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HomeMy WebLinkAbout4.2 - 2388 Notice of City Engineer’s Receipt of Final Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: February 5, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Notice of City Engineer’s Receipt of Final Map for Review for Tract 8371 and Pending Decision on Improvement Agreement Amendments for Tracts 8307 and 8308 Prepared by: Laurie Sucgang, Assistant Public Works Director/City Engineer EXECUTIVE SUMMARY: The City Council will receive a notification of the City Engineer’s receipt of the Final Map for review for Tract 8371, Boulevard Development, and pending approval of the Improvement Agreement Amendments for Tracts 8307 and 8308, Boulevard Development. STAFF RECOMMENDATION: Receive the notification. FINANCIAL IMPACT: There is no impact on the General Fund. DESCRIPTION: The Boulevard Development (formerly Dublin Crossing) is located along Dublin Boulevard, between Scarlett Drive and Arnold Road. The development is being subdivided into several neighborhoods. The developer has prepared the Tract 8 371 Final Map for Neighborhood 20 and has submitted it for review by Staff. In accordance with Chapter 9.24.080 of the City of Dublin Municipal Code, this is notice of the following: ☒ City Engineer’s receipt of the following Final Map(s) for review: Tract Location Developer Number of Units/Lots Type 8371 Boulevard, Neighborhood 20 Dublin Crossing, LLC 75 Lots Single Family Residence Page 2 of 2 Brookfield Wilshire LLC and the City previously entered into an Improvement Agreement for Tract 8307 - Wilshire at Boulevard, Dublin Crossing Phase 1A, dated December 21, 2016. Brookfield Wilshire LLC has executed a First Amendment to the Improvement Agreement extending the completion time by 18 months, for a new completion date of June 21, 2020. Staff has reviewed the request for an extension submitted by Brookfield Wilshire LLC and recommends that the City Engineer approve the First Amendment to the Improvement Agreement. Brookfield Bay Area Holdings LLC and the City previously entered into an Improvement Agreement for Tract 8308 - Huntington at Boulevard, Dublin Crossing Phase 1A, dated December 21, 2016. Brookfield Bay Area Holdings LLC has executed a First Amendment to the Improvement Agreement extending the completion time by 18 months, for a new completion date of June 21, 2020. Staff has reviewed the request for an extension submitted by Brookfield Bay Area Holdings LLC and recommends that the City Engineer approve the First Amendment to the Improvement Agreement. In accordance with Chapters 9.24.070.B and 9.24.080 of the City of Dublin Municipal Code, this is notice of the City Engineer’s pending approval of the following: Tract Location Developer Type Amendment 8307 Boulevard, Dublin Crossing Phase 1A, Neighborhood 3 Brookfield Wilshire LLC Amendment No. 1 Extension of Time Period 8308 Boulevard, Dublin Crossing Phase 1A, Neighborhood 4 Brookfield Bay Area Holdings LLC Amendment No. 1 Extension of Time Period STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. First Amendment to Improvement Agreement for Tract 8307 2. Improvement Agreement for Tract 8307 3. First Amendment to Improvement Agreement for Tract 8308 4. Improvement Agreement for Tract 8308 FIRST AMENDMENT TO CITY OF DUBLIN TRACT IMPROVEMENT AGREEMENT (TRACT 8307) This First Amendment is made and entered into this day of 2019, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY," and Brookfield Wilshire LLC, hereinafter referred to as "DEVELOPER." RECITALS 1. - CITY and DEVELOPER are parties to that certain Improvement Agreement, Tract 8307 for the Wilshire at Boulevard, Dublin CrossingPhase I Project, dated December 21, 2016 ("the Agreement"). 2. The Agreement requires DEVELOPER to complete certain Improvements as defined in the Agreement prior to December 21, 2018. 3. DEVELOPER has requested that it be given additional time to commence and complete the construction of the 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. Comoletion Time. Time is of the essence in this Agreement. DEVELOPER shall complete the Improvements no later than June 21, 2020. Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set of final Record Drawings of the Improvements, including any modifications made during construction." Section 2. All requisite insurance policies to be maintained by the DEVELOPER pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. Section 3. The individuals executing this First Amendment and the instruments referenced in it on behalf of DEVELOPER each represent and warrant that they have the legal power, right and actual authority to bind DEVELOPER to the terms and conditions of this First Amendment. -1— Section 4. All other provisions of the Agreement shall remain in effect. 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 Andrew C. Russell, City Engineer 29371,12.1 201800071s BROOKFIELD WILSHIRE LLC a Delaware limited liability company Bv: Jost ,,Roden Au(horized Representative VA CITY OF DUBLIN IMPROVEMENT AGREEMENT Tract 8307 - Wilshire at Boulevard Dublin Crossing Phase 1A This agreement is made and entered into thisday of ��Lf6'//�� 2016 (hereinafter this "Agreement'j, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY', and Brookfield Wilshire LLC, a Delaware limited liability company, hereinafter referred to as "DEVELOPER". RECITALS WHEREAS, it has been determined by the CITY, that DEVELOPER, the subdivider of Tract 8307 -Wilshire at Boulevard, also known as Dublin Crossing Phase 1A Neighborhood 3, (the "Subdivision"), desires to construct improvements (hereafter "The Improvements") in accordance with the requirements and conditions set forth in the City of Dublin Planning Commission Resolution No. 16-11 (PLPA-2015-00062), adopted on June 14, 2016, the requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance of the CITY, and those certain plan and specifications for said development approved by the City Engineer (the "Plans and Specifications"), as follows: • "Improvement Plans,. Tract 8307 V�Ishire at Boulevard" (27 Sheets, Sheets C0.0- C8.1), prepared by Ruggeri -Jensen -Azar, dated 10/20/2016, approved on 10/25/2016, • "Joint Trench Plans — Brookfield Residential Wilshire at Boulevard Tract 8307 — NHBD 3" (2 Sheets JT1.1-JT1.2), prepared by Giacalone Design Services, Inc., dated approved • shire at Boulevard Neighborhood 3 — Private Street Lighting" (3 Sheets, Sheets SL1-SL3), prepared by Giacalone Design Services, Inc., dated 10/6/2016, approved 10/2512016, • "On -Site Landscape Plans —Boulevard Neighborhood 3 -Wilshire" (19 sheets, Sheet L0.1- L5.2)3prepared by Gates &Associates, dated 10/24/2016I approved 10/25/2016 and now on file in the office of the City Engineer, which are hereby referred to for a more definite and distinct description of the work to be pertormed under this Agreement as though set forth at length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept DEVELOPER's offers) of dedication of The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement; and WHEREAS, CITY has determined that The Improvements are a public works subject to Califomia prevailing wage requirements: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: 1. Completion Time. DEVELOPER will commence construction of The Improvements within thirty (30) days following the date on which CITY executes this agreement. DEVELOPER shall complete the construction of The Improvements not later than two (2) years following said date of execution of this agreement, unless the completion date is extended by the City. Time is of the essence in this Agreement. 2. Estimated Cost of Improvements. The estimated cost of constructing The Improvements required by this agreement is agreed to be $2,060,160.00 and is based on the Bond Estimates — Wilshire at Boulevard (N3) dated 10/3/16 , prepared by Ruggeri -Jensen -Azar, Landscape Bond Esimate, dated 10/312016, prepared by Giacalone Design Services, Inc., attached to this agreement as Exhibit "A", (collectively, the "Bond Estimates"). Said amount includes estimated costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured by the bonds summarized in the Bond Estimates, 3. 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 Perormance. 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 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed (the "Faithful Performance Bond') 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 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor (the "Labor and Materials Bond'), C. Warranty. Prior to acceptance of The Improvements as complete by the City Engineer, DEVELOPER, shall furnish CITY with 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 twenty per cent (20%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed from the date on which the City Engineer accepts the work as complete until one year thereafter (collectively, the "Warranty Bond'). i•7 CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisions of Chapter 5 of the Subdivision Map Act, 4. Insurance Required. Prior to commencing construction of the improvements, DEVELOPER shall obtain or cause to be obtained and filed with the CITY, certificates and endorsements of insurance evidencing the insurance required under this Paragraph. Prior to the commencement of the construction of The Improvements, DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, certificates and endorsements of insurance evidencing the insurance required under this Paragraph. DEVELOPER shall not allow any contractor or subcontractor to commence the construction of The Improvements under a contract or subcontract until all certificates and endorsements of insurance required from DEVELOPER and DEVELOPER's general contractor have been filed and approved by City. Said insurance shall be maintained in full force and effect until the completion of The Improvements and the final acceptance thereof by CITY. All requirements herein provided shall be evidenced by the certificates and endorsements of insurance provided by DEVELOPER and DEVELOPER's general contractor and shall specifically bind the insurance carrier. A. Minimum Scopebf Insurance.. Coverage shall be at least as broad as: 1) Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001) 2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 any auto" and endorsement CA 0025. 3) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4) Minimum Limits of Insurance. DEVELOPER shall maintain limits no less than: a) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. b) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. c) WorkersCompensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. B. Deductibles and Self -Insurance Retentions. Any deductibles or self - insured retentions must be declared to and approved by the CITY. At the option of the CITY, DEVELOPER shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1) General Liability and Automobile Liability Coverages. a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the DEVELOPER; products and completed operations of the DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hired or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. b) The DEVELOPER'S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers,. officials, employees or volunteers. d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the CITY., its officers, officials, employees and volunteers for losses arising from work performed by the DEVELOPER for the CITY. C! 3) All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than ANIL b) Verification of Coverage. 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. 5. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guarantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to, The Improvements, or otherwise delivered to CITY as a part of The Improvements pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after initial acceptance of The Improvements by CITY. DEVELOPER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one-year guarantee period without expense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and agrees that in the event DEVELOPER repairs or replaces a part of The Improvements that proves to be defective in design, workmanship and materials within the one-year guarantee period set forth in this Paragraph 5, the one-year guarantee period for such repaired or replaced part of The Improvements shall automatically extend for an additional one-year period commencing on the date DEVELOPER completes the repair or replacement of such defects have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days' time, after being notified of the defect in writing, CITY shall 5 have the right, but shall not be obligated, to repair or obtain the repair of the defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results in a condition which constitutes an immediate hazard to the public health, safety, or welfare, CITY shall have the right to immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of CITY. If CITY, at its sole option, makes or causes to be made the necessary repairs or replacements or performs the necessary work, DEVELOPER shall pay, in addition to actual costs and expenses of such repair or work, twenty five percent (25%) of such costs and expenses for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30) days from the date of billing for such work or repairs. 6. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its City Engineer and designated representative for the safe and convenient inspection of The Improvements throughout its construction. Said CITY representative shall have the authority to reject all materials and workmanship which are not in accordance with the Plans and Specifications, and all such materials and or work shall be removed promptly by DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the Plans and Specifications. 7. Agreement Assignment. This Agreement shall not be assigned by DEVELOPER without the written consent of CITY, which shall not be unreasonably withheld, denied, or delayed. 8. Abandonment of Work. Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be considered to be agents of CITY in connection with the pertormance of DEVELOPER'S obligations under this Agreement. If DEVELOPER refuses or fails to complete the construction The Improvements, or any severable part thereof, within the time specified in this agreement, or any extension thereof, or any of DEVELOPER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, then CITY may deliver written notice to DEVELOPER requesting that DEVELOPER complete the construction of the incomplete Improvements or cure the violation of this Agreement. In the event DEVELOPER fails to take reasonable actions to commence the construction of the incomplete Improvements or cure the violation of this Agreement identified in CITY's written notice within thirty (30) days of DEVELOPER's receipt of such written notice, or if DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the benefit of DEVELOPER's creditors, or if a receiver should be appointed for DEVELOPER, the CITY through its City Engineer may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of the breach of this Agreement, or of any portion thereof, by 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 construction of The Improvements; 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 construction of The Improvements and does not commence performance thereof within thirty (30) days after notice to CITY of such election, CITY may take over the construction of The Improvements 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 constructing The Improvements, such materials, appliances, plant and other property belonging to DEVELOPER as may be on the site upon which The Improvements are to be constructed and necessary for the construction thereof. 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: Andrew Russell, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Brookfield Wilshire LLC c/o Brookfield Residential 500 La Gonda Way, Suite 100 Danville, CA 94526 (925) 74M000 Attn: Josh Roden Notices required to be given surety of DEVELOPER shall be addressed as follows: Liberty Mutual Insurance Company 181 Bay Street, Suite 1000 Brookfield Place Toronto, Ontario M5J2T3 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. 9. Use of Streets or Improvements. At all times prior to the final acceptance of The Improvements by CITY, the use of any or all streets and improvements which are part of The Improvements shall be at the sole and exclusive risk of DEVELOPER. The issuance of any building or occupancy permit by CITY for dwellings located within the Subdivision shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all of The Improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially and/or detrimentally affect public health and safety. 10. Safety Devices. DEVELOPER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on site upon which The Improvements are to be constructed, 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. Upon the completion of The Improvements, all fences, barriers, regulatory signs, warning lights, and other safety devices (except such safety items as may be shown on the Plans and Specifications and which are a part of The Improvements shall be removed from the site upon which The Improvements are constructed by DEVELOPER, and the entire site shall be left clean and orderly. 11, Acceptance of Work. Upon notice of the completion of The Improvements and. the delivery of a set of final as -built plans for The Improvements to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine The Improvements without delay, and, if found to be in accordance with said plans and specifications and this Agreement, and upon receipt of the Warranty Bond, shall accept The Improvements and, upon such acceptance, shall thereafter release the Faithful Performance Bond and the Labor and Materials Bond in accordance with the requirements of the Government Code of the State of California. 12. Patent and Copyright Costs. In the event that said Plans and Specifications require the use of any material, process or publication which is subject to a duly registered patent. or copyright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. 0 1I Alterations in Plans and Specifications. Any alteration or alterations made in the Plans and Specifications or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds delivered in accordance with Paragraph 3 of this Agreement, and consent to make such alterations is hereby given by CITY, and the sureties to said bonds shall waive the provisions of Section 2819 of the Civil Code of the State of California. 14. Liabtlit . A. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the design and construction of The Improvements will not adversely affect any portion of adjacent properties and that all work required to construct The Improvements will be performed in a proper manner. DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers agents and employees (collectively, the "CITY Parties"), from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action of every kind, nature and description, directly or indirectly arising from an act or omission of DEVELOPER, its employees, agents, or independent contractors in connection with DEVELOPER'S actions and obligations hereunder; provided however, nothing in this Paragraph 14 shall operate to require DEVELOPER to indemnify, defend, release or save harmless CITY or the CITY Parties from and against any loss, claim, suit, liability, action, damage or cause of action arising from, related to or caused by the negligence or intentional or willful misconduct of CITY or The City Parties. Notwithstanding the foregoing, DEVELOPER AND CITY acknowledge and agree 1) CITY does not, and shall not, waive any rights against DEVELOPER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any of the insurance policies described in Paragraph 4 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 construction of The Improvements, or regardless of whether or not the insurance policies described in Paragraph 4 of this Agreement have been determined to be applicable to any of such damages or claims for damages. 3) Design Defect. If, in the opinion of the CITY, a design defect in The Improvements becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of The Improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, DEVELOPER shall, upon order by the CITY, correct said design defect at DEVELOPER's sole cost and expense, and the sureties under the Faithful Performance and Labor and Materials Bonds described in Paragraph 3 of this Agreement shall be liable to the CITY for the corrective work required. 4) gation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. If CITY is the prevailing party, CITY shall also be entitled to recover its attorney's fees and costs in any action against DEVELOPER's surety on the bonds provided under paragraph 3 of this Agreement. 15. 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 BY: /ZL�f�dO�� ndrew C. Russell City Engineer DEVELDPER BROOKFIELD WILSHIRE LLC, a Delaware limited liability company By: r Nam : Title: �J't� By: Na e: C, c pit Title: f[I EXHIBIT "A" BOND ESTIMATES [Please See Attached) �fl 1 RUGGERI•JENSEN•AZAR ENGINEERS PLANNERS • SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8307 - WILSHIRE AT BOULEVARD (N3) DUBLIN, CALIFORNIA October 3, 2016 (Onsite Improvements Bond Estimate) Job No. 081076BRIA Page 1 of 3 SUMMARY A. SITE WORK $44000 B. ASPHALT PAVING $110,340 C. CONCRETE $114,120 D. STORM DRAIN $449,030 E. MISCELLANEOUS $115700 F. LANDSCAPE $663,280 G. JOINT TRENCH $249,430 SUBTOTAL = $11745,900 10% CONSTRUCTION CONTINGENCY = $174,590 8% ENGINEERING CONTINGENCY = $139,670 TOTAL ESTIMATED ON -SITE CONSTRUCTION COST = $2,060,160 Notes: 1. All cost figures are given as estimates only. Actual cost will be dependent on the cost figures at bidding time; the general market situation, contractofs work load, seasonal factor, labor and cost, etc. This engineering firm cannot be responsible for fluctuations in cost factors. 2. This engineer's opinion is based on the Improvement Plans -Tract 0307 Wilshire by RuggeriJensen-Azar, dated September 12, 2016. 3. This engineer's opinion does not include costs for sanitary sewer and water. a.+loEbIOCW 10166RNML,IE�GNu`LTP PW,wT46f0]BBRlA Gy q OupiL&1001_,gtlat�18100f n 4890 CHABOT DRIVE, SUITE 200, PLEASANTON, CA 94588 T; (925) 227.910D I F; (926) 227.93001 wvAv.rja•gpa.com lI RUGGERI•JENSEN•AZAR ENGINEERS • PLANNERS SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8307 • WILSHIRE AT BOULEVARD (N3) DUBLIN, CALIFORNIA October 3, 2016 (OnsfteImprovements Bond Estimate) Job No.081076BRlA Page 2 of 3 ITEM DESCRIPTION QUANTITY UNIT PRICE AMOUNT A. SITE WORK 1. Pad Fine Grading (Motoroourts) 2. Erosion Control 8 SWPPP Implementation B. ASPHALT PAVING 1, Fine Grading (RW to RW) 2, AC Paving (WAC / 8"AB) 3. Stamped Asphalt in Motorcourts C. CONCRETE 1, 6" Curb and Gutter 2. 6" Vertical Curb 3. 3' Valley Gutter 4. Sidewalk (in streets) 5. Curb Ramps 6. Driveways D. STORM DRAIN 1. 12" SD 2, 18" SD 3. Conned to Existing SO 4, Drop Inlets 5, Storm Water Inlets 6. Storm Drain Manhole 7. 8" PVC Area Drain Pipe 8. Area Drain 9. 4" PVC Roof Drain Pipe 10. Bubble Up Drain 11. Low Flow Pump 12. 4" Force Mein 13. Trash Capture Screen E. MISCELLANEOUS 1. Signing &Striping 2. Blo-Retention 3. Street Lights F. LANDSCAPE 1. Pedestrian Concrete Paving 2. Integral Color Concrete Paving 3, Concrete Wall 4 Low Accent Wall with Column 5. Patio Fence 6. Patio Gate 7, Stool 8. Metal Tree Grate and Frame 9. Concrete Step Stones 10. Tree, 24" Box 8 EA $3,000.00 $24,000 1 LS $20,000,00 $20,0D0 $44,000 27,178 SF $0.30 $8,150 23,341 SF $4,00 $93,360 1,766 SF $5.00 $8,830 110,340 819 LF $35.00 $28,670 739 LF $18.00 $13,300 458 LF $25.00 $11;450 3,400 SF $8,00 $27,200 5 EA $3,500.00 $17,500 8 EA $2,000.DO $16,000 SUBTOTAL = 114,12g 1,643 LF $50.00 $82,150 278 LF $60,00 $16,680 4 EA $1,500,00 $81D00 33 EA $1,500,00 $49,500 7 EA $2,500.00 $17,500 9 EA $3,500,00 $31,500 1,713 LF $25.00 $42,830 85 EA $200.00 $17,000 862 LF $25.00 $21,550 39 EA $300,00 $11,700 1 LS $137,100,00 $137,100 308 LF $40.00 $12,320 4 EA $800.00 $3,200 SUBTOTAL= $4491030 1 LS $34000,00 $3,000 4,585 SF $20.DO $91,700 6 EA $3,500,00 $21,0D0 SUBTOTAL = 1151700 17,991 SF $12.00 $215,892 4,158 SF $18,00 $74,844 135 SF $25.0.00 $33,760 227 LF $350,00 $799450 944 LF $60.00 $56,640 28 EA $350.00 $9,800 40 EA $350,00 $14,0D0 6 EA $25.00 $150 49 EA $5.00 $245 135 EA $400.00 $54,000 a:ymzmenerwsanwmx�auiprsn.wmerorma_rn.crrd WE6,_ssa_upeaat_imow,a 4690 CHABOT DRIVE, SUITE 200, PLEASAN70N, CA 94588 T: (A25) 227.91001 F: (925) 227.93001 wunv,rJa gpe,cam 1\ ; RUGGERI-JENSEN-AZAR ENGINEERS • PLANNERS SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8307 - WILSHIRE AT BOULEVARD (N3) DUBLIN, CALIFORNIA October 3, 2016 (Onsite Improvements Bond Estimate) Job No. 081076BRlA Page 3 of 3 ITEM I]ESCRIPTION QUANTITY UNIT PRICE AMOUNT 11. Tree, 15 Gallon 45 F.A 12. Shrub, 5 Gallon 21183 EA 13. Shrub, 1 Gallon 11497 EA 14. Mulch 26,651 SF 15. Soil Amendment and Preparation 26,651 SF 16. Root Control Binder 2,6D9 LF 17. Landscape Maintenance (120 days) 26,651 SF SUBTOTAL= G. JOINTTRENCN 1. Trenching (1,000 LF) 2. Vaults and Splice Boxes (Supply, Install & Excavation) a. PG&E b. Telephone G. CAN 3. Conduits - Supply and Install a. PG&E b. Telephone c. CAN - Installed by CAN 4. PG&E Electrical System 5. PG&E Gas System 6. Street Lighting 7. Service Completions $300.00 $13,500 $17.00 $37,111 $10.00 $14,970 $0'65 $17,323 $0.50 $13,326 $9.00 $23,481 $0A8 $4,797 663,280 1 LS $26,400.00 $26,400 1 LS $67,190,00 $67,190 1 LS $3,840.00 $3,840 1 LS $2,400.00 $23400 1 LS $8,000.00 $B4O00 1 LS $81000.00 $B4ODO 1 LS $4,000,00 $4,000 1 LS $67,500,00 $671500 1 LS $71000.00 $71D00 1 LS $35,100.00 $35,100 1 LS $20,000,00 $20,0D0 SUBTOTAL = $249,435 o:Wcxoxaerorea¢vcnmt<,m,Yavnp v�.,,rvnmiorcertbcryaowm_suew_„yau��eiawxs 4890 CHABOT DRIVE, SUITE 200, PLEASANTON, CA 94588 T: (925) 227.91001 F: (925) 227.93DD I1wAv.r)agps.rwm FIRST AMENDMENT TO CITY OF DUBLIN TRACT IMPROVEMENT AGREEMENT (TRACT 8308) This First Amendment is made and entered into this day of 2019, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY," and Brookfield Bay Area Holdings LLC, hereinafter referred to as "DEVELOPER." RECITALS 1. CITY and DEVELOPER are parties to that certain Improvement Agreement, Tract 8308 for the Huntington at Boulevard, Dublin Crossing Phase I Project, dated December 21, 2016 ("the Agreement"). T 2. The Agreement requires DEVELOPER to complete certain Improvements as defined in the Agreement prior to December 21, 2018. 3. DEVELOPER has requested that it be given additional time to commence and complete the construction of the 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. Completion Time. Time is of the essence in this Agreement. DEVELOPER shall complete the Improvements no later than dune 21, 2020. Upon completion, DEVELOPER shall furnish CITY with a complete and reproducible set of final Record Drawings of the Improvements, including any modifications made during construction." Section 2. All requisite insurance policies to be maintained by the DEVELOPER pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. Section 3. The individuals executing this First Amendment and the instruments referenced in it on behalf of DEVELOPER each represent and warrant that they have the legal power, right and actual authority to bind DEVELOPER to the terms and conditions of this First Amendment. —1— Section 4. All other provisions of the Agreement shall remain in effect. 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 Andrew C. Russell, City Engineer 2937142.1 20180607Is BROOKFIELD BAY AREA HOLDINGS LLC a Delaware limited liability company By: osh Ro en Authorized Representative —2— CITY OF DUDLIN IMPROVEMENT AGREEMENT Tract 8308 - Huntington at Boulevard Dublin Crossing Phase 1A This agreement is made and entered into this 22/ day of 4�LIW / , 20165 (hereinafter this, "Agreement'), by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and Brookfield Bay Area Holdings LLC, a Delaware limited liability company, hereinafter referred to as "DEVELOPER". RECITALS WHEREAS, it has been determined by the CITY that DEVELOPER, the subdivider of Tract 8308 - Huntington at Boulevard, also known as Dublin Crossing Phase 1A — Neighborhood 4, (the "Subdivision") desires to construct improvements (hereafter "The Improvements") in accordance with the requirements and conditions set forth in the City of Dublin Planning Commission Resolution No. 16-11 (PLPA-2015-00062), adopted on June 14, 2016, the requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance of the CITY, and those certain plan and specifications for said development approved by the City Engineer (the "Plans and Specifications"), as follows: • "Improvement Plans, Tract 8308 Huntington at Boulevard" (18 Sheets,. Sheets C0.0- C7.1), prepared by Ruggeri -Jensen -Azar, dated 99/01/2016, approved 11/9/2016. • "Joint Trench Plans — Brookfield Residential Huntington at Boulevard Tract 8308 — NHBD 4" (2 Sheets JT1.1-JT1.2), prepared by Giacalone Design Services, Inc., dated approved • "Huntington at Boulevard Neighborhood 3 — Private Street Lighting" (3 Sheets, Sheets SL1-SL3), prepared by Giacalone Design Services, Inc., dated 11/02/2016, approved 11 /9/2016. • "On -Site Landscape Plans —Boulevard Neighborhood 4 -Huntington" (19 sheets, Sheet L0.1- L5I prepared by Gates &Associates, dated 11/1/2016I approved 11 /9/2016. and now on file in the office of the City Engineer, which are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the time hereinafter specified, and CITY intends to accept DEVELOPER'S offers) of dedication of The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement; and WHEREAS, CITY has determined that The Improvements are a public works subject to California prevailing wage requirements: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: 1. Completion Time. DEVELOPER will commence construction of The Improvements within thirty (30) days following the date on which CITY executes this agreement. DEVELOPER shall complete the construction of The Improvements not later than two (2) years following said date of execution of this agreement, unless the completion date is extended by the City. Time is of the essence in this Agreement. 2. Estimated Cost of Improvements. The estimated cost of constructing The Improvements required by this agreement is agreed to be $3,086,250.00 and is based on the Bond Estimates — Huntington at Boulevard (N4) dated 10/3/16 , prepared by Ruggeri -Jensen -Azar, Landscape Bond Estimate, dated 10/3/2016, prepared by Giacalone Design Services, Inc. attached to this agreement as Exhibit "A", collectively, the "Bond Estimates").. Said amount includes estimated costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured by the bonds summarized in the Bond Estimates 3. Bonds Furnished. Concurrently with the execution of this Agreement, DEVELOPER shall furnish CITY with the Following security in a form satisfactory to the City Attorney: A. Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred percent (100%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed (the "Faithful Performance Bond') 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 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons furnishing labor, materials, or equipment shall be paid therefor (the "Labor and Materials Bond') C. Warranty. Prior to acceptance of The improvements as complete by the City Engineer, DEVELOPER shall furnish CITY with 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 twenty per cent (20%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily completed from the date on which the City Engineer accepts the work as complete until one year thereafter (collectively, the "Warranty Bond'). 2 CITY shall be the sole indemnitee named on any instrument required by this Agreement. Any instrument or deposit required herein shall conform to the provisions of Chapter 5 of the Subdivision Map Act, 4. Insurance Required. Prior to commencing construction of the improvements, DEVELOPER shall obtain or cause to be obtained and filed with the CITY, certificates and endorsements of insurance evidencing the insurance required under this Paragraph. Prior to the commencement of the construction of The Improvements, DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, certificates and endorsements of insurance evidencing the insurance required under this Paragraph. DEVELOPER shall not allow any contractor or subcontractor to commence the construction of The Improvements under a contract or subcontract until all certificates and endorsements of insurance required from DEVELOPER and DEVELOPER's general contractor have been filed and approved by City.. Said insurance shall be maintained in full force and effect until the completion of The Improvements and the final acceptance thereof by CITY. All requirements herein provided shall be evidenced by the certificates and endorsements of insurance provided by DEVELOPER and DEVELOPER's general contractor and shall specifically bind the insurance carrier. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1) Insurance Services Office form number GL 0002 (Ed. 1l73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) 2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4) Minimum Limits of Insurance. DEVELOPER shall maintain limits no less than: a) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. b) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. c) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. B. Deductibles and Self -Insurance Retentions. Any deductibles or self - insured retentions must be declared to and approved by the CITY. At the option of the CITY, DEVELOPER shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1) General Liability and Automobile Liability Coverages. a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the DEVELOPER; products and completed operations of the DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hired or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. b) The DEVELOPER'S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees and volunteers for losses arising from work performed by the DEVELOPER for the CITY. CI 3) All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. b) Verification of Coverage. DEVELOPER certificates of insurance and with original coverage required by this clause. endorsements for each insurance policy person authorized by that insurer to bind The certificates and endorsements an shall furnish CITY with endorsements effecting The certificates and are to be signed by a coverage on its behalf, to be received and c) Subcontractors. DEVELOPER andlor 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. 5. Work Performance and Guarantee. Except as otherwise expressly provided in this Agreement, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guarantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices of whatsoever nature incorporated in, or attached to The Improvements, or otherwise delivered to CITY as a part of The Improvements pursuant to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after initial acceptance of The Improvements by CITY. DEVELOPER shall repair or replace any or all such work or material, together with all or any other work or materials which may be displaced or damaged in so doing, that may prove defective in workmanship or material within said one-year guarantee period without expense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and agrees that in the event DEVELOPER repairs or replaces a part of The Improvements that proves to be defective in design, workmanship and materials within the one-year guarantee period set forth in this Paragraph 5, the one-year guarantee period for such repaired or replaced part of The Improvements, shall automatically extend for an additional one-year period commencing on the date DEVELOPER completes the repair or replacement of such defects have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days' time, after being notified of the defect in writing, CITY shall if a receiver should be appointed for DEVELOPER, the CITY through its City Engineer may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of the breach of this Agreement, or of any portion thereof, by 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 construction of The Improvements; 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 construction of The Improvements and does not commence performance thereof within thirty (30) days after notice to CITY of such election, CITY may take over the construction of The Improvements 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 constructing The Improvements, such materials, appliances, plant and other property belonging to DEVELOPER as may be on the site upon which The Improvements are to be constructed and necessary for the construction thereof. 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: Andrew Russell, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Brookfield Bay Area Holdings LLC c/o Brookfield Residential 500 La Gonda Way, Suite 100 Danville, CA 94526 (925) 74M000 Attn: Josh Roden Notices required to be given surety of DEVELOPER shall be addressed as follows: Liberty Mutual Insurance Company 181 Bay Street, Suite 1000 Brookfield Place Toronto, Ontario M5J2T3 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. 9. Use of Streets or Improvements. At all times prior to the final acceptance of The Improvements by CITY, the use of any or all streets and improvements which are part of The Improvements shall be at the sole and exclusive risk of DEVELOPER. The issuance of any building or occupancy permit by CITY for dwellings located within the Subdivision shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all of The Improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially and/or detrimentally affect public health and safety. 10. Safety Devices. DEVELOPER shall provide and maintain such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on site upon which The Improvements are to be constructed 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. Upon the completion of The Improvements„ all fences, barriers, regulatory signs, warning lights, and other safety devices (except such safety items as may be shown on the Plans and Specifications and which are part of The Improvements) shall be removed from the site upon which The Improvements are constructed by DEVELOPER, and the entire site shall be left clean and orderly. 11. Acceptance of Work. Upon notice of the completion of The Improvements and the delivery of a set of final as -built plans for The Improvements to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine The Improvements without delay, and, if found to be in accordance with said plans and specifications and this Agreement, and upon receipt of the Warranty Bond, shall accept The Improvements and, upon such acceptance, shall thereafter release the Faithful Performance Bond and the Labor and Materials Bond in accordance with the requirements of the Government Code of the State of California. 12. Patent and Copyright Costs. In the event that said Plans and Specifications require the use of any material, process or publication which is subject to a duly registered patent or copyright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. 13. Alterations in Plans and Specifications. 13 Any alteration or alterations made in the Plans and Specifications or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds delivered in accordance with Paragraph 3 of this Agreement. and consent to make such alterations is hereby given by CITY, and the sureties to said bonds shall waive the provisions of Section 2819 of the Civil Code of the State of California. 14. Liability. A. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the design and construction of The Improvements will not adversely affect any portion of adjacent properties and that all work required to construct The Improvements will be performed in a proper manner. DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and each of its elective and appointive boards, commissions, officers agents and employees (collectively, the "CITY Parties"), from and against any and all loss, claims, suits, liabilities, actions, damages, or causes of action of every kind, nature and description, directly or indirectly arising from an act or omission of DEVELOPER, its employees, agents, or independent contractors in connection with DEVELOPER'S actions and obligations hereunder; provided however, nothing in this Paragraph 14 shall operate to require DEVELOPER to indemnify, defend, release or save harmless CITY or the CITY Parties from and against any loss, claim, suit, liability, action, damage or cause of action arising from, related to or caused by the negligence or intentional or willful misconduct of CITY or The City Parties. Notwithstanding the foregoing, DEVELOPER AND CITY acknowledge and agree 1) CITY does not, and shall not, waive any rights against DEVELOPER which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by CITY, or the deposit with CITY by DEVELOPER, of any of the insurance policies described in Paragraph 4 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 construction of The Improvements, or regardless of whether or not the insurance policies described in Paragraph 4 of this Agreement have been determined to be applicable to any of such damages or claims for damages. 3) Design Defect. If, in the opinion of the CITY, a design defect in The Improvements becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of The Improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, DEVELOPER shall, upon order by the CITY, correct said design defect at DEVELOPER's sole cost and expense, and the sureties under the Faithful Performance and Labor and Materials Bonds described in FI Paragraph 3 of this Agreement shall be liable to the CITY for the corrective work required. 4) Litigation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. If CITY is the prevailing party, CITY shall also be entitled to recover its attorneys fees and costs in any action against DEVELOPER's surety on the bonds provided under paragraph 3 of this Agreement. 15. 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 By: l Andrew C. Russell City Engineer L��l��i77�7 BROOKFIELD Bay Area Holdings LLC, a Delaware limited liability company By: Name: Title: \/ ep By: Name: Title: V. 10 EXHIBIT "A" BOND ESTIMATES [Please See Attached) 1\y1IL RUGGERI-JENSEN•AZAR A. 8, C. D. E. F. G. Notes: 2. ENGINEERS• PLANNERS• SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8308 • HUNTINGTON AT BOULEVARD (N4) CITY OFDUBLIN, CALIFORNIA October 3, 2016 (Onsite Improvements Bond Estimate) Job No. 081076BRlA Page 1 of 3 SUMMARY SITE WORK $ram 000 ASPHALT PAVING $184 940 CONCRETE $2431640 STORM DRAIN $171,650 MISCELLANEOUS $448 000 LANDSCAPE $1,164,200 JOINT TRENCH $346,830 SUBTOTAL = $2,615,4601 10% CONSTRUCTION CONTINGENCY = $261,650 8% ENGINEERING CONTINGENCY = $209,240 TOTAL ESTIMATED OWSITE CONSTRUCTION COST = 3,O36,250 All cost figures are given as estimates only. Actual cost will be dependent on the cost fgures at bidding time; the general market situation, contracto, a work load. seasonal factor, labor and cost, etc. This engineering Finn cannot be responsible for Fluctuations in cost factors. This engineer's opinion is based on the Improvement Plans -Tract 8306 Huntington at Boulevard (N4), prepared by RuggerlJensen-Azar, dated Juty 13, 2016. �� 3. This engineer's opinion does not Include costs for sanitary sewer and water. c1'tarsa+uain�,mwuxrew„vHiatoiseflrx.c+raw� m�ew_wdx. tetaoaw 46g0 CHABOT DRIVE, SUITE 20g, PLEASANTON, CA 94586 T: (925) 227.91001 F; (925) 227.93001 wvNt.rjagps.com 11 RUGGERI•JENSEN-AZAR ENGINEERS • PLANNERS • SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8308 - HUNTINGTON AT BOULEVARD (114) CITY OFDUBLIN, CALIFORNIA (Onsite Improvements Bond Estimate) October 3, 2016 Job No. 081076BRIA Page 2 of 3 ITEM DESCRIPTION QUANTITY UNIT PRICE AMOUNT A. SITE WORK 1. Pad Fine Grading 2. Erosion Control 8 SWPPP Implementation B. ASPHALT PAVING 1. Fine Grading (RW to RW) 2. AC Paving (3"AC 18"AB) C. CONCRETE 1. 6" Curb and Gutter 2. 6" Vertical Curb 3. 3" Mountable Curb and Gutter 4. Flush Curb 5. 3' Valley Gutter 6. Sidewalk (in streets) 7. Curb Ramps 8, Driveways D. STORM DRAIN 1. 12" Class III RCP 2. 15" Class III RCP 3. 18" Class III RCP 4. Connect toExlstngSO 5. Drop Inlets 6, Storm Water Inlets 7. Storm Drain Manhole 8. Area Drain Pipe 9. Area Drain 10. Low Flow Pump 11. 4" Force Main 12. Storm Water Inlet/Drop Inlet Inserts 13, Trash Capture Device 45 EA $800.00 $36,000 1 LS $20,000,00 $20,000 SUBTOTAL = $561000 53,523 SF $0.30 $16,060 42,220 SF $4,00 $168,880 SUBTOTAL = 184,940 625 LF $35.00 $21,880 1,183 LF $25.00 $29,580 619 LF $30.00 $18,570 868 LF $18,00 $15,620 173 LF $25,00 $4,330 4,920 SF $8,00 $39,360 7 EA $3,500,00 $24,500 45 EA $2,000.00 $901000 SUBTOTAL = 243,840 154 LF E. MISCELLANEOUS 1. Signing & Stdping 1 LS 3. Silva Cell 19,700 CF 3. Monuments 4 EA 4. Street Llghls 14 EA $50.00 $7700 171,660 $3,000.00 $3,000 $20.00 $394,000 $500.00 $2,000 $3,500.00 $49,000 SUBTOTAL= 44% 00 O1aC30tltlllOrfiA3VWMn16Onie111np RNf1W`0910i6&4_NI CiyMDAN S1,601_upEY� 1610W fk 4690 CHABOT DRIVE, SUITE 200, PLEASANTON, CA 94588 T: (926) 227.91001 F: (925) 227.930D I www.rJagpa.com �Rji �v RUGGERI-JENSEN•AZAR ENGINEERS PLANNERS ■ SURVEYORS ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS TRACT 8308 - HUNTINGTON AT BOULEVARD (114) CITY OFDUBLIN, CALIFORNIA October 3, 2016 (Onsfte Improvements Bond Estimate) Job No. 081076BR1A Page 3 of 3 REM DESCRIPTION Q ANTITY UNIT PRICE AMOUNT F. LANDSCAPE 1. Pedestrian Concrete Paving 13,250 SF $12.00 $169,000 2. Integral Color Concrete Paving 11775 SF $20,00 $35,500 3. DG Paving 940 SF $8.00 $7,520 4. Concrete Wall with Cap 70 LF $350,00 $24,600 5. Low Wall 1,775 LF $300.00 $532,500 6. Accent Column at Low Wall 90 FA $250,00 $22,500 7. Accent Wall 51 LF $450,00 $22,950 B. 6' Wood Fence 11115 LF $50,00 $55,760 9. Wood Gate 45 EA $500.00 $22,500 10. Fabric Umbrellas 3 EA $15,000.00 $45,000 11. Concrete Step Stones 63B EA $5.00 $3,190 12, Custom Fireplace 1 EA $15,000.00 $15,000 13, Soma Stones 8 EA $2,000.00 $16,000 14. Granite Turtle 9 EA $1,500,00 $13,500 15. Tree Grate and Frame 2 EA $1,500,00 $3,000 16. Park Entry Monuments 1 LS $25,000.00 $25,000 17. Rubber Safety Surfacing 450 SF $20.00 $9,000 18 Play Elements 1 LS $20,000,00 $20,000 19. Tree, 24" Box 89 EA $400,00 $35,600 20. Tree, 15 Gallon 25 EA $300,00 $7,500 21, Shrub, 5 Gallon 11850 EA $17.00 $31,450 22. Shrub, 1 Gallon 11205 EA $10,00 $12,050 23. Mulch 21,828 SF $0,65 $141188 24. Soil Amendment and Preparation 21,828 SF $0,50 $10,914 25. Root Control Binder 11795 LF $9.00 $16,155 26. Landscape Maintenance (120 days) 21,828 SF $0.18 $3,929 SUBTOTAL= $1,164,200 G. JOINT TRENCH 1. Trenching (2,DD0 LF) 1 LS $53,000.00 $53,000 2. Vaults and Splice Boxes (Supply, Install & Excavation) a. PG&E 1 LS $57,905.D0 $57,910 b. Telephone 1 LS $7,020,00 $70020 c. CAN 1 LS $3,600,00 $3,600 3. Conduits -Supply and Install a. PG&E 1 LS $14,000,00 $14,000 b. Telephone 1 LS $10,D00.00 $101000 c. CATV - Installed by CAN 1 LS - 4. PG&E Electrical System 1 LS $109,000,00 - $109,000 5. PG&E Gas System 1 LS $14,000,00 $14,000 6. Street Lighting 1 LS $58,300.00 $581300 7. Service Completions 1 LS $20,000,00 $2010D0 SUBTOTAL = $3461830 o:yoezommtwseava„n�.maaw,vwn+vunatoremzlu.cyama,_suea_,yane tatow a. 4690 CHABOT DRIVE, SUITE 200, PLEASANTON, CA 94588 T: (925) 227.91001 F: (925) 227.93001wvnv.rja•gpa.com