HomeMy WebLinkAbout4.5 Commercial Façade Improvement Grant Program Agreements for Dublin Cyclery and Hair EmporiumSTAFF REPORT
CITY COUNCIL
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Agenda Item 4.5
DATE:February 1, 2022
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:Commercial Façade Improvement Grant Program Agreements for Dublin Cyclery and Hair EmporiumPrepared by:Rhonda Franklin, Management Analyst II
EXECUTIVE SUMMARY:The City Council will consider approving Commercial Façade Improvement Grant Program Agreements for two businesses: Dublin Cyclery and Hair Emporium. The businesses have requested participation in the program to assist with improvements to the building’s exterior signage.
STAFF RECOMMENDATION:Adopt the Resolution Approving Commercial Façade Improvement Grant Program AgreementsBetween the City of Dublin, Dublin Plaza, and Dublin Cyclery; and the City of Dublin, Dublin Plaza,and Hair Emporium.
FINANCIAL IMPACT:There is sufficient funding available in the Fiscal Year 2021-22 Budget for these reimbursements.
DESCRIPTION:In December 2011, the City Council adopted the Commercial Façade Improvement Grant Program to improve the physical appearance of the Downtown Dublin Specific Plan (DDSP) area and the segment of Dublin Boulevard between Village Parkway and Dougherty Road (Program Area), encourage the retention of existing businesses, and increase property values, tenant stability, and lease rates in the area. The Program leverages public funds and private investment to enhance the physical appearance and economic vitality of commercial businesses in the Program Area.In June 2016, the City Council adopted changes to the Program to:
expand the allowance of architectural assistance;
encourage timely results;
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prioritize selection of projects which promote downtown activation (such as outside gathering and dining spaces);
promote project competitiveness;
clarify applicant preparedness; and
make the requirements of the Program more understandable to applicants.Under the Program, commercial property owners or tenants with long-term leases (five years or more) within the Program Area can apply for one of two façade improvement grants:
Mini-Grant – provides reimbursement of up to $5,000 for commercial building façade improvements with no match requirement.
Matching Grant – provides a reimbursable matching grant of two-thirds (66%) of eligible project costs, up to a maximum of $70,000. The total cost of the improvement work must be greater than $5,000. Receipt of a matching grant requires the approved applicant to contribute a minimum of one-third of the total cost of the façade improvement costs. In November and December 2021, Staff received applications for Mini-Grants from Dublin Cyclery(7001 Dublin Boulevard) and Hair Emporium (6993 Dublin Boulevard), respectively. Both businesses lease retail space in the Dublin Plaza shopping center where there are other retail, restaurant, and personal services establishments, such as Athens Burger, Box World and CosmoProof. The shopping center recently underwent façade improvements and was approved for a Master Sign Program (MSP). As a result, updated exterior signage was required for all the tenants to conform to the new MSP requirements. Both applicants are requesting Mini-Grants in the amount not to exceed $5,000 to help offset the costs of installing new signage, including, but not limited to fabrication and installation.The applicants have worked with the Community Development Department – Planning Division to ensure the signage meets the approved MSP requirements. The new signage matches the existing façade and provide a clean and uniform look for the shopping center.Economic Development Committee ConsiderationOn December 21, 2021, the City Council’s Economic Development Committee considered the applications and by consensus, recommended City Council approval of both applications. This recommendation falls under the Committee’s purview to provide policy guidance and direction on economic development activities.
STRATEGIC PLAN INITIATIVE:None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:The City Council Agenda was posted, and a copy of this Staff Report was sent to the Applicants.
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ATTACHMENTS:1) Resolution Approving Commercial Façade Improvement Grant Program Agreements Betweenthe City of Dublin, Dublin Plaza and Dublin Cyclery; and the City of Dublin, Dublin Plaza, and Hair Emporium2) Exhibit A to the Resolution – Commercial Façade Improvement Grant Program Agreement Between the City of Dublin, Dublin Plaza, and Dublin Cyclery3) Exhibit B to the Resolution – Commercial Façade Improvement Grant Program Agreement Between the City of Dublin, Dublin Plaza, and Hair Emporium
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Attachment 1
RESOLUTION NO. XX – 22
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING COMMERCIAL FAÇADE IMPROVEMENT GRANT PROGRAM
AGREEMENTS BETWEEN THE CITY OF DUBLIN, DUBLIN PLAZA,
AND DUBLIN CYCLERY; AND THE CITY OF DUBLIN, DUBLIN PLAZA, AND HAIR
EMPORIUM
WHEREAS, for decades, state and local governments have used economic
development incentives to attract or retain jobs and/or improve the local tax base; and
WHEREAS,the City Council of the City of Dublin adopted Resolution No. 216-11 on
December 20, 2011, which established a Commercial Façade Improvement Grant Program
("Program") intended to improve the physical appearance of the Downtown Dublin Specific
Plan area and the segment of Dublin Boulevard between Village Parkway and Dougherty Road,
encouraging the retention of existing businesses, as well as increase property values, tenant
stability, and lease rates for the property; and
WHEREAS,the Program authorizes the City of Dublin to enter into agreements with
commercial property owners, or tenants with long-term leases (five or more years remaining
on the lease at the time a Program application is submitted) to apply for either 1) a mini-grant
for reimbursement of up to $5,000; or 2) a matching grant, that provides a reimbursable
matching grant of two-thirds (66%) of eligible project costs, up to a maximum of $70,000; and
WHEREAS,Dublin Cyclery (applicant) leases from Property Owner certain real property
located at 7001 Dublin Boulevard (APN 941-0210-027-02), located in the Program area within
the City; and
WHEREAS,Hair Emporium (applicant) leases from Property Owner certain real
property located at 6993 Dublin Boulevard (APN 941-0210-027-02), located in the Program
area within the City; and
WHEREAS,the Applicants intend to improve the facades of the buildings on the
properties identified in this Resolution; and
WHEREAS,the City Council finds that the Agreements serve a public purpose in that
they will help improve the physical appearance of Dublin Boulevard in the Program area,
encourage the retention of existing businesses, and increase property values and tenant
stability, thus benefitting the City and its residents.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve Commercial Façade Improvement Grant Program Agreements between the
City of Dublin, Dublin Plaza, and Dublin Cyclery; and the City of Dublin, Dublin Plaza and Hair
Emporium, attached hereto as Exhibits A and B; and
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BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreements, in substantially the form attached, and to make any minor modifications to the
Agreements necessary to carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 1st day of February, 2022, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
____________________________
City Clerk
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b. A representative of the City shall inspect the completed Work after a completion notice has been
submitted to the City.
c. Upon determination by the City's representative that the Work has been completed in conformance
with the Scope of Work (Exhibit 1) and the City approvals, the City shall issue a check within 14
business days, made payable to the Applicant in an amount equal to the lesser of the Maximum
Grant Amount or the actual amount of the invoices submitted to the City by the Applicant.
d. Any and all costs of the Work, which are in excess of the Maximum Grant Amount, shall be the
sole responsibility of, and be borne by, the Applicant.
1.3 Permits and Approvals. Before commencement of the Work, Applicant shall secure or cause to
be secured any and all permits which may be required by the City and any other governmental agency affected by
such construction or work.
1.4 Commencement of the Work. Within 60 days after the Effective Date, Applicant shall have
selected and authorized one or more contractors to perform the Work, and shall have provided notice to the City of
such selection and authorization. In the event the Applicant fails to select and authorize a contractor or contractors to
perform the Work within such 60-day period, the City may, at its option, terminate this Agreement upon written notice
to the Applicant. In such event, neither party shall have any further rights against or liability to the other in connection
to this Agreement. All contractors performing the Work must be licensed in the State of California.
1.5 Building Permit. A Building Permit must be obtained within 6 months of the City Council’s
approval of funding. In the event the Applicant fails to obtain a Building Permit within such 6-month period, the City
may, at its option, terminate this Agreement upon written notice to the Applicant. In such event, neither party shall
have any further rights against or liability to the other in connection to this Agreement. Additional 6 months
extensions may be approved with the City’s prior written consent.
1.6 Completion of the Work. Applicant shall complete the Work and satisfy all other obligations and
conditions of this Agreement within 120 days of building permit issuance. This completion date is subject to revision
from time to time as mutually agreed upon in writing between Applicant and City's Economic Development Director,
or her designee.
1.7 Insurance Requirements. Before beginning any work under this Agreement, Applicant, or its
contractor shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to
property that may arise from or in connection with the performance of the work hereunder by the Applicant or its
contractor and its agents, representatives, employees, and subcontractors. Applicant shall provide proof satisfactory
to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all
respects to the City. Applicant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in the Applicant’s bid. Applicant shall not allow any
contractor or subcontractor to commence work on until Applicant has obtained all insurance required herein for the
contractor or subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be
submitted and made part of this Agreement prior to execution.
It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits shall be available to City as an additional
insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or
proceeds available to the named insured; whichever is greater. The additional insured coverage under the
Applicant’s policy shall be “primary and non-contributory” and will not seek contribution from City’s insurance or self-
insurance and shall be at least as broad as CG 20 01 04 12. In the event Applicant fails to maintain coverage as
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required by this Agreement, City at its sole discretion may purchase the coverage required and the cost will be paid
by Applicant. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance
policy shall include an endorsement providing that it shall not be cancelled, changed, or allowed to lapse without at
least thirty (30) days’ prior written notice to City of such cancellation, change, or lapse. All insurance required by this
section is to be placed with insurers with a Bests' rating of no less than A:VII.
1.7.1 Commercial General and Automobile Liability Insurance.
1.7.1.1 General requirements. Applicant or its contractor, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, combined single limit coverage for risks associated with the work
contemplated by this Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required occurrence
limit. Such coverage shall include but shall not be limited to, protection against claims
arising from bodily and personal injury, including death resulting therefrom, and damage
to property resulting from activities contemplated under this Agreement, including the use
of owned and non-owned automobiles.
1.7.1.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad
as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 Code 1 (“any auto”).
1.7.1.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
additional insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Contractor, including the insured’s general
supervision of Contractor; products and completed operations of Contractor;
premises owned, occupied, or used by Contractor; and automobiles owned,
leased, or used by the Contractor. The coverage shall contain no special
limitations on the scope of protection afforded to City or its officers, employees,
agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to
the City and its officers, officials, employees and volunteers, and that no
insurance or self-insurance maintained by the City shall be called upon to
contribute to a loss under the coverage.
d. Any failure of Contractor to comply with reporting provisions of the policy shall
not affect coverage provided to City and its officers, employees, agents, and
volunteers.
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e. An endorsement shall state that coverage shall not be canceled except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the City. Contractor shall notify City within 14 days of notification
from Contractor’s insurer if such coverage is suspended, voided or reduced in
coverage or in limits.
1.7.1.4 Verification of coverage. Prior to beginning any work under this Agreement, Applicant
shall furnish City with certificates of insurance and with original endorsements effecting
coverage required herein. 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 City reserves the right to require complete, certified copies of all required insurance
policies and endorsements. Failure to exercise this right shall not constitute a waiver of
right to exercise later.
1.7.1.5 Contractors and Subcontractors. Applicant agrees to include with all contractors or
subcontracts the same requirements and provisions of this Agreement including the
Indemnification and Insurance requirements to the extent they apply to the scope of the
Subcontractor’s work. Contractors or subcontractors hired by Applicant agree to be bound
to Applicant and the City in the same manner and to the same extent as Applicant is
bound to the City under the Contract Documents.
1.7.1.6 Variation. The City may approve a variation in the foregoing insurance requirements,
upon a determination that the coverages, scope, limits, and forms of such insurance are
either not commercially available, or that the City’s interests are otherwise fully protected.
1.7.1.7 Deductibles and Self-Insured Retentions. All self-insured retentions (SIR) and/or
deductibles must be disclosed to the City for approval and shall not reduce the limits of
liability. Policies containing any self-insured retention provision and/or deductibles shall
provide or be endorsed to provide that the SIR and/or deductibles may be satisfied by
either the named insured or the City.
1.7.1.8 Excess Insurance. The limits of insurance required in this Agreement may be satisfied
by a combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a
written contract or agreement) before City’s own insurance or self-insurance shall be
called upon to protect City as a named insured.
1.7.1.9 Notice of Reduction in Coverage. In the event that any coverage required by this
section is reduced, limited, or materially affected in any other manner, Applicant shall
provide written notice to City at Applicant’s earliest possible opportunity and in no case
later than five days after Applicant is notified of the change in coverage.
1.7.2 Remedies. In addition to any other remedies City may have if Applicant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required,
City may, at its sole option exercise any of the following remedies, which are alternatives to other
remedies City may have and are not the exclusive remedy for Applicant’s breach:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance
from any sums due under the Agreement;
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Order Applicant to stop work under this Agreement or withhold any payment that becomes due
to Applicant hereunder, or both stop work and withhold any payment, until Applicant
demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
1.8 Prevailing Wages. Applicant shall require any contractors performing the Work to pay prevailing
wages pursuant to the requirements of the California Labor Code, Section 1771, et seq. For the purpose of this
Agreement, prevailing wages are the general prevailing rate of per diem wages and the general prevailing rate for
holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute this
Agreement as ascertained by the Director of the Department of Industrial Relations of the State of California. The
holidays upon which such rates shall be paid shall be all holidays recognized in the collective bargaining agreement
applicable to the particular craft, classification, or type of worker employed on the project.
The Contractors and each subcontractor shall keep an accurate payroll record showing the name, address,
social security number, work classification, straight time and overtime hours worked each day and week and the
actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by the Contractors
or subcontractors in connection with the Work. The payroll records shall be kept in accordance with the provisions of
Section 1776 of the California Labor Code, and Contractor and each subcontractor shall otherwise comply with
requirements of such Section 1776.
1.9 Rights of Access. Representatives of the City shall have the reasonable right to access the Site,
without charges or fees, for the purpose of inspecting the Work. City (or its representatives) shall, except in
emergency situations, give Applicant reasonable advance notice prior to exercising its rights herein. Nothing herein
shall be deemed to limit the ability of the City to conduct code enforcement and other administrative inspections of
the Site in accordance with applicable law.
1.10 Improvements Cannot Be Removed by Owner or Tenant Without City’s Consent. All façade
improvements, including construction of an outdoor dining area, will become permanent fixtures of the property and
cannot be removed by owner or tenant upon expiry or termination of the lease or sale of the property. This includes,
but is not limited to tables, chairs, shade structures, lighting, fencing planter boxes and other landscaping. Exceptions
can be made with the prior written consent of the City.
1.11 Compliance with Laws; Indemnity; Waiver. Applicant shall carry out the work of Improvements
in conformity with all applicable federal, state and local laws, including Labor Code requirements; City zoning and
development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City's
Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Applicant shall defend (with counsel reasonably acceptable to City), indemnify and hold harmless the City
and its officers, employees, volunteers, agents and representatives from and against any and all present and future
liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs of
the counsel or joint-counsel retained by Applicant to defend City) (collectively, "Claims"), arising out of or in any way
connected with Applicant's obligation to comply with all laws with respect to the Work, including all Claims that may
be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and
1781.
Applicant hereby waives, releases and discharges forever the City, and its employees, officers, volunteers,
agents and representatives, from any and all present and future Claims arising out of or in any way connected with
this Agreement, the performance of the Work, or Applicant's obligation to comply with all laws with respect to the
Work.
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1.12 Nondiscrimination during Construction. The Applicant, for itself and its successors and
assigns, agrees that in selecting one or more contractors to perform the Work, the Applicant will not discriminate on
the basis of race, color, creed, religion, sex, age, handicap, marital status, ancestry or national origin.
2. MAINTENANCE COVENANTS. The Applicant covenants and agrees, for itself, its successors, its assigns
and every successor in interest to the Site or any part thereof, that the Applicant will maintain, at Applicant's own cost
and expense, the improvements on the Site in a clean and orderly condition, free of graffiti, and in good condition and
repair, and will keep the Site free from any accumulation of debris and waste materials. Any damage to the building
visible from the street is to be repaired immediately. The Applicant shall promptly touch up painted areas and
perform any other repairs needed to maintain an attractive building appearance, including cleaning all awnings, if
any, at least once a year. The foregoing covenants shall remain in effect for a period of 48 months from the
completion of the Work. During this 48-month period, Applicant agrees, for itself, its successors, its assigns and
every successor in interest, that it will not materially alter the façade, as improved with City funds, without the prior
written consent of City which consent may be conditioned by City to preserve façade features to the extent necessary
to achieve the objectives of City for entering into this Agreement. Any violation of this section not cured within 60
days shall entitle City to reimbursement of the funds granted by City from the person or entity responsible for the
violation.
3. GENERAL PROVISIONS
3.1 Assignment. Applicant shall have the right to assign all of its rights and obligations under this
Agreement, provided however that any such assignment shall be effective only upon receipt by City of written notice
of the assignment.
3.2 Notices, Demands and Communications between the Parties. Any approval, disapproval,
demand, document or other notice ("Notice") which either party may desire to give to the other party under this
Agreement must be in writing and shall be given by certified mail, return receipt requested and postage prepaid,
personal delivery, or reputable overnight courier (but not by facsimile or email), to the party to whom the Notice is
directed at the address of the party as set forth below, or at any other address as that party may later designate by
Notice.
To City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
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To Applicant: Owner
373 Village Square
Orinda, CA 94563
Attention: Fred Delanoy
And
Tenant
7001 Dublin Boulevard
Dublin, CA 94568
Attention: Robert Beaman, III
Any Notice shall be deemed received on the date of delivery if delivered by personal service, on the date of
delivery or refused delivery as shown by the return receipt if sent certified mail, and on the date of delivery or refused
delivery as shown by the records of the overnight courier if sent via nationally recognized overnight courier. Notices
sent by a party's attorney on behalf of such party shall be deemed delivered by such party.
3.3 Relationship between City and Applicant. It is hereby acknowledged that the relationship
between City and Applicant is not that of a partnership or joint venture and that City and Applicant shall not be
deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein
or in the Attachments hereto, City shall have no rights, powers, duties or obligations with respect to the development,
operation, maintenance or management of the Site or the Work. Applicant agrees to indemnify, hold harmless and
defend City from any claim made against City arising from a claimed relationship of partnership or joint venture
between City and Applicant with respect to the development, operation, maintenance or management of the Site or
the Work.
3.4 Integration. This Agreement contains the entire understanding between the parties relating to the
transactions contemplated by this Agreement. All prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged in this Agreement and shall be of no further force or
effect.
3.5 Modifications. Any alteration, change or modification of or to this Agreement, in order to become
effective, shall be made in writing and in each instance signed on behalf of each party.
3.6 Conflicts of Interest. No member, official or employee of City shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision
relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested.
3.7 Applicant's Indemnity. Applicant shall indemnify, defend (with counsel reasonably acceptable to
City), protect and hold City, and its officers, employees, agents and representatives, harmless from, any and all
Claims of any kind or nature arising out of the Work or this Agreement or the implementation hereof, including, but
not limited to, any damages to property, injuries to persons or accidental death (including reasonable attorneys’ fees
and costs), which may be caused by the Work or any activities associated with the Work, whether such activities or
Work is performed by Applicant or by anyone directly or indirectly employed or contracted with by Applicant.
Applicant's indemnity obligations under this section shall survive termination of this Agreement. Applicant's indemnity
obligations under this section shall not extend to claims, demands, damages, defense costs or liability for property
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damage, bodily injury or death occasioned by the sole negligence or willful misconduct of the City, or its officers,
employees, agents or representatives.
3.8 Non-liability of Officials and Employees of City. No member, official or employee of the City
shall be personally liable to Applicant, or any successor in interest, in the event of any default or breach by City or for
any amount which may become due to Applicant or its successors, or on any obligations under the terms of this
Agreement.
3.9 Applicable Law. The laws of the State of California, without regard to conflict of laws principles,
shall govern the interpretation and enforcement of this Agreement.
3.10 No Third Party Rights. This Agreement is made and entered into solely for the benefit of the City
and Applicant and no other third party shall have any right of action under this Agreement.
3.11 Disclosure of Documents. Applicant acknowledges that the City is subject to the provisions of
the California Public Records Act and that any information submitted to the City may be disclosed to the extent
required by law.
3.12 Joint and Several Liability. Owner and Tenant are jointly and severally liable for any Claims
arising out of this Agreement.
3.13 Termination. In addition to City’s right to terminate under section 1.4, either party may terminate
this Agreement upon written Notice to the other in the event that the other party fails to comply with its obligations
under this Agreement.
IN WITNESS WHEREOF, City and Applicant have executed this Agreement on the respective dates set
forth below.
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Dated: February 1, 2022
CITY:
THE CITY OF DUBLIN, a public body, corporate and
politic
By:
Linda Smith,
City Manager
ATTEST:
Marsha Moore,
City Clerk
APPROVED AS TO FORM:
John Bakker,
City Attorney
OWNER:
Dublin Plaza
By:
Printed Name: Fred Delanoy
TENANT:
Dublin Cyclery
By:
Printed Name: Robert Beaman, III
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114.1001 2838533.1 10
EXHIBIT NO. 1
SCOPE OF WORK
Please see attached application, estimate, and rendering.
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b. A representative of the City shall inspect the completed Work after a completion notice has been
submitted to the City.
c. Upon determination by the City's representative that the Work has been completed in conformance
with the Scope of Work (Exhibit 1) and the City approvals, the City shall issue a check within 14
business days, made payable to the Applicant in an amount equal to the lesser of the Maximum
Grant Amount or the actual amount of the invoices submitted to the City by the Applicant.
d. Any and all costs of the Work, which are in excess of the Maximum Grant Amount, shall be the
sole responsibility of, and be borne by, the Applicant.
1.3 Permits and Approvals. Before commencement of the Work, Applicant shall secure or cause to
be secured any and all permits which may be required by the City and any other governmental agency affected by
such construction or work.
1.4 Commencement of the Work. Within 60 days after the Effective Date, Applicant shall have
selected and authorized one or more contractors to perform the Work, and shall have provided notice to the City of
such selection and authorization. In the event the Applicant fails to select and authorize a contractor or contractors to
perform the Work within such 60-day period, the City may, at its option, terminate this Agreement upon written notice
to the Applicant. In such event, neither party shall have any further rights against or liability to the other in connection
to this Agreement. All contractors performing the Work must be licensed in the State of California.
1.5 Building Permit. A Building Permit must be obtained within 6 months of the City Council’s
approval of funding. In the event the Applicant fails to obtain a Building Permit within such 6-month period, the City
may, at its option, terminate this Agreement upon written notice to the Applicant. In such event, neither party shall
have any further rights against or liability to the other in connection to this Agreement. Additional 6 months
extensions may be approved with the City’s prior written consent.
1.6 Completion of the Work. Applicant shall complete the Work and satisfy all other obligations and
conditions of this Agreement within 120 days of building permit issuance. This completion date is subject to revision
from time to time as mutually agreed upon in writing between Applicant and City's Economic Development Director,
or her designee.
1.7 Insurance Requirements. Before beginning any work under this Agreement, Applicant, or its
contractor shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to
property that may arise from or in connection with the performance of the work hereunder by the Applicant or its
contractor and its agents, representatives, employees, and subcontractors. Applicant shall provide proof satisfactory
to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all
respects to the City. Applicant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in the Applicant’s bid. Applicant shall not allow any
contractor or subcontractor to commence work on until Applicant has obtained all insurance required herein for the
contractor or subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be
submitted and made part of this Agreement prior to execution.
It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits shall be available to City as an additional
insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or
proceeds available to the named insured; whichever is greater. The additional insured coverage under the
Applicant’s policy shall be “primary and non-contributory” and will not seek contribution from City’s insurance or self-
insurance and shall be at least as broad as CG 20 01 04 12. In the event Applicant fails to maintain coverage as
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required by this Agreement, City at its sole discretion may purchase the coverage required and the cost will be paid
by Applicant. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance
policy shall include an endorsement providing that it shall not be cancelled, changed, or allowed to lapse without at
least thirty (30) days’ prior written notice to City of such cancellation, change, or lapse. All insurance required by this
section is to be placed with insurers with a Bests' rating of no less than A:VII.
1.7.1 Commercial General and Automobile Liability Insurance.
1.7.1.1 General requirements. Applicant or its contractor, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, combined single limit coverage for risks associated with the work
contemplated by this Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required occurrence
limit. Such coverage shall include but shall not be limited to, protection against claims
arising from bodily and personal injury, including death resulting therefrom, and damage
to property resulting from activities contemplated under this Agreement, including the use
of owned and non-owned automobiles.
1.7.1.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad
as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 Code 1 (“any auto”).
1.7.1.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
additional insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Contractor, including the insured’s general
supervision of Contractor; products and completed operations of Contractor;
premises owned, occupied, or used by Contractor; and automobiles owned,
leased, or used by the Contractor. The coverage shall contain no special
limitations on the scope of protection afforded to City or its officers, employees,
agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to
the City and its officers, officials, employees and volunteers, and that no
insurance or self-insurance maintained by the City shall be called upon to
contribute to a loss under the coverage.
d. Any failure of Contractor to comply with reporting provisions of the policy shall
not affect coverage provided to City and its officers, employees, agents, and
volunteers.
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e. An endorsement shall state that coverage shall not be canceled except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the City. Contractor shall notify City within 14 days of notification
from Contractor’s insurer if such coverage is suspended, voided or reduced in
coverage or in limits.
1.7.1.4 Verification of coverage. Prior to beginning any work under this Agreement, Applicant
shall furnish City with certificates of insurance and with original endorsements effecting
coverage required herein. 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 City reserves the right to require complete, certified copies of all required insurance
policies and endorsements. Failure to exercise this right shall not constitute a waiver of
right to exercise later.
1.7.1.5 Contractors and Subcontractors. Applicant agrees to include with all contractors or
subcontracts the same requirements and provisions of this Agreement including the
Indemnification and Insurance requirements to the extent they apply to the scope of the
Subcontractor’s work. Contractors or subcontractors hired by Applicant agree to be bound
to Applicant and the City in the same manner and to the same extent as Applicant is
bound to the City under the Contract Documents.
1.7.1.6 Variation. The City may approve a variation in the foregoing insurance requirements,
upon a determination that the coverages, scope, limits, and forms of such insurance are
either not commercially available, or that the City’s interests are otherwise fully protected.
1.7.1.7 Deductibles and Self-Insured Retentions. All self-insured retentions (SIR) and/or
deductibles must be disclosed to the City for approval and shall not reduce the limits of
liability. Policies containing any self-insured retention provision and/or deductibles shall
provide or be endorsed to provide that the SIR and/or deductibles may be satisfied by
either the named insured or the City.
1.7.1.8 Excess Insurance. The limits of insurance required in this Agreement may be satisfied
by a combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a
written contract or agreement) before City’s own insurance or self-insurance shall be
called upon to protect City as a named insured.
1.7.1.9 Notice of Reduction in Coverage. In the event that any coverage required by this
section is reduced, limited, or materially affected in any other manner, Applicant shall
provide written notice to City at Applicant’s earliest possible opportunity and in no case
later than five days after Applicant is notified of the change in coverage.
1.7.2 Remedies. In addition to any other remedies City may have if Applicant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required,
City may, at its sole option exercise any of the following remedies, which are alternatives to other
remedies City may have and are not the exclusive remedy for Applicant’s breach:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance
from any sums due under the Agreement;
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Order Applicant to stop work under this Agreement or withhold any payment that becomes due
to Applicant hereunder, or both stop work and withhold any payment, until Applicant
demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
1.8 Prevailing Wages. Applicant shall require any contractors performing the Work to pay prevailing
wages pursuant to the requirements of the California Labor Code, Section 1771, et seq. For the purpose of this
Agreement, prevailing wages are the general prevailing rate of per diem wages and the general prevailing rate for
holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute this
Agreement as ascertained by the Director of the Department of Industrial Relations of the State of California. The
holidays upon which such rates shall be paid shall be all holidays recognized in the collective bargaining agreement
applicable to the particular craft, classification, or type of worker employed on the project.
The Contractors and each subcontractor shall keep an accurate payroll record showing the name, address,
social security number, work classification, straight time and overtime hours worked each day and week and the
actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by the Contractors
or subcontractors in connection with the Work. The payroll records shall be kept in accordance with the provisions of
Section 1776 of the California Labor Code, and Contractor and each subcontractor shall otherwise comply with
requirements of such Section 1776.
1.9 Rights of Access. Representatives of the City shall have the reasonable right to access the Site,
without charges or fees, for the purpose of inspecting the Work. City (or its representatives) shall, except in
emergency situations, give Applicant reasonable advance notice prior to exercising its rights herein. Nothing herein
shall be deemed to limit the ability of the City to conduct code enforcement and other administrative inspections of
the Site in accordance with applicable law.
1.10 Improvements Cannot Be Removed by Owner or Tenant Without City’s Consent. All façade
improvements, including construction of an outdoor dining area, will become permanent fixtures of the property and
cannot be removed by owner or tenant upon expiry or termination of the lease or sale of the property. This includes,
but is not limited to tables, chairs, shade structures, lighting, fencing planter boxes and other landscaping. Exceptions
can be made with the prior written consent of the City.
1.11 Compliance with Laws; Indemnity; Waiver. Applicant shall carry out the work of Improvements
in conformity with all applicable federal, state and local laws, including Labor Code requirements; City zoning and
development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City's
Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Applicant shall defend (with counsel reasonably acceptable to City), indemnify and hold harmless the City
and its officers, employees, volunteers, agents and representatives from and against any and all present and future
liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs of
the counsel or joint-counsel retained by Applicant to defend City) (collectively, "Claims"), arising out of or in any way
connected with Applicant's obligation to comply with all laws with respect to the Work, including all Claims that may
be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and
1781.
Applicant hereby waives, releases and discharges forever the City, and its employees, officers, volunteers,
agents and representatives, from any and all present and future Claims arising out of or in any way connected with
this Agreement, the performance of the Work, or Applicant's obligation to comply with all laws with respect to the
Work.
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1.12 Nondiscrimination during Construction. The Applicant, for itself and its successors and
assigns, agrees that in selecting one or more contractors to perform the Work, the Applicant will not discriminate on
the basis of race, color, creed, religion, sex, age, handicap, marital status, ancestry or national origin.
2. MAINTENANCE COVENANTS. The Applicant covenants and agrees, for itself, its successors, its assigns
and every successor in interest to the Site or any part thereof, that the Applicant will maintain, at Applicant's own cost
and expense, the improvements on the Site in a clean and orderly condition, free of graffiti, and in good condition and
repair, and will keep the Site free from any accumulation of debris and waste materials. Any damage to the building
visible from the street is to be repaired immediately. The Applicant shall promptly touch up painted areas and
perform any other repairs needed to maintain an attractive building appearance, including cleaning all awnings, if
any, at least once a year. The foregoing covenants shall remain in effect for a period of 48 months from the
completion of the Work. During this 48-month period, Applicant agrees, for itself, its successors, its assigns and
every successor in interest, that it will not materially alter the façade, as improved with City funds, without the prior
written consent of City which consent may be conditioned by City to preserve façade features to the extent necessary
to achieve the objectives of City for entering into this Agreement. Any violation of this section not cured within 60
days shall entitle City to reimbursement of the funds granted by City from the person or entity responsible for the
violation.
3. GENERAL PROVISIONS
3.1 Assignment. Applicant shall have the right to assign all of its rights and obligations under this
Agreement, provided however that any such assignment shall be effective only upon receipt by City of written notice
of the assignment.
3.2 Notices, Demands and Communications between the Parties. Any approval, disapproval,
demand, document or other notice ("Notice") which either party may desire to give to the other party under this
Agreement must be in writing and shall be given by certified mail, return receipt requested and postage prepaid,
personal delivery, or reputable overnight courier (but not by facsimile or email), to the party to whom the Notice is
directed at the address of the party as set forth below, or at any other address as that party may later designate by
Notice.
To City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
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To Applicant: Owner
373 Village Square
Orinda, CA 94563
Attention: Fred Delanoy
And
Tenant
6993 Dublin Boulevard
Dublin, CA 94568
Attention: Kathleen Lowe
Any Notice shall be deemed received on the date of delivery if delivered by personal service, on the date of
delivery or refused delivery as shown by the return receipt if sent certified mail, and on the date of delivery or refused
delivery as shown by the records of the overnight courier if sent via nationally recognized overnight courier. Notices
sent by a party's attorney on behalf of such party shall be deemed delivered by such party.
3.3 Relationship between City and Applicant. It is hereby acknowledged that the relationship
between City and Applicant is not that of a partnership or joint venture and that City and Applicant shall not be
deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein
or in the Attachments hereto, City shall have no rights, powers, duties or obligations with respect to the development,
operation, maintenance or management of the Site or the Work. Applicant agrees to indemnify, hold harmless and
defend City from any claim made against City arising from a claimed relationship of partnership or joint venture
between City and Applicant with respect to the development, operation, maintenance or management of the Site or
the Work.
3.4 Integration. This Agreement contains the entire understanding between the parties relating to the
transactions contemplated by this Agreement. All prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged in this Agreement and shall be of no further force or
effect.
3.5 Modifications. Any alteration, change or modification of or to this Agreement, in order to become
effective, shall be made in writing and in each instance signed on behalf of each party.
3.6 Conflicts of Interest. No member, official or employee of City shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision
relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested.
3.7 Applicant's Indemnity. Applicant shall indemnify, defend (with counsel reasonably acceptable to
City), protect and hold City, and its officers, employees, agents and representatives, harmless from, any and all
Claims of any kind or nature arising out of the Work or this Agreement or the implementation hereof, including, but
not limited to, any damages to property, injuries to persons or accidental death (including reasonable attorneys’ fees
and costs), which may be caused by the Work or any activities associated with the Work, whether such activities or
Work is performed by Applicant or by anyone directly or indirectly employed or contracted with by Applicant.
Applicant's indemnity obligations under this section shall survive termination of this Agreement. Applicant's indemnity
obligations under this section shall not extend to claims, demands, damages, defense costs or liability for property
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damage, bodily injury or death occasioned by the sole negligence or willful misconduct of the City, or its officers,
employees, agents or representatives.
3.8 Non-liability of Officials and Employees of City. No member, official or employee of the City
shall be personally liable to Applicant, or any successor in interest, in the event of any default or breach by City or for
any amount which may become due to Applicant or its successors, or on any obligations under the terms of this
Agreement.
3.9 Applicable Law. The laws of the State of California, without regard to conflict of laws principles,
shall govern the interpretation and enforcement of this Agreement.
3.10 No Third Party Rights. This Agreement is made and entered into solely for the benefit of the City
and Applicant and no other third party shall have any right of action under this Agreement.
3.11 Disclosure of Documents. Applicant acknowledges that the City is subject to the provisions of
the California Public Records Act and that any information submitted to the City may be disclosed to the extent
required by law.
3.12 Joint and Several Liability. Owner and Tenant are jointly and severally liable for any Claims
arising out of this Agreement.
3.13 Termination. In addition to City’s right to terminate under section 1.4, either party may terminate
this Agreement upon written Notice to the other in the event that the other party fails to comply with its obligations
under this Agreement.
IN WITNESS WHEREOF, City and Applicant have executed this Agreement on the respective dates set
forth below.
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Dated: February 1, 2022
CITY:
THE CITY OF DUBLIN, a public body, corporate and
politic
By:
Linda Smith,
City Manager
ATTEST:
Marsha Moore,
City Clerk
APPROVED AS TO FORM:
John Bakker,
City Attorney
OWNER:
Dublin Plaza
By:
Printed Name: Fred Delanoy
TENANT:
Hair Emporium
By:
Printed Name: Kathleen Lowe
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114.1001 2838533.1 10
EXHIBIT NO. 1
SCOPE OF WORK
Please see attached application, estimate, and rendering.
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