HomeMy WebLinkAboutItem 4.3 Amend Development Agree Tract 4719 COo -_30
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 26, 1984
SUBJECT: Amendment to City of Dublin - Tract
Developer Agreement for Tract 4719
EXHIBITS ATTACHED: 1) Original tract developer agreement
2 ) Amendment to City of Dublin tract
developer agreement
3 ) Location map
RECOMMENDATION: Approve Amendment to City of Dublin -
Tract Developer Agreement (Tract 4719
and authorize Mayor to sign on behalf of
the City.
FINANCIAL STATEMENT: None to City.
DESCRIPTION: The original developer, Larry Lee, is in
the process of selling this development to the Dublin Hills
Partnership in four phases . The improvements guaranteed by
the agreement are now nearly complete. This amendment to
agreement replaces the portion of Larry Lee' s security with
the new developers security for a portion of the project.
This portion of Tract 4719 includes lots 61 through 94 and
is the northern most cluster of lots east of Stagecoach
Road.
The replacement security consists of a " set-aside letter"
issued by the Bank of America, NT & SA, in the amount of
$316,200 . 00 which will reduce the existing First Interstate
Mortgage Corporation ' set-aside letter" by an equal amount.
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AlITEM NO. � COPIES TO:
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this 12thday of December 1983,
by and between the City of Dublin, a municipal corporation, hereinafter referred
to as "CITY", and Larry C. V. Lee, hereinafter referred to as "DEVELOPER".
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 4719 in accordance with the requirements and conditions set forth within the
City of Dublin (Alameda County Planning Commission Tract 4719, 1486th Zoning Unit)
adopted on July 20, 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 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 N .
WHEREAS, Developer intends to satisfactorily complete the required improvement
within the time hereinafter specified, and City intends to accept Developer's 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 within a timely manner following the date on which City executes this
Agreement. Developer shall complete said work not later than 18 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, including any authorized modifications.
2. Security Furnished. Concurrently with the execution of this Agreement,
Developer shall furnish
City with a "Set Aside Letter" securing faithful performance
and labor and materials. Such "Set Aside Letter" shall be in a form prescr ibed by
City, and shall be issued by Fi=st Interstate Mortgage Corporation or such other
major financial institution as may be approved by City. The "Set Aside Letter" stall
become a part of this Agreement.
The "Set Aside Letter" shall be conditioned upon the faithful performance
of this Agreement and upon payment of all claims for labor and materials used or
consumed in the performance of this Agreement. The "Set Aside Letter" shall be in
the form attached as Exhibit "A" and shall be in the sum of $4,277,913.00.
3. Insurance Required. Concurrently with the execution of this Agreement
or prior to the commencement of any construction, Developer/Contractor shall
furnish City with evidence of insurance coverage as specified below.
a. Worker's Compensation Insurance. Prior to 'the commencement of
construction, 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 occ,—,-rence to cover any claims arising f:em
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 snail not
exceed $1,000 per claim, and each and every policy must contain a cross liability
or severability of interests clause.
Page 1
•
C. Comprehensive Automobile Liability Insurance. Minimum limits of
liability shall be not less than $1,000,000 per 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 or 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 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 contact, and any acceptance
of the work by City will not operate as a release to Developer or Developer's bonds.T.en
from the aforesaid guarantee.
5. Inspection of the Work. Developer shall guarantee free access to City
through its City Engineer and his 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.
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 may designate, 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 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 matter 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, watc:rien,
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
10. Patent and Copyright Costs. In the event that said plans and speci-
fications 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.
11. 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 financial institution
from liability on any "Set Aside Letter" attached hereto and made a part hereof,
and consent to make such alterations is hereby given, and the financial institutions
hereby waive the provisions of Section 2819 of the Civil Code of the State of
California.
12. 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 opera-
tions 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 financial institution under
the "Set Aside Letter" shall be liable to the City for the corrective work reauired.
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 judgement is entered in said action, the prevailing party shall be
entitled to recover its attorneys' fees and cou_Tt costs. _
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,
i
i
BY
Mayor
ATTEST:
City Clerk
DEVELOP R
BY /��
L
AMENDMENT TO
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This amendment to agreement is made and entered into by and
between the City of Dublin, a municipal corporation, hereinafter
referred -to as "CITY" , Larry C.Y. Lee, hereinafter referred to as
"ASSIGNOR-DEVELOPER" , and Dublin Hills Partnership, hereinafter
referred -to as "ASSIGNEE-DEVELOPER" .
Recitals
1. On December 12, 1983 , the City and the Assignor-Developer
entered into that agreement entitled "City of Dublin Tract Developer
Agreement" pursuant -to which Assignor-Developer agreed to complete
improvements within Dublin Tract 4719 as required by the tentative
map for such subdivision and -the 1486th Zoning Unit (such agreement
hereinafter called -the "Tract Developer Agreement") .
2. Pursuant to paragraph 2 of the Tract Developer Agreement,
Assignor-Developer furnished the City a Set Aside Letter issued
by First Interstate Mortgage Corporation securing Assignor-Developer ' s
obligations under -the Tract Developer Agreement.
3 . Assignor-Developer has agreed to sell to Assignee-Developer
Lots 61-94 , inclusive, of Dublin Tract 4719 .
4 . Assignee-Developer has agreed to complete all on-site
subdivision improvements required on Lots 61-94 , inclusive, of
Tract 4719 as partial consideration for the purchase of such lots
in discharge of Assignor-Developer' s obligation to the City in
connection with such improvements.
5. In order to consummate the sale of Lots 61-94, inclusive,
of Tract 4719, it is necessary that the City accept the "Set Aside
Letter" issued by Bank of America NT&SA, the Assignee-Developer's
lender, in partial release of the Set Aside Letter issued by First
Interstate Mortgage Corporation, Assignor-Developer's lender.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, con-
ditions and covenants herein contained, the parties agree as
follows:
1. Replacement Security. Assignee-Developer agrees that it
shall furnish the City with a "Set Aside Letter" issued by Bank
of America, NT&SA in an amount equal to $9 ,3.00 per lot for each
of the 34 lots it is purchasing from Assignor-Developer, being Lots
61 through 94, 'inclusive, of Dublin Tract 4719, for a total amount
of $316 , 200 securing faithful performance and labor and materials
of and for all on-site subdivision improvements required within
and upon such Lots 61 through 94 , inclusive. The foregoing "Set
Aside Letter" to be issued by Bank of America, NT&SA, shall become
a part !of -the Tract Developer Agreement and payment ahall be 'conditioned
upon the faithful performance of the -Tract Developer Agreement to
the extent that such agreement relates to the completion of on-site
subdivision improvements on and within . Lots 61 through 94 , inclusive.,
of Dublin, Tract 4719, and upon payment of all claims -for labor and
materialsiused or consummed in performing the foreging on-site
improvement obligations on Lots 61 through 94 , inclusive, under the
Tract Developer Agreement. The Set Aside Letter shall be in form as
attached hereto as "Exhibit A'
2. Release of Security. Upon receipt of the "Set Aside Letter"
from Assignee-Developer as referred to in paragraph 1 herein, the
City shall reduce the amount of the security required under the Set
Aside Letter issued by First Interstate Mortgage Corporation pursuant
-2-
to Paragraph 2 of the Tract Developer Agreement by an amount equal -to
$ 9, 300per lot for Lots 61 through 94 , inclusive, of Dublin Tract 4719 ,
or $ 316, 200 in total , and further agrees that such Set Aside Letter
issued by First Interstate Mortgage Corporation shall be released in
such amount.
3 . Obligation To Complete Improvements. Assignee-Developer
acknowledges and agrees that upon close of escrow for the purchase of
Lots 61 through 94 , inclusive, of Dublin Tract 4719 from Assignor-
Developer, it shall be and become responsible and obligated to complete
all on-site subdivision improvements required under -the Tract Developer
Agreement on or within Lots 61 through 94 , inclusive, of Dublin Tract
4719 . The City hereby consents to the foregoing assumption of obliga-
tions.
4 . All Other Provisions To Remain In Effect. Except as
specifically modified by this Agreement, all provisions of the Tract
Developer Agreement, including but not limited to -the insurance require-
ments under paragraph 3 , shall remain in full force and effect and
are hereby confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate at -the places and upon -the dates set forth
opposite their respective signatures below.
CITY OF DUBLIN
Executed at Dublin,
California on 1984
By
Mayor
ATTEST
Executed at Dublin,
California on 1984
City Clerk
-3-
ASSIGNOR-DEVELOPER
Executed at Oakland, California
on November 20, 1984
By
Larry g . `Lee
ASSIGNEE-DEVELOPER
Dublin Hills Partnership
By Parish Land & Cattle Company,
General Partner
Executed at San Jose,
California on November 20, 1984
E. J: Parish, President
By I ch In . , eneral Partner
Executed at Sunnyvale,
California on November 20, 1984
a
By, y
Mi ha 1 W. Vall y, President
-4-
Bank of America
Concord Real Estate Developer Center I
November 19, 1984
Mr. Lee Thompson
Dublin City Engineer !
P.O. Box 2340
Dublin, CA 94568
RE: Subdivision Name: Dublin Hills - - — -- -
34 Lots #61 through 94 inclusive
Tract 4719
Alameda County
Dublin, CA
Principal : Dublin Hills Partnership
Obligee: City of Dublin
Gentlemen:
We have agreed to make a land development loan to Dublin Hills
Partnership subject to certain conditions for the installation
of sewer line improvements, streets, streetlighting and traffic
control , erosion and sediment control , waterline improvements
and fire protection in the subject subdivision, in the City of
Dublin, County of Alameda, State of California.
We hereby agree that an amount of $316,200 to pay the cost of the
abovementioned improvements is to be earmarked in a separate account
and will be used to pay the cost of the said improvements. These
payments will be disbursed to the borrower on the borrower's order,
at the times when the required work has reached the stages of
completion as required by the schedule of progress payments attached
hereto. We have no obligation with respect to insuring (1 ) proper
completion of such improvments, including without limitation
workmanship and timeliness, or (2) that the earmarked amount is
sufficient to complete the improvements.
In the event that there is a default by the Principal in its obligation
to the City of Dublin, all funds remaining in said separate account,
if any, at the time of receipt at this branch of your written
notification of the default, shall be available to you, at the same
times and under the same conditions as they would have been paid
Bank of America National Trust and Savings Association 2020 Willow Pass Road
Concord, California 94520
�.r a
November 19, 1984
City of Dublin
Page Two ---
to the borrower had the work been performed by the borrower, to complete
with diligence and pay for the cost of completing the abovementioned
improvements. Our obligation to disburse funds hereunder is subject
to stop notices, tax assessments or levy, attachment, executions, or
other legal processes.
We shall be fully protected in making payments in reliance on work
completion certificates from contractors and are not responsible
for proper use of funds disbursed.
Funds in said separate account are not subject to offset by us, and
you shall have no obligation to repay funds disbursed as described
in this letter.
We shall have no obligation to disburse from said separate account
after 180 days have elapsed from the date the aforementioned improvements
are accepted by the applicable approving authority.
This is an irrevocable commitment of funds not subject to recall , but
is contingent upon recordation of our deed of trust securing the above
loan.
Bank of America, NT&SA
By: 10-'J u F. 'Qew�S
oOg as R. Drewes
Assistant Vice President
TO BANK: The borrower of the land development loan to complete the
above subdivision hereby agrees that any sum paid by you in accordance
. with your above undertaking shall be deemed to be an advance to the
borrower under the land development loan .
DUBLIN HILLS PARTNERSHIP
By Parish Land & Cattle Company, General and Co-Managing Partner
By: _ Date:
Edwin J. Parish, President
By Ikotech, Inc. , General and Co-Managing Partner
By: Date:
Michael W. Valley, President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
SUBDIVISION IMPROVEMENTS CONSTRUCTION PROGRESS REPORT
Firm Name: -Dubl in Hi l Is Partnership_ ___ _ Branch: Concord R.E. Dev. Center. No: 1.337 Date: November 14. 1984
Tract No.: 4219_ City: —D1bl in County: Alameda State: Cal i forni a
"'I I I'r,•/,nr,• /i,rur in .t rnl,ios: Cotu+lrurliun progrrss insperliun repurl for parlidl pnynteW eutiering the insiolloliun of suhrlivisioo improt,etnews.
TOTAL UNIT TOTAL. PAY- REPORTED PREVIOUSLY THIS PERIOD TOTAL TO DATE
MENT -- —
ITEMS QUANTITY COST COST $ N0, Quonlily $ Amount (a) Quantity $ Amount (b) Quantity $ Amount (a&b
Fine Grade ____78.1.600... _ l..68._ _131204.80
2'/2" AC_&_8".. -
4"_ AB__curb_.& gutt r-..___6-,260.. ._.._. -,323.-_ 2r02 - -
"'.AB_-siriewal k-&_ r-i veway-10,.79 -_2.4.2__-2,612x15——_— —
TOTAL-GRADING..&- T-REETS----- _ .__.-_-___7_4,504„_9-7_ --- —
8" VCP 1. .865 19.35_ 36 087.75 '
4" VCP_Laterals _ 13,532.00 _
Standard MaChQ�-�s._ 10_ . .1860 10,6600 00—_
TOTAL_-SANITARY-SE ERS-___ __.-.
Curb_.&-Gutter_.___...... .__-.3_,-120_._.—
4" Sidewalk. -___.__ ._.._.7.rH_4._--. ._J_42_ —1 ,921.20—
6" Driveway 3,055 1 .75 5,346.25
Indicap_Ramps..._ ._ __—__._-9.—.-_ ._.240__0 ._ 1 ,920.00 —
3pecial Inlets 2_ 1,090_00 2L180,00_
TOTAL CONCRETE 37,864. 15
8 AC?-- - - -._. ._..1,8.68_. ...-- -22. 12 41 '32'0. 16 _ .._.
Fire Hydrants 5 ?,C§7.0 10 285,00
Air.-Valves ............_. .- — - 2 -- - _578._ 1156.00- — --
TOTAL._WATER . _.._. .. _.. .._-- ._._ . -----_-_--- 5276-1 16_ —_--.- -------_--
Electrol iers 8 _ 1,320.CO _ 10,560:00
'T�enching w/Sand Ba kfi11 2,400 1 11.001 26,400,00
TOTAL S AMOUNT
Page 2 ' SUBDIVISION IMPROVEMENTS CONSTRUCTION PROGRESS REPORT
Firm Name: .D.ubli.n_li.Llls._Partner.shi Branch: .Concord R.E. Dev. Center. No: 1337 Date: November 14, 1984
Tract No.:
4719 City: Dubl in County: Alameda State: Cal ifornia
._
\r,11': 1rr/rrn lr,rur irr isiorr
ruprs: ( orrsrur / ti pr b/ir iurprur rurr,rl...
PAY- REPORTED PREVIOUSLY THIS PERIOD TOTAL TO DATE
TOTAL UNIT TOTAL. MENT -----
ITEMS QUANTITY COST COST $ N0. 'Quantity $ Amount (a) Quantity $ Amount (b) Quantity S Amount (o&b)
TOTAL LIGHTING
36 960.00
Toe of Slope Gutt r 1 ,250 _ 7_98_ __ 9975.00
It Basin _ _ _ _ 2____ _,970.00 19,940.00 _
_�elocitControl_ ike 4 ^_ 548.00
_Diverson Dikes ____.__?.....__. ...M .---600.00
TOTAL..ER06.ION.&.SEDINEI _ CONTROL _.__-_-- 31,063.00 --•__--—
Traffic Si-gn-,___ 10_ _ 147.00 1 :470.00-
Street-Sign _ _ 4 179.00 716.00— —
Pavement Striping —_1 ,200 _ .45 _ 540.00
TOTAL TRAFFIC CONTROL ---------.--•— -•___-- _ 2,726.00
Monuments --- -- -- 13---- -100.00 1300.00 ----- --- —
Berm & Walk 245 _— _ 12.32 3,018.40_—
. ..--------- - -
TOTAL MISCELLANEOUS 4,318.40_—
Contingency
GRAND TOTAL . 316,200.0.0 - ----
TOTAL S AMOUNT
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