HomeMy WebLinkAbout4.02 Replacement of Developer Tract 4978 600-&0
CITY OF DUBLIN
AGENDA STATEMENT
City Council Meeting Date:' March 27, 1989
SUBJECT: Tract 4978: Replacement of Developer
(Report by: Public Works Director Lee Thompson)
EXHIBITS ATTACHED: 1) Resolution
2) Tract Developer Contract
3) Copy of Escrow Instructions
4) Location Map
RECOMMENDATION:TOVMayor dopt Resolution Approving New Developer and authorize
to execute agreement.
FINANCIAL STATEMENT: None.
DESCRIPTION:
In May of 1984, the City of Dublin approved the Final Map for Tract
4978, a five-lot subdivision on Dougherty Road. The original developer was
James H. Geldermann, et. al. No improvements were constructed within the
Tract.
The interest in this Tract has transferred to B.J. Dublin Commercial,
who has provided a new letter of credit (deposited into escrow) in the
required amount and signed a new developer agreement. Upon acceptance by the
City Council, the original letter of credit and the original developer
agreement may be released. As indicated in the attached escrow instructions,
the City is to deposit the original Diablo Bank letter of credit, resolution
releasing the Geldermann estate's contract, and the executed agreement with BJ
Dublin Commercial.
B.J. Dublin Commercial plans to eventually file a new Map (Tract 5900)
over the Map for Tract 4978; however, they have agreed to take over Tract 4988
at this time in order to relieve the previous Developer of further obligation.
Staff recommends that the City Council adopt the Resolution Approving
New Developer and authorize the Mayor to execute the agreement.
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ITEM NO. COPIES TO: B.J. Dublin Commercial
RESOLUTION NO. -89
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING REPLACEMENT OF SUBDIVISION AGREEMENT AND SECURITIES,
TRACT 4978
WHEREAS, the Final Map of Tract 4978 in the incorporated
territory of the City of Dublin, State of California, has been presented to
and approved by the City Council, all in accordance with the provisions of the
Subdivision Map Act of the State of California and the Ordinance Code of the
County of Alameda, as adopted by the City of Dublin; and
WHEREAS, the original Developer, James H. Geldermann, et. al. ,
has executed and filed with this City Council a contract to improve Tract 4978
together with attendant securities in accordance with the Final Map of said
Tract 4978, the Tract Improvement Plans and specifications attached thereto;
and
WHEREAS, B. J. Dublin Commercial, Inc.., has purchased the project
and will become the new Developer; and
WHEREAS, this new Developer has executed and filed with this City
Council a contract to construct and maintain Tract 4978 in accordance with the
Final Map of said Tract 4978, the Tract Improvement Plans, and the
__- Specifications attached thereto; and
WHEREAS, said contract is secured by a Letter of Credit in the
amount of $690,000;
NOW, THEREFORE, BE IT RESOLVED that the contract and security be
and they are hereby approved, and the Mayor of this Council be, and is
authorized and directed to execute said Contract on behalf of the City of
Dublin.
BE IT FURTHER RESOLVED that the City deposit into escrow the
original Diablo Bank letter of credit, executed tract developer agreement with
BJ Dublin Commercial, and this resolution terminating the Geldermann tract
developer agreement.
PASSED, APPROVED, AND ADOPTED this 27th', day of March, 1989.
AYES:
i
NOES:
i
ABSENT:
Mayor
ATTEST:
91 Aids&
In X
t
City Clerk '
CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this day of 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.
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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.
I
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.
Ex F1 U I
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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 $1,000,000 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
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.
S. 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_ Ass, g une t.,_ ._This- Ags:eem(;knt, shall l,not _be:_assipnp - D.evaia es.
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 OF DUBLIN
By
Mayor
ATTEST:
City Clerk
DEVELOPER: BJ Dublin Commercial, a California
limited partnership
By H & M Investments, Inc. , its General Partner
By C-
J n P Moore, President
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Modification to Joint'Escrow Instructions
The undersigned parties have agreed to the following Modification to Joint Escrow
Instructions. The intent of these instructions are to change the documents required to
be deposited by the City of Dublin and BJ Dublin Commercial in order that Escrow
Holder may proceed and close the escrow prior to hearing on BJ Dublin Commercial's
Final Map 5900.
1. City of Dublin to deposit:
a. Original Diablo Bank Letter of Credit #1155 dated May 29, 1984.
b. Copy of Resolution terminating of Tract D,eveloper Contract (with Geldermann)
dated May 10, 1984.
c. Executed Tract Developer Contract between City and BJ Dublin Commercial.
FOR TRACT 4978.?U/
2. BJ Dublin Commercial to deposit:
a. Such security and certificates of insurance and other documents required by
Tract Developer Contract with City-of Dublin (i.e. Letter of Credit or Performance
Bonds,etc.). FOR TRACT 4978.
Once all of the above listed documents have been received in addition to those
already deposited by Estate of Geldermann and Security Pacific National Bank,
Escrow Holder is instructed to do the following:
1. Mark the Diablo Bank Letter of Credit "Cancelled" and return to Security Pacific
Bank.
2. Mark the Promissory Note dated June 28, 1984 "Cancelled" and return to the
Estate of Geldermann.
3. Deliver a copy of the City of Dublin Resolution terminating the Tract Developer
Contract dated May 10, 1984 to the Estate of Geldermann.
4. Record the Deed of Reconveyance for the Deed of Trust dated June 28, 1984.
5:-Record7-the-Quit-Glaim+,Deeds44-,oiivAhe.Estate-afr•Geldermann
Commercial.
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6 Deliver the Secunty,"certificates of insurance and other documents provided by BJ
Dublin Commercial pursuant to its Tract Developer Contract to'City of Dublin by 'r
This modification of instructions shall be signed in counterpart and shall, together with
the previously executed joint escrow instructions, represent one set of instructions.
This modification shall be controlling in the event of any inconsistency between this
modification and the previously executed joint escrow instructions.
_ BJ Dublin Commercial Dated:
a California Limited Partnership
by:H&M Investments, Inc.
a California corporation
By:
John P. Moore
Its: President
Its: General Partner
City of Dublin Dated
By• ��--
its: (2 z
Estate of Gelderman Dated:
By:
Its:
By:
Its:
Security Pacific Bank Dated:
By:
Its:
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