HomeMy WebLinkAbout4.08 TDA DubRchTr7136 CITY CLERK
File #J
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 16, 2004
SUBJECT: Second Amendment to Tract Developer Agreements for Public
Street Improvements and Public Landscape Improvements, Tract
7136 (Dublin Ranch Area A-1 by Toll Brothers, Inc.)
Report Prepared by: Melissa Morton, Public IVorks Director
ATTACItMENTS: 1) Resolution Amending Tract Developer Agreement for
Public Street Improvements associated with Tract 7136,
together with Exhibit "A" of Resolution
2) Resolution Amending Tract Developer Agreement for
Public Landscape Improvements associated with Tract 7136,
together with Exhibit "A" of Resolution
3) Original Tract Developer Agreement with Toll Brothers for
Public Street Improx~ements for Tract 7136
4) Original Tract Developer Agreement with Toll Brothers for
Public Landscape Improvements for Tract 7136
.5) Location Map
~dt(~ AdoPt Resolutions extending the completion date of the Tract
RECOMMENDATION:
Developer Agreements for Tract 7136 one additional year, or until
March 19, 2005
FINANCIAL STATEMENT: .Toll Brothers has provided Performance Bonds and Labor and
Materials Bonds to guarantee construction of public right-of-Way
improvements and landscaping, and will pay the cost of the
associated construction inspection.
DESCRIPTION: On March 19, 2002, the City Council, via Resolution No. 32-02,
authorized the Mayor to execute two Tract Developer Agreements with Toll Brothers for public street
improvements and for public landscape improvements associated with Dublin Ranch, Neighborhood A-1
(Tract 7136), a subdivision located, west of Fallon Road in Dublin Ranch, Area A. The Agreements
allowed the developer 365 calendar days to complete the improvements. The City Council subsequently
amended the Agreements, via Resolution Nos. 44-03 and 45-03 respectively, to extend the completion
date to March 19, 2004.
Although the improvements are nearing completion in accordance with the approved plans and
specifications, certain improvements' will not be finished prior to the expiration date on March 19, 2004.
........................... · . ...................................
COPIES TO: H. Jon Paynter, Toll Brothers
[t>~ 2-- ITEM NO. ~
G:~DEVELOP\Dublin RanchXArea A~-I Tract 7136\agst 2nd amend tda Tr 7136.doc
Specifically, the ongoing construction of houses is Preventing the Developer from installing necessary
signs, pavement markings, decorative crosswalks and common landscaping to allow the streets and
sidewalks to be completed and: opened to the public. Toll Brothers has thus requested a second
amendment to the governing Tract Developer Agreements to extend the completion date by one additional
year to allow time for completion of the remaining work.
Staff has determined that it is in the best interest of the City to extend the completion time specified in the
amended Agreements. The improvements will continue to be guaranteed by the 'original Performance
Bonds and Labor and Materials Bonds, and the Developer's insurance will remain in effect as required by
the original Agreements.
Staff recommends that the City Council adopt the Resolutions approving the second amendment to the
Tract Developer Agreements for Tract 7136, extending the completion date one additional year, or until
March 19, 2005.
Page 2
RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING SECOND AMENDMENT TO THE TRACT DEVELOPER AGREEMENT FOR
PUBLIC STREET IMPROVEMENTS ASSOCIATED WITH TRACT 7136
(DUBLIN RANCH AREA A-1 BY TOLL BROTHERS, INC.)
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll Brothers, Inc.
(hereinafter referred to as "DEVELOPER"), entered into a Tract Developer Agreement for public street
improvements (hereinafter referred to as "AGREEMENT',) on March 19, 2002; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 365 days following the date of execution; and
WHEREAS, the AGREEMENT was amended via City Council Resolution No. 44-03 to extend the
completion date to March 19, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend
the completion date by an additional 365 days or until March 19, 2005 to allow the DEVELOPER time to
complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the AGREEMENT
by one year, or until March 19, 2005; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth in
'the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect;
NOW, THEREFORE, BE IT RESOLVED that the second amendment (attached hereto as Exhibit
"A" of this ResolUtion) to the Tract Developer Agreement for Tract 7136 is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute Exhibit "A".
PASSED, APPROVED AND ADOPTED this 16th day of March, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: Mayor
G:kDEVELOPNDublin RanchkArea AKA-1 Tract 7136keso 2nd amend tda Vr 7136 street.doc ~/~
EXlqTBIT."A" OF
RESOLUTION NO.. -04
A RESOLUTION OF T~E CITY COUNCIL. OF TItE CITY OF D~L~ "
SECO~. ~~NT TO T~CT DE,LOPER AG~E~NT FOR P~LIC S~ET
BE~EN CITY OF D~L~ ~ TOLL. ~ROT~RS, ~C..
W~AS, ~e CiW of Dublin' Cereina~er refe~ed ta as "C~"). ~d Toll Brothers, ~c.
(hereina~er refe~ed to. as "DE,LOPER"), entered into ~ Tract Developer A~eement for public s~eet
i~prbvements Cereinaffer refe~ed to. as"'AG~E~") on March 19. 2002;. ~d
~~AS, Section 1 of said AG~E~ states that the DE~LOPER shall complete all
improvemmts governed by ~e AG~E~ not later ~ 365 ~ys follo~g. ~e date. of the execution; and
. W~AS,. ~e AG~ME~ was amended ~a ciw co,cji Resolution No. ~-0.3 to:extend
the e~ompletion date to M~eh 19,. 2004; and
~~AS, ~e DE,LOPER has requested a second men~ent m the AG~E~ to
extend ~e co~lefion date By an ad~tional 365 days.or ~til March 19,. 2005 to. allow the DE,LOPER time. to
complete ~e. remaining work;. ~d
~~AS,. it is in ~he best interest of ~e C~ to extend the completion date. of ~e
~~AS,. ~is ~en&uent h~eby inco~orams ~y reference all ~em~ and condition, set fo~h
in the AG~E~, ~d all te~s and conditions which ~e not specifically mottled by ~s ~en~t shall
remain in full force ~d e~ect; and
NOW, ~~PO~, ~e p~ies hereto a~ee as follows: -
Completion ~e for ~e ~provement work governed bg ~e AG~E~. is hergby ext~ded
365 days. or ~til M~ch 19,: 2005.
ATTEST:. Mayor.
Toli'Brothers, Inc..
CALIIFORN. IiA A[.L'-PU. RPOSE: ACK'N:OW'LEDGMEi~IT " State Of Cal[fomia. ~ '
Name
.. ~pe~snatty known to me
~ proved to me on the basis of safisfaCto~
evidence
to be the person¢) whose n~me(~ is/~e
subscribed to the 'within instrument a~d
ac~nowleSged to me: that ~e/s~/t~y ~xecuted
-the ..s~e i~' hi-~r/~ir
capacity¢'~),, and that by Ms/~r/f~e~r
-~¢:='='=---~&:F~;&{~~~.EsAE,MA E LMA~ S gnat~re(~
.~~% COMMiSSION¢~26~74~~ the .entity. uppn'b~half of whbh the person(¢
.. ~~) ~OTAR~ PUSUC- CAUF0amA = acted~ executed the instrument,
2k~/CO.~RA C OSTA COUNTY;
~tTN~SS my hand and'
Pl~ce N~W Seal ~ove . _ . · . Si~tum
OPtiONAL
Though ¢Me inflation ~/ow is no~ mqu/red by fa~ f~ may prove vafuabf¢ to pe~ons .~eJyin~ on ~he docume~
and could p~vent ~asdulen~ removal and ~aEachmen~ 0¢ this form ~o anofher dodu~n~.
Description 0¢A~ched Document
.Title or Type of Document:
Ddcument Bate: Number of Pages':
"Sign~r(~) O~er Tha~ Nam~ ~0ve:
Capaci~y(ies) Claimed by Signer
Signer's Name:
~ individual
~ Corporate OfficSr'~ TLtle(s): Top of thumb hare
~ Pa~er ~ ~ Limited ~ General . .
~ A~omey in Fa~
~' Trustee .-
~ Guardian or Conse~ator
~ Other:
Sigher'ts Representing:.
RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING SECOND AMENDMENT TO THE TRACT DEVELOPER AGREEMENT FOR
PUBLIC LANDSCAPE IMPROVEMENTS ASSOCIATED WITH TRACT 7136
(DUBLIN RANCH AREA A-1 BY TOLL BROTHERS, INC.)
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll Brothers, Inc.
(hereinafter referred to as "DEVELOPER"), entered into a Tract Developer Agreement for public landscape
improvements (hereinafter referred to as "AGREEMENT") on March 19, 2002; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 365 days following the date of execution; arid
WHEREAS, the AGREEMENT was amended via City Council Resolution No. 45-03 to extend the
completion date to March 19, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend
the completion date by an additional 365 days or until March 19, 2005 to allow the DEVELOPER time to
complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of the AGREEMENT
by one year, or until March 19, 2005; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth in
the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment shall
remain in full force and effect;
NOW, THEREFORE, BE IT RESOLVED that this second amendment (attached hereto as Exhibit
"A'" of this Resolution) to the Tract Developer Agreement for Tract 7136 is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute Exhibit "A".
PASSED, APPROVED AND ADOPTED this 16th day of March, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: Mayor
City Clerk
G:kDEVELOPkDublin RanchkArea ALA-1 Tract 7136kreso 2nd amend tda Tr 7136 landscape.doc ~A¢'~{ ·
E~HIBIT "A' OF
RESOLUTION NO. - -04
A RESOLUTION OF ~ CITY COUNCIL
OF THE CITY OF DUBLIN
SECOND AMENDMENT TO TRACT DEVELOPER AGREEMENT FOR PUBLIC LANDSCAPE
IMPROVEMENTS ASSOCIATED WITH TRACT 7136 (DUBLIN RANCH AREA A-l)
BETWEEN CITY OF DUBLIN AND TOLL BROTheRS, INC.
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll Brothers, Inc.
(hereinafter referred to as "DEVELOPER"), entered into an Tract Developer Agreement for public landscape
· "AGREEMENT ) on March 19, 2002; and
improvements (hereinafter referred to as ' '
wHEREAs, Section 1 of said AGREEMENT states that the DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 365 days followin, g the date of the execution; and
WHEREAS, the AGREEMENT was amended via City Council Resolution No. 45-03 to extend
the completion date to March 19, 2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to
extend the completion date by an additional 365 days or until March 19, 2005 to allow the DEVELOPER time to
Complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date of 'the
AGREEMENT; and
WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth
in the AGREEMENT, and all terms and conditions which are not specifically modified by this Amendment .shall
remain in full force and effect; and
NOW, TFIEREFORE, the parties hereto agree as follows:
Completion time for the improvement work governed by the AGREEMENT is hereby extended
365 days or until March 19, 2005.
CITY OF DUBLIN
ATTEST: Mayor
Toll Broth~
City Clerk
Signatur ._____~/J
Print Name:
Title:
Date:
state o~ Cal~omi~' -'
' ~anally kn&wn to m~
· ~ proved to me on ,the ~asis of satis~cto~
evidence
.- to be the pemon~whose name~is/~
' -~----~&~¢'--i sUbScribed to the within instrument and
~~ Oo~mm ¢442~1 .~. acknowledgsd to me:that he~y executed
i~ ~P~C.-CO~ ~ ~he sa'me in his~ 'authorized
]~~" Co~oC~aCo~ '~' capacity~, and ~ha{. b~ his~
~ ~ .... MyC~m'Ex~s~16'2~Tr~_ __--__~ . signat~(~ ~fi{he i'nstmme~t the perso~, Or
the .enttty upon beh'alf'.of~h~ch the person~
acted, exbcuted the ins~ument.
'' ~t~S my hand ~a] Seek ~ -
' Place .Nom~ Se~ ~ove . '. ~ Signa~m'~f Not~P~tic '
OPTtO~AL
Though the infome~on below is not require~ by ta~ ~ my prove 'vat~abt; to pe~on~ ~iying on ~e document
and coutd pmve~ ~udutent ~mo~l and roa~achment of thi. ~ 'to another dobu~nt.
Description of A. aohed D~u~. ...
Title ~r Type of ~cumene ; ~ ~
D6oument Date: ~'~ ~ ~ 0'~ Nu~er of Pages:
"signer(~) O~sr Than ~ame~ Above:
Capaci~(i~S) Claimed by Signer
S~gner's Name:
~ Individual-
Top off.mb here'
~' Co~orace Officer'~
~ Pa~er ~ D Limited ~ General
~ Guardian or 'Conse~ator
~ Other:
ign~r Is Representing:..
N~lio~ N~ ~s~flon * 9~0 ~ S~o Ave., P.D~ B~ 2402. ~a~, OA 9131~ - ~.ha~on~lnotg~.o~ Pmk. ~. 5907 ReoPen
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this \"qday of'~/.~AFC~, 2002, by and
between the CITY of Dublin, a municipal corporation,, hereinafter referred to as "CITY", and
Toll Brothers, Inc. hereinafter referred to as "DEVELOPER".
RECITALS
WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State
of California, that DEVELOPER, the subdivider of Tract Map 71'36 desires to improve and
dedicate those public street improvements (hereafter "The Improvements") required by City of
Dublin Planning Commission Resolution No, 00-37 adopted., on July 25th,' 2000. in
accordance with the requirements and conditions set forth in said resolution, the
· requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance
of the CITY, and those certain plans and sPecifications for said development approved by
CITY on May4, 2001 for street Improvement Plans of Dublin Ranch Area A-l, Tract 7136
submitted by Mackay & Somps, and now on file in the office of the Pdblic works DirectodCity
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 DEVELO.PER's offer(s) of
dedication of The Improvements in consideration for DEVELOPER's .satisfactory performance
of the terms and conditions of this Agreement:
NOW, THEREFORE, in consideration of the mutual promises, conditions' and.
covenants herein contained, the parties agree as follows:.
1.' Completion Time.
DEVELOPER will commence construction of The Improvements within ni'hety (90)
days following the date on which CITY executes this Agreement. DEVELOPER shall
complete said work not later than one year following said date of execution: Time is of the
essence 'in this Agreement. Upon completion, DEVELOPER shall furnish CITY with a
complete and reproducible set of final as-bUilt plans of The Improvements, including any
authorized modifications.
)
2. Estimated Cost of Improvements.
The estimated cost of constructing The Improvements required by this agreement as
adjusted for inflation is agreed to: be $2,887,560. Said amount includes costs .and reasonable
expenses and fees which may be incurred in enforcing the obligation secured.
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 per cent (100%) of the
estimate set forth in Paragraph 2 and sUfficient to assure ClTY'that The Improvements will be
satisfaCtorily completed.
B. LabOr and Materials. Either a cash deposit, a corporate surety-bond issued
by a company dulY and legally licensed to conduct a general surety business in the State' of
California, or an instrument of credit equivalent to one-hundred per cent (50%) of the
estimate set forth in Paragraph 2 and sufficient to'assure CITY that DEVELOPER'S
contraotors, subcontractors, and other persons furnishing labor, materials, or equipment shall
be paid therefor.
C.'lf required .by CITY, a cash deposit, corporate surety .bond, or instrument of
credit sufficient to assure CITY that the surface water drainage of the subdivision shall not
interfere with the use of neighboring property, including public streetS and highways.
CITY shall be .the sole.indemnitee named on any instrument required by this
Agreement. Any instrument or deposit required herein shall conform with the provisions of
Chapter 5 of the Subdivision Map' Act.
4. Insurance Required.
Concurrently with the execution hereof, DEVELOPER shall obtain or cause to be
obtained and filed with the CITY, all insurance required under this paragraph, 'and such
insurance.shall, have been 'apProved by the Administrative Services Director of CITY, or his
designee, as to form, amount and carrier. Prior to the commencement of work under this
Agreement, DEVELOPER's general contractor shall obtain or cause to be' obtained and filed
with the Administrative Services Directo¢, all insurance required under this paragraph, and
such insurance shall have been approved by the Administrative Services Director of CITY,' as
to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to
commence work on this contract 'or subcontract until all insurance required for DEVELOPER
and DEVELOPER's general contractor shall have been so obtained and approved. Said'
insurance shall be maintained in full force and effect until the completion of work under this
Agreement and the final acceptance thereof by' CITY. All requirements herein provided shall
appear either in the body of the insurance polici.es or as endorsements and shall specifically
bind the insurance carrier.
G:~,DEVELOP~Dublin Ranch~,reas A-E'A-I TraCt 7136'~tmct 7136 tractdevagr.doc '. - 2
A. Minimum Scope of Insurance. Coverage shall be at least as broad' as:
1) Insurance Services Office form number GL 0002 (.Ed. 1/73) ~overing
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" fo~'rn
CG 0001 .)
2) Insurance Services Office form number CA 0001 (Ed. 1./78) co)/ering'
Automobile Liability, code 1 "any auto" and endorsement CA 0025..,
3) W0rkers'.Compensation insurance as required by the Labor Code.of the
State of California and Employers Liability Insurance.-
B. Minimum Limits of Insurance. DEVELOPER shall maintain limits no less
than:
1) General Liability: $1,000,000 combined single limit per occurrence for
bodily injury; personal injury and property damage. If commercial General
Liability Insurance .or other form with a. general aggregate limit is used, either
the general aggregate limit shall .apply separately to this project/location Or the
general aggregate limit shall be. twice the required occurrenf~e limit.
2) Automobile Liability: $1,000,000 combined singJe'limit per accident..for
bodily injury and property damage.
3) Workers' Compensation and EmplOyers Liability: 'Workers'
compensation' limits as required by the Labor Code of the State of California
and Employers Liability limits Of $1,000,000 per accident.
C. Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the CITY. At. the option of the
CITY, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its officers, officials and employees; or the
DEVELOPER shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and. defense expenses.
D. Other InSurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1) General Liability and Automobile Liability Covera,q%.
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
G;\DEVELOP~Dublin Rar~ch~Areas A-E~-'[ Tract 7136~,tract 7.136 tract~Jevagr, doc 3
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 Covera.qe.
The' insurer shall agree to waive all rights of subrogation against the
CITY, its officers, officials, 'employees and volunteers for losses arising from
work performed by the DEVELOPER for the CITY.
3) Ali Covera.qes.
Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, cancelled by either party, reduCed in
coverage or in limits except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the CITY.
a) Acceptability of Insurers. insurance is to be placed with insurers
with a Bests' rating of no less than A:Vll.
b) Verification of 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 ali
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.
G:\DEVELOF~Dublin Ranch~reas A-E~4 Tract 7136~tract 7136 tractde, vagr. doc 4
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 ail
supplies, materials and devices of'Whatsoever nature incorporated in, or attached to the
work, or otherWise delivered to CITY as a part of the work pursuant to the Agreement, to be
free of all defects'of workmanship and materials for a period of one (1) year after initial
acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all such
Work or material, together with all or any other work or materials which may be displaced or
damaged in so doing, that may prove defective in workmanship or material within said one-
year guarantee period without expense or charge of any nature whatsoever to CITY.
DEVELOPER further covenants and agrees that when defects in design, workmanship and
materials actually appear during the one-year guarantee period; and have been-corrected,
the guarantee period shall automatically .be extended for an additional year to insure that
such defects have actually been corrected.
in the event the DEVELOPER shall fail to' comply with the conditions of the foregoing
guarantee within thirty (30) days time, after being notified of the defect in writing, CITY shall
have the right,' but shall not be obligated, to repair or obtain the repair of the defect, and
DEVELOPER shall pay to CITY on demand all costs and expense of such repair.
Notwithstanding anything herein to the contrary, in the event that any defect in workmanship
or material covered by the foregoing guarantee results in a condition which constitutes an
immediate hazard to the public health, safety, or welfare, CITY shall have the~right to
immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY
on demand all costs and expense of such repair. The foregoing statement relating to
hazards to health and safety shall be deemed to include either temporary .or permanent
repairs which may be reeuired 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, fif[y percent (50%) of such costs and expenses
for overhead and interest at the maximum rate of interest permitled 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 Public Works
DirectodCity Engineer and his designated representative for the safe and convenient'
inspection or.the work throughout its construction. Said CITY representative shall have the
'authority to reject all materials and workmanship which are not in accordance with the plans
and specifications, and all such materials and Or work shall be removed promptly by
DEVELOPER and replaced to the-satisfaction of CITY without any e.xpense to CITY in Strict
accordance with the improvement plans and specifications.
G:\DEVELOP~Dubtin Rartch~Areas A-EIA-1 Tact 7136'tract 7136 tractdevagr.doc 5
7. Agreement Assianment.
This Agreemenl shall not be assigned by DEVELOPER without the written, consent of
8. Abandonment of Work.
Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be
considered to be agents of CITY in connection with the-performance of DEVELOPER's
obligations under this Agreement.
· If DEVELOPER refuses or fails to obtain prosecution, of the work, or any'severable
part. thereof, with such diligence as will insure its completion within the time specified, or any
extension thereof, or fails to obtain completion of said work within such time, or if
DEVELOPER should .be adjudged as bankrupt,' or should make a general assignment for the
'benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER,
or any' of DEVELOPER's contractors, subcontractors, agents, or employees should violate
any of' the provisions of this Agreement, 'the CITY through its Pubiic Works Director may
serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of
breach of this Agreement, or of any portion, thereof, and default of DEVELOPER.
In the event of any such notice of breach of this Agreement, i DEVELOPER's surety
shall have the duty to take over and complete The Improvements herein specified; provided,
however, that if the surety, within thirty (30) days after the serving upon it of such notice of
breach, does not give CITY written notice of its intention to take over the performance of the
contract, and does not commence performance thereof within thirty (30) days after notice to
CiTY of such election, .CITY may take over the work and prosecute the same to comPletiOn,
by contract or by any other method CITY may deem advisable, for the account and at the
expense of DEVELOPER and DEVELOPER'S s_urety 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 i'n completing.
the work, such materials, appliances, plant and other property belonging to DEVELOPER as
may be on the site of the work and necessary therefor.
All notices herein required shall be in writing, and delivered in person or sent by
registered mail, postage prepaid'.
Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin .
t O0 Civic Plaza - .
Dublin, CA 94568 -
Notices required to be given to DEVELOPER shall be addressed as follows:
'G:~EVELOP'~Dublin Ranch~reas A~-I Tract 7136\tract 7136.tractdevagr. doc 6
r
Toll Brothers, lnc
100 Park Place, Suite I40
San Ramon, CA 94583
Notices required to be given surety of DEVELOPER shall be' addressed as follows:
Toll Brothers, Inc.
I00 Park Place, Suite 140
san Ramon, CA 94583
Any party or the surety may change such addreSs by notice in writing, to the other party
and thereafter notices shall be addressed and transmitted to the new address.
Concurrently with the execution of this Agreement, DEVELOPER has executed and
has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CITY
may record said' abstract in the Official Records of Alameda County.
9. Use of Streets or Improvements.
At all times prior to the final acceptance of the work by CITY, the use of any or all
streets and improvements within the work to be performed under,this Agreement shall be at
the sole and exclusive risk of DEVELOPER. The issuance of any building or o. ccupancy
permit by OITY for dwellings located within the tract 'shall not be constrUed in any manner to
constitute a partial or final acceptance or approval of any or all such imProvements by CITY.
DEVELOPER agreeS that CITY's Building Official .maY withhold the issuance-of building or
occupancy permits when the work or its progress may substantially and/or detrimentally
affect public health and safety.
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 the tract site as
'may be necessary to prevent accidents to the public and damage to the property.
DEVELOPER shall furnish, place, and maintain such lights as may be necessary for
illuminating the said fences, barriers, signs, and other.safety devices. At the end of all.work
to be performed under this Agreement, all fences, barriers, regulatory signs, warning lights,'
'and other safety devices (except such safety items as may be shown .on. the plans and
included in the items of work) shall be removed from site of the work by the DEVELOPER,
and the entire site left clean and orderly.
11. AcceptanCe of Work.
Upon r~otice of the completion.of all 'tract work and the delivery of a set of final as-built
plans to CITY by DEVELOPER, CITY, through its City Engineer or his designated
representative, shall examine the tract work without delay, and, if found to be in accordance
with said plans and specifications and this Agreement, shall recommend acceptance of the
work to the City Council and, upon such acceptance; shall notify DEVELOPER or his
designated 'agents of such acceptance.
G:\DEVELOP\Dublin RanchWeas A-BA-1 Tract 7136\tract 7136 tmctdevagr, d0c 7
12. Patent and Co[~vrk~ht 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.
Any alteration or alterations 'made in the plans and specifications which are a part of
this Agreement-or any provision of this Agreement shall' not operate to release any surety or
sureties from liability on any bond or bonds attached hereto and made a part hereof, and
consent to make such alterations is hereby given, and the suretieS, to said bonds hereby.
waive the provisions of SectiOn 2819 of the Civil Code of the State of California.
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 will be' performed 'in a proper manner.
DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and
each of its elective and appointive boards, commissions, officers agents and
employees, from and against any and all loss, claims, suits, liabilities, 'actions,.
damages, or causes of action of every kind, nature and description, directly or
indirectly arising from an act or omission of DEVELOPER, its employees, agents, or
indePendent contractors 'in connection .with DEVELOPER'S actions-and obligations
hereunder; provided as' follows:
1) That CiTY does not, a-nd 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, oralleged
to have been suffered, bY reason of any of the aforesaid operations referred to
in this. paragraph', regardless of whether or not CITY has prepared, supplied, or
approved of plans and/or specifications for the subdivision, or regardless of
whether or not such insurance policies shall have 'been determined to be
applicable to any of such damages or claims for damages.
G:\DEVELOP~ublin Ranch'C, reas A-E~A-1 Tract 7136\tract 7136 tractdevagr.doc 8
Design Defect. if, .in the opinion of the CITY, a design.defect in the work of
improvement becomes apparent .during the course of construction, or within, one (1) year
following acceptance by the CITY of the improvements, and said design defect, in the qpinion
of the CITY, may sUbstantially impair the public health and safety, DEVELOPER shall, upon
Order by the CITY, correct said design defect at his sole cost and expense, and the sureties
under the Faithful Performance and Labor and Materials Bonds shall be liable to the CITY for
the corrective work required.
3) 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.. !f 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.
15. Recitals.
The foregoing Recitals are true and correct and are made a part hereof.
IN WITNESS WHEREOF, tl~e parties hereto 'have executed this Agreement in
duplicate at Dublin, California, the day and'year first above written.
CITY OF DUBLIN
ATTEST:
DEVELOPER
Type or Print Name
Type Or Print Name .. ~ ~'!~ic-califom~. ~
..... ""~ ~' .. ;.::~,:~ cou~, . ~
G:~EVELOP~Dubli~ Ran~maS A-~=I T$~ 7t36~ 7136 ~evagr. doc ~ ~ ~ ~ ~ ~ ~ ~ ~ --~'~'~ ~ ' 9
CAL]FORNIA ALI.-PURPOSE. ACI(NOW~.EDGMENT
State of California
County of ~,~. w~
On ~ -- ~Date "~ before me, ~ . Ntme and ~tle of O~er (e.g,, "Jane Doe, No~W Public") ....
personally appeared '~ ¢~ ~ ¢~¢ - ,
' ' ' ' ~ Name(s) of Signet(s)
~ personally known to me
D proved to me .on the basis of satisfactow'
evidence
to be the person(s) whose name(s) is/are
,,-~,~'~,~ subscribed to the within instrument and
N~D O~LUC~ ~ acknowledged to me that he/she/they executed
~~ Noto~Publfc~Cot~f~b ~ the same in his/her/their authorized
,~ ~~ ' ~cm~o'C~Jnfy ~ capaci~(ies), and that by his/hedtheir
~~m.~~ ~,~ ~ signature(s) on the instrument the person(s), or
~~~~,~ the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNE~~~fficial seal.
Place ~Om~ Seal Above OPTION ;" '- ~ ~" Signat~ of Nomw Public '
Though the info.at/on be/ow .is no~ requim~ by law, .it may prove valuable to persons relying on the document
and could p~vent fraudulent removal and rea~achment of this fo~ to another document.
Description of A~ached Docum~
~tle or Type of D~cument:
Document Date: ~ ~ ~ Number of Pages:
signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Sig nets Name: ~ '~ ,~J~ ~ ......
~ Individual -
~ Corporate O~cer-- ~tle(s>: ~ d .P To~ ofthumb nero
~' PaKner ~ ~ Limited ~ General
~ A~orney in Fact
~ .Trustee
~ Guardian or Conse~ator
~ Other:
Signer Is Representing: ~..~ i
1997 National Nota~ As~oia~on - 9350 De ~to ~., RO, Box 2402 · Cha~wo~, CA 91313-2402 Pr~. No. 5~7 ReoPen Call Toll-Free 1-~76~827
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this'~'~-l?L'day of*' --1¼¢,t.Td/~,, 2002, by and
between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and
Toll Brothers, Inc. hereinafter referred to as "DEVELOPER".
RECITALS
WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State
of California, that DEVELOPER, the subdivider of Tract Map 7136 desires to improve and
dedicate those public landscape improvements (hereafter 'q'he Improvements") required by
City of Dublin Planning Commission Resolution No. 00-37 adopted on July 25th, 2000 in
accordance with the requirements and conditions set forth in said resolution, the
requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance
of the CITY, and those certain plans and specifications for said development approved by
CITY on May 5, 2001 for landscape Improvement Plans of Dublin Ranch Area A-l, Tract
7136 submitted by Mackay & Somps, and now on file in the office of the Public Works
Director/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 offer(s) of
dedication of The Improvements in consideration for DEVELOPER's satisfactory performance
of the terms and conditions of this Agreement:
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants herein contained, the parties agree as follows:
1. Completion Time.
DEVELOPER will commence construction of The Improvements within ninety (90)
days following, the date on which CITY executes this Agreement. DEVELOPER shall
complete said work not later than one year following said date of execution, Time is of the
essence in this Agreement. Upon completion, DEVELOPER shall furnish CITY with a
complete and reproducible set of final as-built plans of The Improvements, including any
authorized modifications.
G:\DEVELOP~Dublin Ranch~Areas A-E~A-1 Tract 7136\tract 7136 landscape
2. Estimated Cost of Improvements.
The estimated cost of constructing The Improvements required by this agreement as
adjusted for inflation is agreed to be' $1,094,300. Said amount includes costs and reasonable
expenses and fees which may be incurred in enforcing the obligation secured.
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 per cent (100%) of the
estimate set forth in Paragraph 2 and sufficient.to assure CITY that The Improvements will be
satisfactorily completed.
B. Labor and Materials. Either a cash deposit, a corporate surety bond issued
by a company duly and legally licensed to.conduct a general surety business in the State of
California, or an instrument of credit equivalent to one-hundred per cent (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.
C. If required by CITY, a cash deposit, corporate surety bond, or instrument of
credit sufficient to assure CITY that the surface water drainage of the subdivision shall not
interfere With the use of neighboring property, including public streets and highways.
CiTY shall be the'sole indemnitee named on any instrument required by this
Agreement. Any instrument or deposit required herein shall conform with the provisions of
Chapter 5 of the Subdivision Map Act.
4. Insurance ~equired..
Concurrently with the execution hereof, DEVELOPER shall obtain or cause to be
obtained and filed with the CITY, all insurance required under this paragraph, and such
insurance shall have been approved by the Administrative Services Director of CITY, or his
designee, as to form, amount and carrier. Prior to the commencement of work under this
Agreement, DEVELOPER's general contractor shall obtain or cause t° be obtained and filed
with the Administrative Services Director, all insurance required under this paragraph, 'and
such insUrance shall have been approved, by the Administrative Services Director of CITY, as
to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to
commence work on this contract or subcontract until all insurance required for DEVELOPER
and DEVELOPER'S general contractor shall have been so' obtained and approved: Said
insurance shall be maintained in full force and effect until the completion'of work under-this
Agreement and the final acceptance thereof by CITY. All require, ments herein provided shall
appear either in the body of the insurance policies or as endorsements and 'shall specifically
bind the insurance carrier.
G:\DEVEL:OP\Dublin Rsnch~Areas A-E~A-I Tract 7136~tract 7136 landscaoe ffactdevagr, doc 2
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) Insurance Services Office form number GL 0002 (Ed. 1/73) covering
comprehensive General Liability and Insurance Services Office form number
GL 0404 covedng Broad Form Comprehensive General Liability; or In'surance
Services Office'Commercial General Liability coverage ("occurrence" form
CG 0001.)
2) I'nsurance Services Office form number CA 0001 (Ed.. 1/78) covering
Automobile Liabitity, code 1 "any auto" and endorsement CA 0025.
3) Workers' COmpensation insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
B. Minimum Limits of'-Insurance. DEVELOPER shall maintain limits .no less
than:
1) General Liabii.ity~ $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage. If commercial General
Liability Insurance or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to this project/location or the
general aggregate limit .shall be twice the required occurrence limit..
2) Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
3) Workers' COmpensation and Employers Liability: Workers'
compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of. S1,00Q,000 per accident.
C. Deductibles and Self-insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the CITY. At the option of the
CITY, either the insurer shall reduce or eliminate such deductibles or. self-insured
retentions as. respects the CITY, its officers, officials and employees; or the
DEVELOPER shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1) General Liability and Automobile Liability Coveraqes.
a) The CITY, its officers, agents, officials, employees and volunteers
shall be named as additional insureds 'as respects: liability arising
out of activities performed by o.r 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
\~DUBLINFS2~PW~DEVELOP~Bublin Ranch~Areas A.E~A-1 Tract 7136\tract 7136 landscape tractdevagr, aoc 3
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 Covera.qe.
The insurer shall agree to waive all dghts of subrogation against the
CITY, its officers, officials, employees and volUnteers for losses arising from
work performed by the DEVELOPER for the CITY.
3) All Coveraqes.
Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, cancelled by either party, reduced in
coverage or in limits except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given tothe CITY.
a) Acceptability of Insurers; Insurance is to be placed with insurers
with a Bests' rating of no less than A:VII.
b) Verification of Coveraqe. DEVELOPER shall furnish CITY with
certificates of insurance and. with original endorsements 'effecting
'coverage required 'by this clause. The'certificates and
endorsements for each insurance policy are to be signed by a
person authorized by that insurer to bind Coverage on its behalf.
The certificates and endorsements are to be received and
approved bY the CITY before work commences. The CITY
reserves the right to require complete, certified copies of all
required, inSurance policies, at any time.
c) .Subcontractors. DEVELOPER and/or DEVELOPER's general
contractor shall include all subcontractors as insureds under its
policies or shall obtain separate certificates and endorsements for
\~DUBLINFS2PW~DEVELOP\Dublin Ranch~Areas A-E~A-I Tract 7136\tract 7136 landscape tractdevagr, doc 4
each subcontractor. Ail .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
work,, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be
free of all defects of workmanship and materials for a period of one (1) year after initial
acceptance of the entire work by cITY. DEVELOPER shall repair or replace any or all such
work or material, together with all or any other work or materials which may be displaced or
damaged in so doing, that may prove defective in workmanship or material within said one-
year guarantee pedod without expense .or charge of any nature whatsoever to CITY.
DEVELOPER further covenants and agrees that when defects in design, workmanship and
materials .actually appear during the one-year guarantee period, and have been corrected,
the guarantee period shall automatically be extended for an additional year to insure that
such defects have actually been corrected.
In the event the DEVELOPER shall fail to comply with the conditions of the foregoing
guarantee within thirty (30) days time, after being notified of the defect in writing,. CITY shall
have the right, but shall not be obligated, to repair or obtain the repair of the defect, and
DEVELOPER .shall pay to CITY on demand all costs and expense of such repair.
Notwithstanding anything herein to the contrary, in the event that any defect in workmanship
or material covered by the foregoing guarantee results in a condition which constif~utes 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, fifty percent (50%) of such costs and expenses
for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30)
days from the date of billing for such work or repairs.
6. Inspection of the Work.
DEVELOPER shall guarantee free access to CITY through its Public Works
DirectodCity Engineer and his designated representative for the safe. and convenient
inspection of the work throughou( 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 improvemen~ plans and specifications.
\\DU@LINFS2\PWtDEVELOP\Dublin Ranch~,rea$ A-DA-1 Tract 7136\tract 7136 landscape tractdevagr, oec 5
7. Agreement Assiqnment.
This Agreement shall not be assigned by DEVELOPER without the written consent of
CITY.
8. Abandonment of Work.
Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be
considered to be agents of CiTY in connection with the performance of DEVELOPER's
obligations under this Agreement.
If DEVELOPER refuses or fails to obtain prosecution of the work, or any severable
part thereof, with such diligence as will insure its completion within the time specified, or any
extension thereof, or fails to obtain completion of said work within such time, or if
DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the
benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER,
or any' of DEVELOPER's contractors, subcontractors, agents or employees should violate
any of the provisions of this Agreement, the CITY through its Public Works Directoi' may
serve written notice on DEVELOPER and DEVELOPER's surety or holder of other secudty of
breach of this Agreement, or of any portion, thereof, and default of DEVELOPER.
In the event of any such notice of breach of this Agreement, DEVELOPER's surety
shall have the duty to take over and complete The Improvements herein specified; provided,
however, that if the surety, within thirty (30) days after the serving upon it of such notice of
breach, does not give CITY wdtten notice of its intention to take over the performance of the
contract, and does not commence performance thereof within thirty (30) days after notice to
CITY of such election, CITY may take over the work and prosecute the same to completion,
by contract or by any other method CITY may deem advisable, for the account and at-the
expense of DEVELOPER and DEVELOPER's surety shall be liable to CITY for any damages
and/or reasonable and documented excess costs occasioned by CITY thereby; and, in such
event, CITY, without liability for so doing, may take. possession of, and utilize in completing
the work, such materials, appliances, plant.and other property belonging to DEVELOPER as
may be on the site of the work and necessary therefor.
All notices herein required shall be in wdting, and delivered in person or sent by
registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Notices, required to be given to DEVELOPER shall be addressed as follows:
\~DUBLINFS2\PW\DEVELOP\DubIin Ranch~Areas A-E~A-1 Tract 7136\tract 7136 tandscaDe tmctdevagr, doc 6
Toll-Brothers, Inc
100 Park Place, Suite 140
San Ramon, CA 94583
Notices required to be given surety of DEVELOPER shall, be addressed as follows:
Toll Brothers, Inc.
100 Park Place, Suite 140
San Ramon, CA 94583
Any party or the surety may change such address by notice in writing to the other party
and thereafter notices shall be addressed and transmitted to the new address.
Concurrently with the execution of this Agreement, DEVELOPER has executed and
has caused to .be acknowledged an abstract of this Agreement.. DEVELOPER agrees CITY.
may record said abstract in the Official Records of Alameda County.
9. Use of Streets or Improvements.
At all times prior to the final acceptance of the work by CITY, the u~e of any or all
streets and improvements within the work to be performed under this Agreement shall be at
the sole and exclusive risk of DEVELOPER. The issuance of any building or occdpancy
permit by CITY for dwellings located within the tract shall not be construed in any manner to
constitute-a partial or final acceptance or approval of any or all such improvements by. CITY.
DEVELOPER agrees that CITY's Building Official may.withhold the issuance of building or
occupancy 'permits when the work or its progress may. substantially and/or detrimentally
affect public health and safety.
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 the tract site as
may be necessary to prevent accidents to the public and damage to the property.
DEVELOPER shall furnish, place, and maintain such. lights as may be necessary for
illuminating the said fences, barriers, signs, and other' safety devices. At the end of all work
to be performed under this Agreement, .all fences, barriers, regulatory signs, warning lights,
and other safety devices (except such safety items as may be shown on. the plans and
included in the items of work) shall be removed from site of the work by the DEVELOPER,'
and the entire site left clean and ordedy.
11. Acceptance of Work.
Upon notice of the completion of all tract work and the delivery of a set Of final as-built
plans to CITY 'by DEVELOPER, CITY, through its City Engineer or his designated
representative, shall examine the tract work without delay, and, if'found to be in accordance
with said plans and specifications and this Agreement, shall recommend acceptance of the
work to the City Council and, upon such acceptance, shall notify DEVELOPER or his
designated agents of such acceptance.
\\DUBLtNFS2\PVC, DEVELOP\Dublin Ranch~Areas A.E~A-1 Tract 7136\tract 7136 landsca[~e tractdevagr, doc 7
12. Patent and'Copyd.qht 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 ihdemnify CITY ~rom 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.
Any'alteration or alterations made in the plans and specifications which are a part of
this Agreement or any provision of this Agreement shall, not operate to release any surety or
sureties from liability on any bond or bonds attached hereto and made a part hereof, and
consent to make such alterations is hereby given, and the sureties to said bonds hereby
waive the'provisions of Section 2819 of the Civil Code of the State of California.
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 will be performed in a proper manner.
DEVELOPER agrees to indemnify, defend, release, and save harmless' CITY, and
each of its elective and appointive ~.boards, commissions, officers agents and
employees, from and against any and all loss, claims, suits, liabilities, actions,
damages, or causes of action of every kind, nature and description, directly or
indirectly arising from an act or omission of DEVELOPER, its employees, agents, or
independent contractors in connection with DEVELOPER'S actions and obligations
hereunder; provided aS follows:
1) That CITY does not, and shall not, waive any rights against
DEVELOPER which it may have by reason of the aforesaid hold harmless
agreement, because of the acceptance by CITY, or the deposit with CITY by
DEVELOPER, of any of the insurance policies described in Paragraph 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 no~ CITY has prepared, supplied, or
approved of plans and/Or specifications for the subdivision, or regardless of
whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
\\DUBLINFS2\PW\DEVELOP\Dubtir~ Ranch~Areas A-E~A-I Tract 7136\tract 7136 landscape tractdevsgr, aoc 8
Desi.qn. Defect. If, in the opinion of' the CITY, a design defect in the work of
improvement becomes apparent dudng 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 publi.c health and safetY, DEVELOPER shall, upon
order by the CITY, correct said design defect at his sole cost and expense, and the sureties
under the Faithful Performance-and Labor and Materials Bonds shall be liable to the CITY for
the corrective work-required.
3) 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, i'n 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.
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 wdtten.
CITY OF DUBLIN
/Mayor
ATTEST:
' -CITY Clerk
DEVELOPER
Toll Brothers, Inc.
13y~ "
Type or Print' Name
Type or Print Name
~DUBLINFS2~PW~DEVELOP~Dublin Ranc~mas A-~-I Tm~ 7136~ 7136 land~pe ~devagndoc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 7¢~- L t/t"t~c't- ¢'~'~ / ss.
-Date N{me and Utl~f O~cer te.g., "Jane Doe. Notaw PubliC)
personally appeared .~1~ '~1~q ~ ~ ,
Name(s) of Signer(s)
,~,~ ~ ~ personally known to me
~ ~~'"'~ ::~ ~C~ ~ ~ proved to me on the basis of satisfacto~
~ ~:~ ~'~'. :.:~'~318 ~ evidence
;~ ~;;;¢7 ,:,;;:¥..,,~:<~r:co~n~'t [ to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(les), and that by his/her/their
~ ~;?~ ¢;c;:~',,.;<';;* ~-' ' ] .~[ signature(s) on the instrument the person(s), or
~- ~t~ ...... ~0 . the entity upon behalf of which the person(s)
~ acted, executed the instrument.
WITNESS my hand and official seal.
Place Notar~ Seal Above Public
OPT~O~ignamre of Notaw
Though the info~ation below is not requimd by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and rea~achment of this form to another document.
Description of Attached Document ~.~
Title or Type of Document: ~C~ ~,~o ~"~ ~
r
Document Date: ' ~,,~(~ ~¢ Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed b~
~ Individual
d
.O
Top
of thumb
here
~ Corporate O~cer- Title(s): ~ ~
~ Pa~ner ~ Limited ~ General
~ Attorney in Fa~
~ Trustee
~ Guardian or Conse~ator
~ Other:
Signer Is Representing: ~O ~ ~ fO~ ~ ~
~mional ~ota~ Association · ~350 ~ 8oto ~ve., ~.O. ~ox 2402 · Gha~wo~, GA ~3-2402 ~md. ~o. 5007 R~rdor: Call ~olt-Fm~ %800-87~.~827