HomeMy WebLinkAbout4.07 TDA PM7714 ACSPA CI'TY CLERK FILE # 600-60
AGENDA STATEMENT
CTTY COUNCTL PlEETTNG DATE: 3une 4,, 2002
SUBJECT: Approval of New Tract Developer Agreement for Final Parcel Map
7714, Alameda County Surplus Property Authority
Report Prepared by: Lee $. Thompson, Public l/Vorks Director
ATTACHMENTS: 1) Resolution Approving new Tract Developer Agreement for Final
Parcel Map 7714
2) New Tract Developer Agreement for Final Parcel Map 7714'
3) Existing Tract Developer Agreement for Parcel Map 7714
4) Final Map 7714
RECOMMENDATION: Adopt the resolution approving a new Tract Developer Agreement
/~,d P~ with Alameda County Surplus Property Authority as replacement for
· the existing agreement for Final Parcel Map 7714
FINANCIAL STATEMENT: The current landowner is providing bonds in amounts sufficient to
guarantee the construction of streets, grading, landscaping and utility
improvements, and will pay the cost of construction inspection.
Once these improvements have been constructed and accepted,
the City will incur maintenance costs for the City-maintained
improvements.
DESCRIPTION: Final Parcel Map 7714 is located in Eastern Dublin south of Dublin
Boulevard at the northwesterly comer of Hacienda Drive and Interstate 1-580, and is a Master Final Map
comprised of two parcels: Parcel 1 is zoned for future campus office (formerly the site of Cisco Systems),
and Parcel 2, also currently zoned for future campus office (formerly the approved site of Commerce
One).
Final Parcel Map 7714 was approved by the City Council on June 5th, 2001, and included the dedication
of a proposed new east-west street between Hacienda Drive and Arnold Road ("Digital Drive"), and the
extension of Arnold Road from Dublin Boulevard to the western boundary of Parcel Map 7714 at
Interstate 1-580, as well as storm drain, sewer, sidewalk and traffic signal easements to serve these two
large parcels. Improvement plans for public streets and utility imprOvements and the Final Parcel Map
COPIES TO: Pat Cashman, ACSPA
Commerce One
ITEM NO. __~
G:\develop\commerce one\agst7714
have been reviewed and found to be in conformance with the Tentative Parcel Map and Conditions of
Approval.
Commerce One Corporation, as optionee on the property, and Alameda County Surplus Property
Authority, as owner, had previously executed a Tract Developer Agreement, provided bonds, and
constructed part of the required public improvements. Due to a change in market conditions, Commerce
One Corporation has decided not to develop its corporate campus offices on the site and has requested to
be removed from its improvement obligation. The Alameda County Surplus Project Authority (ACSPA)
wishes for the City to approve the public storm drain improvements that have been constructed and to
replace the existing Tract Developer Agreement by executing a new Tract Developer Agreement for the
remaining public improvements conditioned on Final Parcel Map 7714.
The ACSPA has provided a cash bond for the street public improvements of the extension of Arnold
Road and Digital Drive, which should take about a year to construct; however, the ACSPA would like
to delay the start of construction until a developer can be found for one of the two vacant parcels. These
improvements are also necessary for the development of the proposed Transit Center project surrounding
the existing BART station. The proposed new Tract Developer Agreement would require completion of
the improvements within two years, and supersedes and replaces the existing agreement. Upon execution
of the new agreement, Commerce One Corporation will have no further obligations.
Staff recommends that the City Council adopt the resolution approving a new Tract Developer Agreement
with Alameda County .Surplus Property Authority as replacement for the existing agreement for Final
Parcel Map 7714.
-2-
RESOLUTION NO. - 02
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING NEW TRACT DEVELOPER AGREEMENT FOR PARCEL MAP 7714
(Alameda County Surplus Authority)
WHEREAS, the Final Parcel Map for Parcel 7714, in the incorporated territory of the City of Dublin,
State of California, was approved by City Council on June 5th, 2001 (Resolution 01- 01), all in accordance
with provisions of thc Subdivision Map Act of the State of California and City of Dublin Municipal Code; and
· WHEREAS, the Developer, Commerce One, Inc., and thc Alameda County Surplus Property
Authority have executed and filed with the City of Dublin a contract to construct the improvements required
by Final Parcel Map 7714 in accordance with Conditions of Approval for Final Parcel Map 7714; and
WHEREAS, the Alameda County Surplus Property Authority now wishes for the City to accept the
completed storm drain improvements, and replace the existing Tract Developer Agreement with a Tract
Developer Agreement between the City and the landowner, Alameda County Surplus PrOject Authority; and
WHEREAS, the current landowner, Alameda County Surplus Authority, has executed and filed with
the City of Dublin a new Agreement to improve all offsite improvements for Digital Drive and Arnold Road
in accordance with the Conditions of Approval for Final Parcel Map 7714, of which the Parcel improvement
plans and specifications are attached thereto; and
WHEREAS, said agreement is secured by cash payment to a City of Dublin escrow account to
insure the satisfactory construction of all required public improvements. Required improvements include:
construction of Digital Drive and extension of Arnold Road, sidewalk frontage improvements to DUblin
Boulevard and Hacienda Drive, of which $2,567,800 for said improvements is conditi.oned upon faithful
performance of said contract; and $2,567,800 for said improvements is conditioned for the benefit of laborers
and materials upon the work and improvements, conditioned upon payment for labor performed and/or
material furnished under thc terms of said contract;
NOW, THEREFORE, BE IT RESOLVED that said agreement and bond amoUnts be and they are
hereby, approved.
PASSED, APPROVED AND ADOPTED this 4th day of JUne, 2002.
AYES:
-NOES:
ABSENT:
ABSTAIN:
ATTEST: Mayor
City
Clerk
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this day of June, 2002, by and
between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY",
and Inc. and Alameda County Surplus Property Authority 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 sub divider of Final Parcel Map 7714 desires to improve
and dedicate those public improvements (hereafter "The Improvements") required by City of
Dublin Planning Commission Resolution No. 01-02 adopted on April 15, 2001, 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 April 6, 2001 for Arnold Road and Digital Drive Improvements submitted by Brian
Kangas Foulk, 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 three
hundred sixty-five (365) days following the date on which CITY executes this Agreement.
DEVELOPER shall complete said work not later than twenty four (24) months 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.
Page 1 of 10
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,$$7,800. 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 obtain or cause
to be obtained and 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 indemnity 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 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 requirements herein provided shall
appear either in the body of the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
Page 2 of 10 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 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 I "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. The insurance carried by the 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 occurrence limit.
2) Automobile Liability: $1,000,000 combined single limit per accident for '
bodily injury and property damage.
3) Workers' Compensation and Employers Liability: Workers'
compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of $1,000,000 per accident.
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 Coverage.
a) The CITY, its officers, agents, officials, employees and volunteers
shall be' named as additional insured 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
Page 3 of 10 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 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 CITYo
3) All Coveragesw
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 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
Page 4 of 10 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 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 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 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
Director/City Engineer and his designated representative, after reasonable notice, for the safe
'and convenient inspection of the work throughout its construction. Said CITY representative
shall have the authority to reject all materials and workmanship which are not in accordance
with the plans and specifications, and all such materials and or work shall be removed
promptly by DEVELOPER and replaced to the satisfaction of CITY without any expense to
CITY in strict accordance with the improvement plans and specifications.
Page 5 of 10 5
7. Agreement Assignment.
This Agreement 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 Public 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, 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 surety shall be liable to CITY for any damages
and/or reasonable and documented excess costs occasioned by CITY thereby; and, in such
event, CITY, without liability for so doing, may take possession of, and utilize in completing
the work, such materials, appliances, plant and other property belonging to DEVELOPER as
may be on the site of the work and necessary therefor.
All notices herein required shall be in writing, and delivered in person or sent by
registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
City Manager
100 Civic Plaza
City of Dublin
Dublin, CA 94568
Notices required to be given to DEVELOPER shall be addressed as follows:
Alameda County Surplus Authority c/o Pat Cashman
224 W. Winton Avenue, Room 110,
Hayward, CA. 94544-1215
Page 6 of 10 6
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,issuaqce of any building or occupancy
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 customary for such work adjacent
to and on the tract site as may be reasonably necessary and customary for such work.
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 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.
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.
Page 7 of 10 7
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 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.
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 opinion 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. If CITY is the prevailing
Page 8 of 10 8
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.
16. Supersedes Prior Tract Developer Agreement.
This agreement supersedes the agreement entitled "City of Dublin Tract Developer
Agreement" which was entered into on June 5, 2001, between the City of Dublin,
Commerce One, Inc. and Alameda County Surplus Property Authority with reference
to Final Parcel Map 7714.
Page 9 of 10 9
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:
Mayor
ATTEST:
CITY Clerk
DEVELOPER
Alameda County Surplus Property Authority
,.,.~,p.~o.r Print Njame / .~ //.. '-'"
Pnnn ~lFi nflFI ~n
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this ay of June, 2001, by and
between the CITY of Dublin, a municipal oorporation, hereinafter referred-to as "CITY", and
Commeroe One, Ino. and Alameda County Surplus Proper~¥ Authority 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 Final Parcel Map 7714 desires to improve
and dedicate those public improvements (hereafter "The Improvements") required by City of
Dublin Planning Commission Resolution No. 01-02 adopted on April lSth, 2001 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 April 6, 2001 for Arnold Road and Digital Drive Improvements submitted by Brian
Kangas Foulk, 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:
I Completion Time.
DEVELOPER or the DEVELOPER's contractor's 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 twenty four (24) months
following said date of exeCution, subject to customary force majeure delays. Time is of the
essence in this Agreement. Upon completion, DEVELOPER shall furnish CITY with a
Edmplete and reproducible set of final as-built plans of The Improvements, including any
authorized modifications.
2. Estimated Cost of Improvements.
The estimated c°St of constructing The Improvements required by this agreement as
adjusted for .inflation is agreed to be $2,924,026. 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 obtain or cause
to be obtained and 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 onehundred 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 Required.
Concurrently with the execution hereof, DEVELOPER or DEVELOPER's general
contractor 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 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
Page 2 of 10 2
acceptance thereof by CITY. All requirements herein provided shall appear either in the body
of the insurance policies or as endorsements and shall specifically bind the insurance carrier.
A. Minimum Scope of Insurance. Coverage shall be at Least as broad as:
1) Insurance Services Office form number GL 0002 (Ed. 1/73) covering
comprehensive General Liability and Insurance Services Office form number
GL 0404 covering Broad Form Comprehensive General Liability; or Insurance
Services Office Commercial General Liability coverage ("occurrence" form
CG 0001 .)
2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering
Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3) Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
B. Minimum Limits of Insurance. The insurance carried by the DEVELOPER or
the DEVELOPER's contractor 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 occurrence limit.
2) Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
3) Workers' Compensation and Employers Liability: Workers'
compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of $1,000,000 per accident.
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 or on behalf of the DEVELOPER;
Page 3 of 10 3
products and completed operations of the DEV. ELOPE :~;
premises owned, occupied or used by the DEVELOPE R; or
automobiles owned, leased, hired or borrowed by the
DEVELOPER. The coverage shall contain no special imitations
on the scope of the protection afforded to the CITY, it.~ officers,
officials, employees or volunteers.
b) The DEVELOPER's or the DEVELOPER's contractor'., insurance
coverage shall be primary insurance as respects the C TY, 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 or the DEVELQPER's contractor'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.
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 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 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
Page 4 of 10 4
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
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.
DEVELOPBR 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 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, fifteen percent (15%) 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.
Page 5 of 10 5
DEVELOPER shall guarantee free access to CITY through its Public works
Director/City Engineer and his designated repreSentative, after reasonable notice, for the safe
and conVenient inspection of the work throughout its construction. Said CITY representative
shall have the authority to reject all materials and workmanship which are not in accordance
with the plans and specifications, and all such materials and or work shall be removed
promptly by DEVELOPER and replaced to the satisfaction of CITY without any expense to
CITY in strict accordance with the improvement plans and specifications.
7. A.qreement 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 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, 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 surety shall be liable to CITY for any damages
and/or reasonable and documented excess costs occasioned by CITY thereby; and, in such
event, CITY, without liability for so doing, may take possession of, and utilize in completing
the work, such materials, appliances, plant and other property belonging to DEVELOPER as
may be on the site of the work and necessary therefor.
All notices herein required shall be in writing, and delivered in person or sent by
registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
Page 6 of 10 6
City Manager
100 Civic Plaza
City of Dublin
Dublin, CA 94568
Notices required to be given to DEVELOPER shall be addressed as follows:
Commerce One, Inc
4440 Rosewood Drive
Pleasanton, CA 94588
Attn: Director of Real Estate and to:
Alameda County Surplus Authority c/o Pat Cashman
224 W. Winton Avenue, Room 110,
Hayward, CA. 94544-1215
Notices required to be given surety of DEVELOPER shall be addressed as follows:
Commerce One, Inc
4440 Rosewood Drive
Pleasanton, CA 94588
Attn: Director of Real Estate with a copy to:
South Bay Construction
511 Division Street
Campbell, California 95008
Attn: Michelle Green
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 o.f 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 occupancy
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.
Page 7 of 10 7
10. Safety Devices.
DEVELOPER or DEVELOPER' general contractor shall provide and maintain such
guards, Watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices
customary for such work adjacent to and on the tract site as may be reasonably necessary
and customary for such work. 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 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.
12. Patent and Copvri.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 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
Page 8 of 10 8
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 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.
Page 9 of 10 9
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 opinion
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. 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 written.
DEVELOPER
Commerce One. Inc.
By~
Peter Pervere
Sr. Vice President and Chief Financial Officer
Alameda _County Surp. l.~s Property A~ltho. rity
By: Ado~h Martinel i
Director of Community Development
Page10 of 10 10
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