HomeMy WebLinkAbout4.06 Amend Developer Agree Tract 4978 RESOLUTION NO. -89
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AMENDMENT TO THE DEVELOPER AGREEMENT FOR TRACT 4978
AND .APPROVING DECLARATION OF RESTRICTIONS
WHEREAS, on March 27, 1989, the City Council approved an
agreement with BJ Dublin Commercial to improve Tract 4978; and
WHEREAS, a Letter of Credit in the amount of $690,000 was
deposited with the City to secure the construction of said improvements; and
WHEREAS, the developer wishes to record a Declaration of
Restrictions as security for Tract improvements in lieu of the Letter of
Credit; -
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of Dublin approves the First Amendment to City of Dublin Tract Developer
Agreement (Tract 4978) , a copy of which is attached hereto as "Exhibit A," and
authorizes the Mayor to execute it;
BE IT FURTHER RESOLVED that the City Council authorizes the City
Manager to execute the Declaration of Restrictions, a copy of which is
attached to "Exhibit A."
BE IT FURTHER RESOLVED that upon recordation of the Declaration of
Restrictions, the Letter of Credit is released.
PASSED, APPROVED, AND ADOPTED this 25th day of September, 1989.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
FIRST AMENDMENT TO
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
WHEREAS, a Tract Developer Agreement was entered into on March
27, 1989, by and between the City of Dublin ("City") and BJ Dublin
Commercial, Inc. ("Developer") ; and
WHEREAS, the City and Developer desire to amend ., said
Agreement;
NOW, THEREFORE, said Agreement is amended as follows:
A) Delete paragraph 1 and insert in its place paragraph 1
to read as follows:
"1. Developer will commence work required by this
Agreement within sixty (60) days' . written notice
from City, and shall complete said work not later
than three hundred sixty-five . (365) days following .
the date of commencement. Upon completion,
Developer shall furnish City with a complete and
reproducible set of final as-built plans, including
any authorized modifications."
B) Add, the following paragraph at the. end of paragraph 2 :
"In lieu of the required bonds or letter of
credit, Developer may record a . "Declaration of -
Restrictions" in a form acceptable to City, whereby
the Developer covenants not to develop Tract 4978
until the required bonds are furnished. " • -
EXCEPT AS EXPRESSLY AMENDED, the Tract Developer Agreement
shall remain unmodified.
CITY OF DUBLIN
By:
Mayor
ATTEST:
City Clerk
(Signatures continued on next page.)
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DEVELOPER: BJ Dublin Commercial,
a California partnership
By: H & M Investments, Inc. ,
its General Partner
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By:
J. as Moore, President
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RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
J. Patrick Land Company
7901 Stoneridge Drive, Suite 403
Pleasanton, CA 94566
City of Dublin, City Clerk
6500 Dublin Boulevard
P. O. Box 2340
Dublin, CA 94568
Space above this line for Recorder' s use
DECLARATION OF RESTRICTIONS
This Declaration of Restrictions : ("Declaration") is made and
entered into this day of September, 1989, by BJ DUBLIN
COMMERCIAL, a California Limited Partnership, the latter being the
owner ("Owner") of that certain property ("Property") described as
follows:
Parcel One:
Parcel B of Parcel Map 2817 filed September 10, 1981, in Book
128 of Parcel Maps, at Page 83, Alameda County Records.
Parcel Two:
An easement for ingress and egress and public utilities as an
appurtenance to Parcel One hereinabove described over the
southerly 20 feet of Parcel A of Parcel Map 2817, filed
September 10, 1981, in Book 128 of Parcel Maps at Page 83 ,
Alameda County Records.
Parcel Three:
Lots 1 thru 5, inclusive, Tract 4978, filed June 5, 1984, Map
Book 145, Pages 3 , 4 and 5, Alameda County Records.
Parcel Four:
Those portions of Dougherty Road and Sierra Lane, as shown on
the Map of Tract 4978, filed June 5, 1984, Book 145 of Maps,
Page 3 , Alameda County Records, which lie within the
boundaries of said Tract 4978 .
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Recitals
A. On the 27th of March, 1989, Owner entered into a Tract
Developer Agreement with the City 'of Dublin ("City") . The Tract
Developer Agreement called for the construction of certain public
improvements on that portion of the Property described as Parcel
Four (the public improvements described in the Tract Developer
Agreement are hereinafter referred to as "the Sierra Lane
Improvements") .
B. Owner was required to provide City security for the
performance of Owner's obligations under the Tract Developer
Agreement, specifically including the construction of the Sierra
Lane improvements.
C. Subsequent to the execution of the Tract Developer
Agreement and at the present time, City is analyzing whether
construction of the Sierra Lane improvements, as called for in the
Tract Developer Agreement, are in the best long term interests of
city.
D. Pursuant to the First Amendment to the Tract Developer.
Agreement, Owner may substitute this Declaration of Restrictions
against the Property for Owner's obligations under the Tract
Developer Agreement.
E. In consideration of the City's not requiring additional
security for Owner's obligations under the Tract Developer
Agreement, Owner hereby executes and submits for recordation this
Declaration which is intended to restrict the development and
transfer of the Property. .
Provisions
The development and sale or transfer of the Property shall be
restricted as provided in this Declaration. .
1. Restriction on Development. Owner, or its successors,
shall not apply for, and City shall be under no obligation to
issue, any building permit for the development of the Property
until such time as one of the conditions described in paragraph 3 .
is satisfied.
2 . Restriction on Transfer of Lots or Parcels. Owner, or
its successors, shall not sell or transfer any parcel or lot
included within the Property until one of the conditions described
in paragraph 3 . is satisfied. Notwithstanding the foregoing
language, Owner may sell the Property in its entirety prior to the
satisfaction of the conditions described in paragraph 3 . , provided
that in such event, the transferee shall take the Property subject
to all of the terms in this Declaration.
2
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3. Conditions of Termination and . Release of Declaration.
A. In the event that Owner determines that it wishes
to proceed with the development of 'the Property in accordance with
the Tract Developer Agreement and the approved plans for Tract
4978, Owner shall first obtain and provide City with all of the
bonds and insurance certificates required under the Tract Developer
Agreement to secure Owner's performance. of the construction of the
Sierra Lane improvements. Specifically, Owner shall have furnished
City with a Faithful Performance Bond and a Labor and Materials
Bond for the Sierra Lane improvements, as set forth in the Tract
Developer Agreement. Each bond shall be in a form prescribed by
City, and shall be issued by a company duly and legally licensed
to conduct a general surety business in the State of California.
B. In the event that (1) City adopts a resolution
establishing an assessment district and ordering improvements to
be made to extend Dublin Boulevard from its current terminus. at
Dougherty Road easterly to the Southern Pacific railroad tracks or
beyond, such that City no longer requires that the Sierra. Lane
Improvements be built, and the Property is included within the
boundaries of the assessment district, then, upon the date 31 days
following the date the assessments are levied or, if an action is
filed contesting the validity of the assessments, upon the date 31
days following the entry of a final judgment in such action, and
(2) a new subdivision map for Tract 5900 has been recorded for the
Property, then this condition shall be deemed satisfied.
4 . Termination and Release of Declaration. Upon the
satisfaction of one of the conditions in paragraph 3. , as described
herein, this Declaration shall be deemed terminated and of no
further force and effect. Upon satisfaction of one of said
conditions, the Owner and City shall execute, acknowledge, and
record a termination and release of this Declaration.
5. Enforcement. The provisions of this Declaration of
Restriction shall be specifically enforceable by Owner and City.
The restrictions of this Declaration shall run with the land and
bind the Property from the date that this Declaration is recorded,
unless earlier terminated and released in accordance with the
provisions of paragraph 3 .
6. Construction and Jurisdiction. If any term or provision
of this Declaration, or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the
remainder of this Declaration, or the application of such term or
provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Declaration shall be valid and be
enforced to the fullest extent permitted by law. This Declaration
shall be construed in accordance with the laws of the State of
California.
3 .,
7. Titles and Captions. Titles and captions contained in
this Declaration are inserted only as a matter of convenience and
for reference and in no way define, limit, extend or describe the
scope of this Declaration or the intent of any provision herein.
8. Amendment, Modification or Termination. This Declaration
of Restrictions may not be amended, modified or terminated without
the written consent of the City of Dublin.
IN WITNESS WHEREOF, the Owner has executed this Declaration of
Restriction to be recorded against the Property.
BJ DUBLIN COMMERCIAL
a California Limited Partnership
By: H&M Investments, Inc.
a California corporation
By: �� C
JAI P. Moore
Its: President
Its: General Partner
By:
Arthur D. B dges
Its: General Partner
CITY OF DUBLIN
a Municipal corporation
By:
Richard C. Ambrose
City Manager
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STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On this th day of , 1989,
before me, the undersigned Notary Public, personally appeared
RICHARD C. AMBROSE, City Manager of the City of Dublin.
personally known to me; or
proved to me on the basis of satisfactory evidence, to be
the person whose name is subscribed to the within instrument, and
acknowledged that she executed it.
WITNESS my hand and official seal.
5
STATE OF CALIFORNIA
COUNTY OF ALAMEDA •
On 1 , 19841 , before me, Debra Ragland-Wilson, a Notary Public in and for
said County and State, personally appeared John P. Moore, known to me to be the President of H&M
Investments, Inc., a California corporation, the person who executed the within instrument on behalf
of said corporation and acknowledged to me that said corporation executed the within instrument, said
corporation being known to me or proven to me to be a general partner of BJ Dublin Commercial, a
California Limited Partnership, the Limited Partnership that executed the within instrument, and
acknowledged to me that such corporation executed the same as a general partner of said Limited
Partnership
t OFFICIAL SEAL 1 -�
DEBtA RAGIANaIt
SON
P\C4, V+ l/••—•- ',; . NOT MI
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Ml Comm,Espies AN 23,1993 \01-3
Commission Expires: !Z'�
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
On s ca-f 1 8 , 198 9 , before me, a Notary Public in and for said County and State,
personally appeared Arthur D. Bridges, said person being known to me or proven to me to be a •
general partner of BJ Dublin Commercial, a California Limited Partnership, the Limited
Partnership that executed the within instrument, and acknowledged to me that such person executed the
same as a general partner of said Limited Partnership
lllmnuminnlnululm1MOM UNIMIIIM INIIMM IIIMIO MITT'=-` / 1 . C4-0.4
e ELIZABETH A.CALHOUN
NOTARY PUBLIC 3
ALAMEDA COUNTY,CALIFORNIA = Commission Expires: 5/llIq I a"'
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My commission expires May 11,1992
ri1111MM11MMIM1IUIIMIIIIIUIMIIIIIIIII IHUIM111111111111111111111111111dlllh.
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this day of iti/9PG-1 , 1989, by
and between the City of Dublin, a municipal corporation, hereinafter referred to as
"CITY", and B.J. Dublin Commercial, Inc. , a California limited partnership,
hereinafter referred to as "DEVELOPER". This contract is in place of and
supersedes the Tract Developer Agreement for Tract 4978 dated May 10, 1984 between
City and James H. Geldermann, et. al.
W I T N E S S E T H
WHEREAS, it has been determined by the City Council of the City of Dublin,
State of California, that DEVELOPER, as a subdivider, desires to improve and
dedicate Tract 4978 in accordance with the requirements and conditions set forth
within the Alameda County Planning Commission Resolution No. 81-46 adopted on
December 4, 1981; the requirements of the Subdivision Map Act of the State of
California and the Subdivision Ordinance of the City of Dublin; and those certain
plans and specifications for said development approved by said City Council, 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 required
improvement within the time hereinafter specified, and City intends to accept
Developers' offer(s) of dedication of said improvement(s) 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 the work required by this
Agreement as soon as practicable, and shall complete said work not later than three
hundred sixty-five (365) days following said date of execution, time being of"the
essence hereof. Upon completion, Developer shall furnish City with a complete and
reproducible set of final as-built plans, including any authorized modifications.
2. Bonds Furnished. Concurrently with the execution of this Agreement,
Developer shall furnish City with a Faithful Performance Bond and a Labor and
Materials Bond. Each bond shall be in a form prescribed by City, and shall be
issued by a company duly and legally licensed to conduct a general surety business
in the State of California. Each bond shall become a part of this Agreement.
a. Faithful Performance Bond. Developer shall furnish City with a bond
conditioned upon the faithful performance of this Agreement, said bond to be in the
penal sum of $460,000.
b. Labor and Materials Bond. Developer shall furnish City with a bond
conditioned upon payment of all claims for labor and materials used or consumed in
the performance of this Agreement. Said bond shall comply with the laws of the
State of California, and with Title 15, Part 4, Division 3 of the Civil Code of the
State of California (commencing with Section 3082). Said bond shall be in the
penal sum of $230,000.
4 Yi
In lieu of the required bonds, Developer may furnish to City a letter
of credit in the amount of $690,000 and in a form acceptable to City.
3. Insurance Required. Concurrently with the execution of this Agreement,
Developer shall furnish City with evidence of insurance coverage as specified
below.
a. Worker's Compensation Insurance. Statutory coverage as required to
cover the full liability of Developer in accordance with the provisions of Division
IV of the Labor Code of the State of California, and an employer's -liability
insurance coverage with a limit of not less than $100,000 per occurrence to cover
any claims arising from employment not covered by worker's compensation laws.
b. Comprehensive General Liability Insurance. Minimum limits of
liability shall not be less than $1,000,000 per occurrence combined single limit
bodily injury and property damage coverage; any deductible provision shall not
exceed $10,000 per claim, and each and every policy must contain a cross liability
or severability of interests clause.
c. Comprehensive Automobile Liability Insurance. Minimum limits of
liability shall be not less than $1,000,000pper occurrence combined single limit
bodily injury and property damage coverage; coverage shall include owned, non-
owned, and hired vehicles, and each and every policy must contain a cross liability
of severability of interests clause.
d. Other Requirements. All insurance policies shall be issued by a
company legally licensed to transact business in the State of California, shall be
issued at Developer' s own cost and expense, shall be maintained by Developer in
full force and effect during the life of this contract, and must have an "A.M.
BEST" rating of B+, X or better. All certificates of insurance shall name the City
and its officers, agents and employees as additional insureds, shall contain a
provision that a written notice of cancellation or reduction in coverage shall be
furnished the City (10) ten days in advance of the effective date thereof, and
shall state that such coverage is primary to any other coverage of City.
4. Work Performance and Guarantee. Developer shall secure the services of
those skilled in the trade, profession, or calling necessary to perform the work to
be accomplished under the terms of this contract, and shall guarantee and maintain
the work for a period of one (1) year following the completion and acceptance
thereof against any defective workmanship or defective materials furnished in the
performance of this Agreement, and any acceptance of the work by City will not
operate as a release to Developer or Developer's bondsmen from the aforesaid
guarantee.
5. Inspection of the Work. Developer shall guarantee free access to City
through its Public Works Director/City Engineer and his designated representative
for the safe and convenience 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.
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7. Abandonment of work. If the work to be done under this Agreement is
, abandoned, or if this Agreement is assigned by Developer without written consent of
City, or if City through its City Engineer determines that the said work or any
part thereof is being unnecessarily or unreasonably delayed or that Developer is
willfully violating any of the conditions or covenants of this Agreement or is
executing this Agreement in bad faith, the City shall have the authority to order
Developer to discontinue all work or any part thereof under this Agreement, and
Developer shall cease to continue the work or such part thereof as City
maydesignate, and City shall thereupon have the power to obtain by Agreement,
purchase, rental or otherwise, all labor, equipment, and materials deemed necessary
to complete the work and to use such materials as may be found upon the line of
such work. Developer and his sureties or the issuer of the letter of credit shall
be liable for all expenses incurred by City for the acquisition and use of such
labor, equipment, and materials.
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 Developers, 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 accept the work and 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 of publication.
12. 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. This paragraph shall apply to the issuer of any letter of credit.
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.
13. Liability.
_ a. Developer Primarily Liable. Developer shall be responsible for any
and all loss, accident, neglect, injury or damage to person, life or property which
may be the result of or may be caused by construction, operations, or execution of
this Agreement, and for which City might be held liable. Developer shall protect
and indemnify the City of Dublin, the City Council, the City Engineer and/or any
officer, agent or employee of the City, and save them harmless in every way from
all suits or actions at law for damage or injury to persons, life or property that
may arise or be occasioned in any way because of construction operations or
execution of this Agreement.
b. 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 or the issuer of the letter of credit
shall be liable to the City for the corrective work required.
c. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate at Dublin, California, the day and year first above written.
CITY; DUBLIN
13k,r (2c(ii -,g,/aRr----
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v Maypr
ATTEST: /
1 (.tf� . ;D.--
City Clerk \-2)
DEVELOPER: BJ Dublin Commercial, a California
limited partnership
By H & M Investments, Inc. , its General Partner
By c.
Jo P. Moore, President
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