer Ranch Holdings, LLC / ~~ ~
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Page 1 of2 Attachment Q
G:\COIJNCIL~lgenda Statements~2007\1-16 Schafer Park Imp Agr.doc
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the City. The developer will receive credit against the Public Facilities Fee as outlined in the gree~ment
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 rioted 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 tlie 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 Agreement proposes that the Park Improvements be completed prior to
issuance of the 201St 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. . ~
PubIic Facilities Fee Credits - Land Dedication
VTM Condition 120 provides that the Developer'shall dedicate 6.75 acres of land for the "Sports Park"
and 3.5 acre.s of land 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 43 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 of 2
RESOLUTION NO. - 07
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROYING AN IMPROVEMENT DEVELOPER AGREEMENT
FOR SCHAEFER RANCH PARK IMPROVEMENTS
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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 Pazk Improvements, labeled "Schaefer Ranch, 10.6 Acre
Park,; Option 2," from which the Developer shall develop plans and specifications, included as E~ibit 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 Ac# 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 of the 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 Califomia limited liability company,
attached hereto and authorize the Mayar to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 16t1i day of January 2007:
AYES:
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NOES:
ABSENT:
ABSTAIN:
ATTEST:
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Mayor
City Clerk
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CITY OF DUBLIN
IMPROVEMENT DEVELOPER AGREEMENT FOR SCHAEFER RANCH PARK
fMPROVEMENTS
This agceement 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 Califiornia, that DEVELOPER, the subdivider of the property known as Schaefier
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
Dubiin 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
wi11 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 )mprovements, labeled "Schaefer.Ranch, 10.6 Acre Park, .
Option 2," from which the DEVELOPER shall devefop 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 Califiornia; the Subdivision Ordinance of the
CITY, and those certain plans and specifications for the Park lmprovements 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 th'ss 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, ~he parties agree as follows:
1. Desiqn 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 defailed plans and specifications, of the park shall be approved by
C1TY, 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 201st building.pe~mit.
Time is of the essence in this Agreement. No bui(ding permits shai( be issued beyond
the 200th building permit unless and untii 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 shail 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 sha11 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
delive .ry 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 lmprovements are ~ound to be in accordance with said
plans and specifications and this Agreement, CITY shall recommend acceptance ofi the
work to the City Counci( 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 requiced 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.n The fand
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 10.6 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 po~tion of the Public
Facilities Fee for "Community Parks, Land" and "Neighborhood Parks, Land" for
development on land subject to the vesting tentative rnap approved by Planning
Commission Reso{ution 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 shali be entitied to a credit for design and construction of the Park
Improvements to be used against payment of the "Community Parks, Improvementsn
` 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 obfigation for "Community Parks, Improvements" and "Neighborhood
Parks, Improvements" fees for the entire Development. The Improvement credits shali
be granted at the time DEVELOPER furnishes the bonds to the CITY required by
Paragraph 5 of this Agreement.
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 depflsit, 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 C1TY
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 surtace water drainage of the Park
Improvements shall not intertere 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
conforrri with the provisions of Chapter 5 of the Subdivision Map Act. '
7. Insurance Required.
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Concurrentiy with the execution hereof, DEVELOPER shall obtain or
cause to be obtained and fifed 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 shal! specifically bind the insurance carrier.
A. Minimum Scope of Insurance. Coverage shall be at least as broad
as:
'() Insurance Services OfFce form number GL 0002 (Ed. 1773)
covering comprehensive General Liabilitv 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 GA 0025.
3) Workers' Compensation insurance as required by the Labor
Code of the State of Califomia and Employers Liability Insurance.
B. Minimum Limits of Insurance. DEVELOPER shall maintain limits
no less than:. ~
1) General Liabilitv: $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 gerieral aggregate limit shall apply separately to this project/location or the general
aggregate limit shaH be twice the required occurrence limit.
2) Automobile Liabilitv: -$1,000,000 combined single limit per
accident for bodily injury and property damage.
3) Workers' Compensation and Emplovers Liabilitv: Workers'
compensation fimits as required by the Labor Cade 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 deductibies 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 Automobiie Liabilitv Coveraqes.
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 voiunteers. ~
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 shaN 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 Emplovers Liabilitv Coveraqe.
The insurer shal! 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) A!I Coveraqes.
Each insurance policy required by this clause shafl be endorsed to state
~ that co~erage 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_#o 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 A:VIL ~
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 Pertormance 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 DEVEL~PER 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 ClTY. All
manufactured products specified for the site sha11 have extended warranties as
available from the companies that supply the products. Al! such warranties shall be
transferred to the CITY prior to final acceptance of the Park Improvements. These
warrarities 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 ail or any other work or
materials which may be displaced or damaged in so doing, that may prove defective in
workmanship or material within saitl 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 ths ~:.
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 fai! to comply with the condi#ions 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 r.esults 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 soie discretion and judgment of CITY.
If CITY, at its sole option, makes or causes to be made the necessary
repairs or replacements or pertorms 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 ali 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 wiil 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. Aqreement Assiqnment.
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 DE~ELOPER nor any of~DEVELOPER's agents or contractors are
or shall be considered to be agents of CITY in connection with the performance of
DEVELOP.ER'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 contracto~s, subcontractors,
agents or employees should violate any of the provisions of this Agreement, the CITY
through its authorized representative may serve writt~n 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 thiriy (30) days after notice to CITY of such election, CIT1'
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 DEVELOPER shall be addressed as follows: .
Schaefer Ranch Holdings, LLC
4061 Port Chicago Hwy., 5uite 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
~.~ ~ ~~
Final 12/18/06
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 exciusive 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 ar 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 safeiy. Any and all damages resulting from
the prosecution of work shall be repaired by DEVELOPER at its expense.
13. Safetv Devices.
DEVELOPER shall provide and maintain such guards, watchmen, fences,
barriers, regulatory signs, waming 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. a11 work to be performed under this Agresment, all fences, barriers,
regulatory signs, warning lights, and other sa#ety devices (exce{~t 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 Copvriqht 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 fhe
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 tiereby given, and the
sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of
the State of Cafifornia. DEVELOPER will increase the,dollar amount of bonds it has
. .. . . . . '. . ~ . . ' . . ' ' . _'.~. . c ~ ~,
Fina! 12/18/06 ~7 o?a
, ~
securing the Park Improvements to reflect any aiteration that results in an increase in
the cost of the Park Improvements.
16. Liabili .
A. . DEVELOPER Primarifv 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 C1TY, and
each of its elective and appointive boards, commissions, officers agents and
employees, from and against any and all 1oss, cfaims, 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 C1TY does not, and shall not, waive any rights against
DEVELOPER which it may have by reason of the aforesaid hold harmtess 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 shal( have been determined to be applicable to any of
such damages or claims for damages.
B. Desiqn Defect. 1f, in the opinion of the CITY, a design defect in the
wark 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 lmprovements, 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
manufac#ured products where extended warranties apply, DEVELOPER shall transfer
all such warranties to the CITY prior to the CITY's final acceptance of the Park
Impravements.
C. Liti~ation 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
Finai 12/18/06 f r~ ~
~
its attorneys' fees and court costs. If CITY is the prevailing party, CITY shail 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 liabi[ity company
By: Its managing member,
SCHAEFER RANCH DEVELOPMENT, INC.;
a California corporation
Dated: ~Z "/ ~ - O ~ gy.
Albert D. Seeno, Ill
~ President
EHS:rkb
880950_1;114.064
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RESOLUTION NO. 11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***************~*********~~***~**************
APPROViNG THE FIRST AMENDMENT TO IMPROVEMENT DEVELOPER AGREEMENT
FOR SCHAEFER RANCH PARK IMPROVEMENTS
WHEREAS, City and Developer are parties to that certain "Improvement Developer
Agreement for Schaefer Ranch Park Improvements," dated January 16, 2007 ("the
Agreement").
WHEREAS, the Agreement requires Developer to complete certain Park Improvements
as defined in the Agreement prior to the issuance of the 201st building permit in the Schaefer
Ranch Project and prevents City from issuing building permits beyond the 201st buifding permit
until Developer has completed the Park Improvements and it has accepted them.
WHEREAS, Developer has requested that it be given additional time to commence and
complete the construction of the Park Improvements, and has also, in conjunction with the
request, offered to donate $500,000 for the City to use as an endowment for the maintenance
and operation of the Dublin Heritage Park and Museums.
WHEREAS, the City is willing to grant the request because the amendment provides a
definitive completion date for the Schaefer Ranch Park.
NOW, THEREFORE, BE IT RESOLVED THAT THE City Council hereby approves the
First Amendment to the Improvement Developer Agreement for Schaefer Ranch Park
Improvements and authorizes the City Manager to execute the amendment.
PASSED, APPROVED AND ADOPTED this 6th day of September 2011.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Attachment ~-
~ ~~a
FIRST AMENDMENT TO IMPROVEMENT DEVELOPER AGREEMENT FOR
SCHAEFER RANCH PARK IMPROVEMENTS
This First Amendment is made and entered into this 6th day of September
2011, 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
1. CITY and DEVELOPER are parties to that certain "Improvement
Developer Agreement for Schaefer Ranch Park Improvements," dated January 16,
2007 ("the Agreement").
2. The Agreement requires DEVELOPER to complete certain Park
Improvements as defined in the Agreement prior to the issuance of the 201 st
building permit in the Schaefer Ranch Project and prevents CITY from issuing
building permits beyond the 201 st building permit until DEVELOPER has completed
the Park Improvements and it has accepted them.
3. DEVELOPER has requested that it be given additional time to
commence and complete the construction of the Park Improvements, and CITY is
willing to grant the request.
AMENDMENT
NOW, THEREFORE, in consideration of the mutual promises, conditions, and
covenants.herein contained, the parties agree as follows:
Section 1. Section 1 of the Agreement is amended to read as follows:
"1. Desiqn Plans.
DEVELOPER shall submit plans and specifications (construction
documents) for the Park Improvements to the CITY for design review by
and shall obtain CITY approval of the final plans and specifications for
the Park Improvements no later than April 15, 2012. CITY shall have 30
calendar days to respond to DEVELOPER's initial submittal, which shall
be no later than November 15, 2011, 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
-1-
ar ~ a~
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."
Section 2. Section 2 of the Agreement is amended to read as follows:
"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 commence
construction of the Park Improvements prior to June 30, 2012 and will
complete construction of the Park Improvements prior to June 30, 2013.
Time is of the essence in this Agreement.
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
Section 3. Concurrently with the execution of this Amendment, DEVELOPER
shall furnish the CITY with replacement security meeting the requirements of section
6 of the Agreement. Upon receipt of the.replacement security, CITY will return the
security previously provided under section 6 of the Agreement.
Section 4. All other provisions of the Agreement shall remain in effect.
-2-
a~ . a2
~
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date and year first above written. .
CITY OF DUBLIN
By:
Attest:
Joni Pattillo, City Manager
SCHAEFER RANCH HOLDINGS, LLC
a California limited liability company
By: Schaefer Ranch Development, Inc., ~
a California corporation
Its managing member
By:
Albert D. Seeno, III
President
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
1679981.2
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