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Home My WebLink About4.2 Positano Fallon Vlg Tr 8083~~~~ Off' nU~~~ /ii ~ 111 L~~ - ~ ~~~ DATE: TO: FROM: STAFF REPORT CITY COUNCIL CITY CLERK File #600-60 December 6, 2011 Honorable Mayor and City Councilmembers ~~ Joni Pattillo, City Manager ° ~' SUBJECT: Approval of Final Map and Tract Improvement Agreement, Approval of Agreement for Long-Term Encroachment Agreement for Landscape Features, and Acceptance of Park Land Dedication In-Lieu Credits for Tract 8083, Neighborhood "D-3", Positano/ Fallon Village (D.R. Horton) Prepared by Mark Lander, City Engineer EXECUTIVE SUMMARY: D. R. Horton, dba D. R. Horton, BAY Inc, is filing a Final Map for Tract 8083, Neighborhood "D-3," to create 70 individual lots. Ultimately the lots will accommodate 81 residential units comprised of 59 lots containing one Single Family Unit each, plus 11 lots which contain one Single Family Unit with an attached Secondary Unit. The Final Map for Tract 8083 dedicates the rights-of-way for Avanti Avenue, Contrada Court, Fortezza Court, Montese Court, and Palazzo Drive as well as a public service easement. FINANCIAL IMPACT: Park Land dedication requirements are proposed to be satisfied with Park Land Credits held by the Developer. Credits are being used to satisfy $781,816 in Community Park Land Fees due. Credits are also being used to satisfy $417,725 in Neighborhood Park Land Fees due. The Developer will construct certain public streets and improvements and will pay the cost of construction inspection. The City requires that Performance and Labor & Materials bonds are posted to guarantee construction of the street, grading, utility improvements and landscaping. Purpose of Bond Bond Number Amount of Bond Tract Improvements 0160499 $ 758,688 Once these improvements are accepted, the City will incur maintenance costs for City- maintained improvements within Tract 8083. Maintenance cost information will be provided at the time of improvement acceptance. The Homeowners' Association will be responsible for maintaining the project-related landscape features within the public right-of-way. Page 1 of 3 ITEM NO. 4.2 RECOMMENDATION: Staff recommends that the City Council take the following actions: 1) Adopt the Resolution Approving Final Map and Tract Improvement Agreement for Tract 8083, Neighborhood "D-3," Positano/Fallon Village; 2) Adopt the Resolution Approving the Agreement for Long Term Encroachment for Landscape Features for Tract 8083, Neighborhood "D-3," Positano/Fallon Village; and 3) Adopt the Resolution Accepting Park Land Dedication In-Lieu Credits for Park Land Dedication Requirements for Tract 8083 D. R. Horton, (Neighborhood "D-3," Positano/Fallon Village). « a Submit ed By Public Works Director DESCRIPTION: ..~ . ~ f Gi~4~l.n ~ i ,..• ,. , Submitted By Administrative Services Director C~ _ .. Reviewed y Assistant City Manager D. R. Horton, dba D. R. Horton, BAY Inc, is filing a Final Map for Tract 8083, Neighborhood "D- 3," to create 70 individual lots. Ultimately the lots will accommodate 81 residential units comprised of 59 lots containing one Single Family Unit each, plus 11 lots which contain one Single Family Unit with an attached Secondary Unit (Attachment 1). The Final Map for Tract 8083 dedicates the rights-of-way for Avanti Avenue, Contrada Court, Fortezza Court, Montese Court, and Palazzo Drive as well as a public service easement. The Final Map for Tract 8083 has been reviewed and found to be in conformance with the Tentative Map and Conditions of Approval adopted by Planning Commission Resolution No. 05-61 on November 22, 2005. The Developer has submitted an executed Tract Improvement Agreement, together with the required Performance and Labor & Material Bonds. The Agreement for Long Term Encroachment for Landscape Features for Tract 8083 provides for the Homeowners' Association to maintain project-related landscape features within the public rights-of-way, including planter strips, sidewalks, and street trees. Staff has prepared a resolution approving the Final Map and Tract Improvement Agreement for Tract 8083, Neighborhood "D-3," Positano/Fallon Village (Attachment 2 and 3), and a resolution approving the Agreement for Long Term Encroachment for Landscape Features for Tract 8083, Neighborhood "D-3," Positano/Fallon Village (Attachment 4 and 5). Parkland Dedication Requirements Pursuant to Dublin Municipal Code Chapter 9.28, a subdivider is required to dedicate park land or pay a fee in lieu of dedicating such land as a condition of final map approval. D. R. Horton has acquired credits for both Community and Neighborhood Park Land dedication requirements. The credits will fully offset its park dedication requirement. The following table shows how D.R. Horton will satisfy the Park Land requirements for Tract 8083: Dedication Fees In-Lieu of D.R. Horton Requirement Dedication Compliance Page 2 of 3 Community Park Land 0.8610 acres $781,816. Use of Credits Acquired Neighborhood Park Land 0.3690 acres $417,725 Use of Credits Acquired The calculation of the acreage required and/or in-lieu fees are determined in accordance with City of Dublin Municipal Code Chapter 9.28. Staff has prepared a Resolution which outlines the requirements and indicates how D. R. Horton will achieve compliance (Attachment 6). NOTICING REQUIREMENTS/PUBLIC OUTREACH: Public noticing occurred as part of the Tentative Map process. Approval of the Final Map is affirmation of the Final Map's concurrence with the approved Tentative Map. Copies of this report have been provided to D. R. Horton. ATTACHMENTS: 1. Reduced Copy of Final Tract Map 8083 2. Resolution Approving Final Map and Tract Improvement Agreement for Tract 8083, Neighborhood "D-3," Positano/Fallon Village 3. Exhibit "A" to Resolution, Tract Improvement Agreement 4. Resolution Approving the Agreement for Long Term Encroachment for Landscape Features for Tract 8083, Neighborhood "D-3," Positano/Fallon Village 5. Exhibit "A" to Resolution, Long Term Encroachment Agreement 6. Resolution Accepting the Parkland Dedication In-Lieu Fees and Credits for Park Land Dedication Requirements for Tract 8083, D. R. 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X g 'c ~ ,~ ~ I ~• g I o. g a ~ ~g ~~ ` •. ~.~' Nz'n'+,•~ 7a.ao• .ae•zo~ 3.aa.ecax k R y ~"J ^ a .(~ ~ ~ ° xr•oa~n k .~ ,~. ~ .c ~,~,n„N ~.aa' f N Mj4,6T 28~ ~ .~• ~ y y ~ i 5 .~ _J ~ ~}~ ~ i ~'- R ~ ~ ® § RESOLUTION NO. - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING FINAL MAP AND TRACT IMPROVEMENT AGREEMENT FOR TRACT 8083, NEIGHBORHOOD D-3, POSITANO/ FALCON VILLAGE WHEREAS, the Final Map for Tract 8083, in the incorporated territory of the City of Dublin, State of California, has been presented to this City Council for approval, all in accordance with provisions of the Subdivision Map Act of the State of California and the City of Dublin Municipal Code; and WHEREAS, the Developer, D. R. Horton, BAY Inc., has executed and filed with the City of Dublin a Tract Improvement Agreement for Tract 8083 to improve required subdivision improvements in accordance with the Conditions of Approval for the Tentative Map, and with the improvement plans attached thereto; and WHEREAS, said Tract Improvement Agreement is secured by bonds furnished by The Berkeley Regional Insurance Company in the amount of $758,688 for the in-tract improvements (Bond No. 0160499), conditioned upon faithful performance of said Agreement; and WHEREAS, said Tract Improvement Agreement is secured by bonds furnished by the Berkeley Regional Insurance Company in the amount of $758,688 for the in-tract improvements (Bond No. 0160499), conditioned upon payment for labor performed or material furnished under the terms of said Agreement; NOW, THEREFORE, BE IT RESOLVED that said agreement and bonds are hereby approved. BE IT FURTHER RESOLVED that the City Manager of the City of Dublin is hereby authorized to execute said Tract Improvement Agreement, attached hereto as Exhibit "A." BE IT FURTHER RESOLVED that the Final Map of Tract 8083 be and the same is hereby approved, and that rights to the areas marked as Avanti Drive, Contrada Court, Fortezza Court, Montese Court and Palazzo Drive and Public Service Easement (PSE), offered for dedication to public use in conformity with the terms of dedication be, and they are hereby accepted, subject to improvement, and that the Clerk of this City Council is hereby directed to transmit said Map to the County Recorder for filing. 1 PASSED, APPROVED AND ADOPTED this 6th day of December, 2011 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor G:\DEVELOPMENT, PRIVATE\Fallon Village (EDPO)\Tract 8083 - D.R. Horton (D3) - Cortona II\Reso FM 8083.doc 2 CITY OF DUBLIN IMPROVEMENT AGREEMENT Tract 8083, Neighborhood "D-3", Positano/ Fallon Village This agreement is made and entered into this 6th day of December, 2011, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and D. R. Horton BAY, 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 8083, also known as Positano/ Fallon Village Neighborhood "D-3", desires to improve and dedicate those public improvements (hereafter "The Improvements") in accordance with the requirements and conditions set forth in the City of Dublin Planning Commission Resolution No. 05-61 (PA 05-038), adopted on November 22, 2005, and City Council Resolution No. 223-05, adopted on December 6, 2005 ;the requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance of the CITY, and those certain plan and specifications for said development approved by the City Engineer, as follows: • "Improvement Plans, Tract 8081, 8082, and 8083 -Fallon Village Neighborhoods D-1, D-2, and D-3" (22 Sheets, Sheets 1-22), prepared by MacKay and Somps, Inc, approved June 24, 2011. • "Rough Grading Plan, Fallon Village Tract 8081, 8082, and 8083, Neighborhoods D1, D2, D3"(14 Sheets, Sheets 1-14), prepared by MacKay and Somps, Inc., approved May 17, 2011 • "Joint Trench Composite, Braddock & Logan Tract 8081, 8082, and 8083 -Fallon Village Neighborhoods D1, D2, and D3, (11 Sheets, Sheets JT1-JT11), prepared by Giacalone utility Design and Planning, approved September 16, 2011. • "Street Lighting, Braddock & Logan Tract 8081, 8082, and 8083 -Fallon Village Neighborhoods D1, D2, and D3, (10 Sheets, Sheets SL1-SL10), prepared by Giacalone Utility Design and Planning, approved September 16, 2011 • "Cortona 11 Landscape Plans'; prepared by Gates and Associates, subject to review and approval by the City. • "Wall, Fencing, and Trail Plans, Tract 7586 -Fallon Village, Neighborhood D1, D2, and D3" (26 Sheets, Sheets L0.1-L3.2), prepared by Gates and Associates, dated October 2011, or as it may be approved by the City. 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; and WHEREAS, CITY has determined that The Improvements are a public works subject to California prevailing wage requirements: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: 1. Completion Time. DEVELOPER will commence construction of The Improvements within thirty (30) days following the date on which CITY executes this agreement. DEVELOPER shall complete said work not later than two years following said date of execution of this agreement, unless the completion date is extended by the City Council. 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 is agreed to be as presented in the Bond Estimate -Fallon Village -Neighborhood D3, dated October 28, 2011 prepared by MacKay & Somps ($758,688), and within the limits shown on the Fallon Village Neighborhood D1, D2, and D3 - Positano (Tracts 8081, 8082, 8083, and 8096) Final Map and Bonding Key, attached to this agreement as Exhibits "A" and "B". 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. 2 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 to the provisions of Chapter 5 of the Subdivision Map Act. 3. Insurance Required. Prior to commencing construction of the improvements, DEVELOPER shall obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph 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 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. 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. ) than: 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. DEVELOPER shall maintain limits no less 1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General 3 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, 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 Coverages. a) The CITY, its officers, agents, officials, employees and volunteers shall be named as additional insureds as respects: liability arising out of activities performed by or on behalf of the DEVELOPER; products and completed operations of the DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hired or borrowed by the DEVELOPER. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. b) The DEVELOPER's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees or volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. d) The DEVELOPER's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2) Workers' Compensation and Employers Liability Coverage. 4 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 Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. a) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. b) Verification of Coverage. DEVELOPER shall furnish CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the CITY before work commences. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. c) Subcontractors. DEVELOPER and/or DEVELOPER's general contractor shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4. 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 [HOLD]to insure that such defects have actually been corrected. 5 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. 5. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its City Engineer and designated representative for the safe and convenient inspection of the 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. 6. Agreement Assignment. This Agreement shall not be assigned by DEVELOPER without the written consent of CITY, which shall not be unreasonably withheld, denied, or delayed. 7. 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 City Engineer may serve written 6 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: Mark Lander, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 (925)-833-6630 Notices required to be given to DEVELOPER shall be addressed as follows: Dean K. Mills, Assistant Vice President D. R. Horton BAY, Inc. 6630 Owens Drive Pleasanton, CA 94588 (925)-225-7400 Notices required to be given surety of DEVELOPER shall be addressed as follows: Peggy Ginem Assistant Vice President Willis of Florida 3000 Bayport Drive #300 Tampa, FL 33607 (813)-281-2095 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. 7 8. 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. 9. 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. 10. 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. 11. 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. 12. Alterations in Plans and Saecifications. 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 8 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. 13. 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 [STAYS], 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. 3) 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. [STAYS] 4) Litigation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. If CITY is the prevailing party, CITY shall also be entitled to recover its attorney's fees and costs in any action against DEVELOPER's surety on the bonds provided under paragraph 3. 9 14. Recitals. The foregoing Recitals are true and correct and are made a part hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year first above written. CITY OF DUBLIN By: Joni Pattillo, City Manager ATTEST: City Clerk DEVELOPER D. R. Horton BAY, Inc By: Print Name Title G\DEVELOPMENT, PRIVATE\Fallon Village (EDPO)\Tract 8083 - D.R. Horton (D8) - Cortona II\Tract 8083 improvement agmt.doc 10 RESOLUTION NO. - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8083, NEIGHBORHOOD D-3 POSITANO/ FALCON VILLAGE WHEREAS, a Vesting Tentative Map for Tract 7586 for Fallon Village was approved by Planning Commission Resolution 05-61 on November 22, 2005, with Conditions of Approval; and WHEREAS, said Conditions of Approval required the developer to construct project- related landscape features within the public rights-of-ways; and WHEREAS, said Conditions of Approval required the developer to enter into an "Agreement for Long-Term Encroachment" for the maintenance of the landscape features; and WHEREAS, the developer has executed and filed with the City of Dublin a Tract Improvement Agreement to improve required Tract improvements, including said landscape features; and WHEREAS, the developer has executed and filed with the City of Dublin an Agreement for Long Term Encroachment for Landscape Features with Tract 8083, Neighborhood D-3, Positano/ Fallon Village, attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED that said Agreement is hereby approved. BE IT FURTHER RESOLVED that the City Manager is hereby authorized by the City Council to execute the Agreement. BE IT FURTHER RESOLVED that the Clerk of this City Council is hereby directed to transmit said Agreement to the County Recorder for filing. PASSED, APPROVED AND ADOPTED this 6th day of December, 2011, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk Recording Requested BST: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94_568 Fee Waived per° CTC' 27383 AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8083, FALCON VILLAGE/ POSITANO -NEIGHBORHOOD D-3 THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8083 ("Agreement") is made between the City of Dublin ("City") and D. R. Horton BAY, Inc ("Owner"). 1. Property: The subject property is Tract 8083 as filed in Book of Maps at Pages , in the Official Records of the County of Alameda, State of California. 2. Developer: Owner is the owner of Tract 8083, Fallon Village/ Positano Neighborhood D-3 , ("Project"). 3. Landscape Features: Owner, as part of the Project, anticipates the constriction of Project related landscape features within the City's rights of ways on the following streets in Tract 8083: Avanti Avenue, Contrada Court, Fortezza Court, Montese Court, and Palazzo Drive (collectively, the "Landscape Features"). Constriction details for these Landscape Features are shown on the Landscape Plans for Tract 8083, Cortona II prepared by Gates and Associates, approved by the City. The scope of the improvements covered under the agreement is shown on the attached Exhibit A. 4. Encroachment Permit: Owners shall apply to the City for an encroachment pernut for work to be performed pursuant to this Agreement. The City must grant the encroachment pernut for all work to install, operate and maintain the Landscape Features improvements and all the conditions imposed by the City must be consistent with the provisions of this Agreement. If there is a conflict between any provisions of this Agreement and the encroachment pernut, the provisions of this Agreement shall prevail over the conditions of the encroachment pernut. 5. Ownership: Owners shall own all special Landscape Features, including but not limited to fountains, arches, monuments, etc. 6. Operations and Maintenance: Owners shall maintain and repair all the Landscape improvements, including all frontage and island landscape plantings, irrigation, and sidewallcs within the designated areas, in a safe manner consistent with the approved plans to the reasonable satisfaction of the City at its sole cost and expense, including electric power and water cost. Owner will be responsible at its sole cost to replace or repair any Landscape Feature damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Service District or utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Service District or utility company. The City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, drainage improvements, traffic signs and striping, and streetlights and any other features in the public right of way. 7. Removal or Relocation: If fiiture improvements proposed by the City conflict with any of the Landscape Features, the City may remove or reasonably relocate the Landscape Feature at its sole cost. If any of the Landscape Features are relocated, the City and Owners will execute a modification to this Agreement to reflect the maintenance and operations at its new location. Provided, however, the City is under no obligation to relocate any of the Landscape Features. 8. Insurance: Owners shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one nullion dollars ($1,000,000) covering the Landscape Features improvements and shall name the City as an additional insured. 9. Indemnification: Owners shall indemnify, defend and hold the City harniless from and against any and all loss, claims, liability damage or expense or cost the City may incur or become liable for or for which a claim is made by a third party, due to or arising out of Owner's constriction, maintenance or operations of the Landscape Features unless caused by the negligence, gross negligence or willful nsconduct of the City, its agents, contractors or employees. 10. Permanent: The Landscape Feature and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity, and are appurtenant to the Property. 11. Right to Assign: Owners may assign any or all rights, interests and obligations of Owners arising under this Agreement to the Homeowners' Association for Tract 8083 or to a successor in interest of Owners with respect to all or a portion of the Project; provided, however, that no such assignment of Owners' rights interests and obligations under this Agreement shall occur without prior written notice to the City and written approval by the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. The City Manager shall consider and decide on any assignment within ten (10) days after Owner's notice 2 thereof, provided all necessary documents and other information are provided to the City Manager to enable the City Manager to assess the assignment. 12. Successors and Assigns: Each reference to the "City" in this Agreement shall be deemed to refer to and include the City and all successors and assigns of City. All references to the "Owner" in this Agreement shall be deemed to refer to and include D. R. Horton BAY, Inc and all successors and assigns D. R. Horton BAY, Inc including but not limited to the Tract 8083 Home Owner's Association. 13. Notices: Any notices, requests, demands or other communications required or pernutted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if delivered personally to the party to whom notice is to be given (including messenger or recognized delivery or courier service) or on the second day after mailing, if mailed to the party to whom notice is to be given, by first-class mail, postage prepaid, and properly addressed as follows: City: City of Dublin 100 Civic Plaza Dublin, California 94568 Fax No. (925) 833-6651 Attn: City Manager Dean K Mills, Assistant Vice President D. R. Horton BAY, Inc. 6630 Owens Drive Pleasanton, CA 94588 (925)-225-7400 14. Exhibits: All exhibits attached to this Agreement are incorporated herein as though they were set forth in fiill body of this Agreement. 15. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in fiill force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and econonuc effect of the invalid or unenforceable provision. 16. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instalment. Dated this day of , 2011. CITY: THE CITY OF DUBLIN, a municipal corporation By: Joni Pattillo City Manager OWNERS: D. R. Horton BAY, Inc By: Dean K Mills Authorized Representative 4 RESOLUTION NO. - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ACCEPTING PARK LAND DEDICATION IN-LIEU FEES AND CREDITS FOR PARK LAND DEDICATION REQUIREMENTS FOR TRACT 8083, D. R. HORTON (NEIGHBORHOOD D-3, POSITANO /FALCON VILLAGE) WHEREAS, pursuant to City of Dublin Municipal Code Chapter 9.28, each subdivider of land for residential uses shall, as a Condition of Approval of a Final Subdivision Map, dedicate or reserve lands, pay fees in lieu thereof, or a combination of both, for park and/or recreational purposes; and WHEREAS, the Developer, D. R. Horton, BAY Inc., a California Limited Liability Company (K.Hovnanian), is filing Tract 8083 Final Map for developing 81 residential dwelling units constructed on 70 lots (59 lots contain one Single Family Unit each; plus 11 lots contain one Single Family Unit each with an attached Secondary Unit); and WHEREAS, the Park Land requirements for the project based on the requirements of the Municipal Code and the designated land use for Tract 8083 are 1) Dedication of 0.8610 acres of Community Park Land or payment of $781,816 in Community Park Land In-Lieu Fees, and 2) Dedication of 0.3690 acres Neighborhood Park Land or payment of $417,725 in Neighborhood Parkland In-Lieu Fees; and WHEREAS, Developer has possession of credits for 0.8610 acres of Community Park Land credits, which the Developer desires to have applied to fully satisfy the Community Park Land obligation for Tract 8083; and WHEREAS, Developer has possession of credits for 0.3690 acres of Neighborhood Park Land credits, which the Developer desires to have applied to fully satisfy the Neighborhood Park Land obligation for Tract 8083; and NOW, THEREFORE, BE IT RESOLVED that the aforesaid the application of 0.8610 acres Community Parkland Credits and the application of 0.3690 acres of Neighborhood Park Land Credits are hereby accepted as performance of said subdivider's obligation under Subdivision Requirements in Chapter 9.28 of the Dublin Municipal Code. PASSED, APPROVED AND ADOPTED this 6th day of December, 2011, by the following vote: AYES: NOES: ABSENT: 1 ABSTAIN: Mayor ATTEST: City Clerk G:\DEVELOPMENT, PRIVATE\Fallon Village (EDPO)\Tract 8083 - D.R. Horton (D3) - Cortona II\Reso_parkland dedicationTr 8083.doc