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HomeMy WebLinkAboutItem 4.03 DublinRchTr 7148 CITY CLrERK AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 3, 2004 SUBJECT: Second Amendment to Tract Developer Agreement for Tract 7148, Dublin Ranch, Areas F, G, and H (Toll-Dublin, LLC) to Extend Completion Date until July 16, 2004 Report Prepared by: Melissa Morton, Public Works Director ATTACHMENTS: 1) Resolution Amending the Tract Developer Agreement 2) Original Tract Developer Agreement for Tract 7148 3) Location Map RECOMMENDATION: Adopt the resolution amending the Tract Developer Agreement for Tract 7148, Dublin Ranch Areas F, G, and H (Toll-Dublin, LLC) to  extend the completion date until July 16, 2004. FINANCIAL STATEMENT: Toll-Dublin, LLC, has provided Performance Bonds in amounts totaling $951,600, and Labor and Materials Bonds in amounts totaling $475,800 to guarantee construction of public right-of-way landscaping work, and will pay for the cost of the associated construction inspection. DESCRIPTION: Dublin Ranch, Areas F, G and H (Tract' 7148) are located in the Eastern Dublin Specific Plan area north of Dublin Boulevard, south of Central Parkway, west of Keegan Street, and east of Brannigan Street. Four individual condominium projects are currently being developed by Toll Brothers, along with the streets and infrastructure necessary to serve these projects and others to be developed in the future. The property was originally subdivided by DR Acquisitions II, LLC, via Final Tract Map 7148 which was approved by the City Council via Resolution No. 5-01 on January 16, 2001. As part of the original Tract Map approval, the City and DR Acquisitions II entered into a Tract DeVeloper Agreement regarding Tract 7148 (Areas E [portion], F, G, and H, Dublin Ranch) on January 16, 2001. On February 8, 2001, DR Acquisition II's obligations were transferred to Toll-Dublin, LLC, via an Assignment of Tract Developer Agreement approved by the City Manager. The Tract Developer Agreement allowed the developer three (3) years to complete the tract improvements. On AugUst 5, 2003, the City council accepted the rough grading, street improvements, and traffic signals within the subdivision via City Council Resolution No. 168-03. This action also amended the Agreement to allow the develoPer additional time to complete the public landscaping work for the median islands on Dublin Boulevard, Central Parkway, and Keegan Street. The bonding that guaranteed the subdivision COPIES TO: H. Jon Paynter, Toll-Dublin, LLC I ~'L~ ITEM NO. ~ G:~DEVELOP~Dublin Ranch~rea G~Area G Tract 7148~Agst 2nd amend tr der agmt_7148.doc improvements was also reduced from $7,371,158 to $1,427,400 to cover the remaining incomplete landscaping work. The original Agreement allowed the developer until January 16, 2004, to complete all of the subdivision improvements, including the landscaping in the median islands. Although the irrigation system and plantings for the medians are substantially complete, the developer is still working with PG&E to install electrical services for each of the three irrigation controllers. The developer believes the electrical services and any remaining landscape work can be completed within the next several months. Toll- Dublin, LLC, has thus requested a second amendment to the governing Tract Developer Agreement to extend the completion date by six (6) additional months to allow time to complete the remaining landscaping work. After consulting with the developer and PG&E, Staff believes it would be appropriate to authorize a six- month time extension by approving the Resolution amending the Agreement. The original Performance Bonds in the amounts of $189,600; $206,600; $201,200; and $354,200 for a total of $951,600, and Labor and Materials Bonds in the amounts of $94,800; $103,300; $100,600; and $177,100 for a total of $475,800 will remain in effect throughout the proposed extension, and the Developer's insurance will also remain in effect. Staff recommends that the City Council adopt the Resolution approving the second amendment to the Tract Developer Agreement for Tract 7148, to extend the completion date until July 16, 2004. Page2 RESOLUTION NO. - 04 I ~I ~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING SECOND AMENDMENT TO THE TRACT DEVELOPER AGREEMENT FOR TRACT 7148, DUBLIN RANCH AREAS F, G, AND H (TOLL-DUBLIN, LLC) WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and DR Acquisitions II, LLC, entered into a Tract Developer Agreement regarding Tract 7148 (Areas E [Portion], F, G, and H, Dublin Ranch) (hereinafter referred to as AGREEMENT) on January 16, 2001; and WHEREAS, on February 8, 2001, DR Acquisitions II, LLC's obligations were transferred to Toll- Dublin, LLC, a California Limited Liability Company (hereinafter referred to as "DEVELOPER"), via an Assignment of Tract Developer Agreement authorized by the City Manager; and WHEREAS, DR Acquisitions II submitted a Letter of Credit as security to guarantee performance, which was subsequently replaced by Toll-Dublin, LLC, with bonds in amounts totaling $7,371,158.00 to secure the obligations under the original Tract Developer Agreement; and WHEREAS, the City Council accepted the rough grading, street improvements, and traffic signals via Resolution No. 168-03 on August 5, 2003; and WHEREAS, the City Council also amended the AGREEMENT via the same Resolution to reflect a reduced total security amount of $1,427,400.00 which was sufficient to guarantee the incomplete landscaping work; and WHEREAS, Section 1 of said AGREEMENT states that the DEVELOPER shall complete all improvements governed by the AGREEMENT not later than three (3) years following the date of the executiOn; and WHEREAS, time limit for completion of work as set forth Section 1 in the AGREEMENT expired on January 16, 2004; and WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend the completion date by six (6) additional months or until July 16, 2004, to allow DEVELOPER time to ~nstall electrical services to the irrigation controllers and complete other associated landscape work; aid WHEREAS, the Public Works Director has reviewed the DEVELOPER's request, and determined that it is in the City's best interest to extend the completion date of the AGREEMENT; and WHEREAS, this amendment hereby incorporates by reference all terms and conditions set forth in the AGREEMENT, and all terms and conditions which are not specifically modified by the amendment shall remain in full force and effect; NOW, THEREFORE, BE IT RESOLVED that this second amendment (attached hereto as Exhibit "A" of this Resolution) to the Tract Development Agreement for Tract 7148, Dublin Ranch Areas F, G, and H is hereby approved. BE IT FURTHER RESOLVED THAT the Mayor is authorized to execute Exhibit "A". PASSED, APPROVED AND ADOPTED this 3rd day of February, 2004. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk GSDEVELOP~Dublin Ranch~reas G~Area G Tract 7148LReso 2nd amend tr dev agmt_7148.doc 2 _ EXHIBIT ,A" OF RESOLUTION. ,-04 _. SECOND AMENDMENT TO THE TRACT DEVELOPER AGREEMENT FOR TRACT 7148 (DUBLIN- RANCH AREAS F,' G, AND I-F) BETWEEN CITY OF DUBLIN AND TOLL-DUBLIN, LLC WHEREAS, the. City of Dublin (hereinafter' referred to as "CITY") and DR Acquisitions 1I, LLC, entered into a Tract Developer Agreement regarding Tract 7148 (Areas E [Portion], F, G, and H, Dublin Ranch) (hereinafter referred to as AGREEMENT) on January 16, 200~; and WHEREAS, on February. 8, 200'1, DR Acquisitions II, LLC's obligations were transferred to Toll- Dublin, LLC, a California Limited Liability Company (hereinafter referred to as "DEVELOPER"), via an Assignment of Tract Developer Agreement authorized by the City Manager;. arid WHEREAS, DR Acquisitions II submitted a Letter of Credit as security to guarantee performance, which was subsequently replaced by Toll-Dublin, LLC, with bonds in mounts totaling $7,371,158.00 to secure the obligations under the original Tract Developer Agreement; and WHEREAS, the AGREEMENT was amended on August 5, 2003 via City Council Resolution No. 168-03 to reflect a reduced'total security amount of $1,427,400.00 which was sufficient to guarantee the incomplete land~'::caping work; and WHEREAS, Section 1 of said AGREEMENT states that the DEVELOPER shall complete all improvements governed by .the Agreement not later than three (3) years following the date of the execution; and WHEREAS, time limit for completion of work as set forth Section 1 in the AGREEMENT expired on January 16, 2004; and WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to extend the completion date by six (6) additional mOnths or until July 16, 2004 to allow the DEVELOPER time to install electrical services to the irrigation controllers .and complete other associated landscape work; and WHEREAS, this Exhibit "A" hereby incorporates by reference all terms and conditions set forth in the AGREEMENT, and all terms and conditions which are not specifically modified by the .amendment shall remain in full force and effect; NOW, THEREFORE, the parties hereto agree as follows: ComPletion time for the improvement work governed by Section 1 of the AGREEMENT is hereby extended six (6) additional months or until July 16, 2004. CITY OF DUBLIN ATTEST: Mayor EXHIBIT "A" OF RESOLUTION -2004 Toll-Dublin, LLC A California Limited Liability Company By:~ By: Its: Assistant Secretary Date: C2WINDOWS\TEMP~Exhibit 'A' 2rid amend tr.dev.agmt_7148.doc 2 CALIFORNIA ALL:PURPOSE ACKNOWLEDGMENT S~ate of California -. co..n .of Coa-WF- co Date . ,. _ ' . ~ Nama and ~e'of Officer (~,g., "Jane D~ No~ Publt¢') ' ~nally known to me ~ proved to me on the' basis of satisfactow evidence to be 'the perso~whose n~me~is/~ subscribed to the within instrument and -~t.'--~ ? - -- ----~ ~¢ t ' i" acknowledged to me: that he~ executed - 2~~ ~~ ~42~I I the same in hi--ir 'authorized ~~ ~~.C~. ~ capacity(~ and that .by his/~ ]'%~] ' c~ ~ ~~~~l~,2~y , the entity upon behalf of ~hich 'the perso¢) acted, executed'the- inst~ment. W~ESS my OPTi'O~A[ Though t,~e /nfo~a.tion be~u~ ~ not required by la~ ~ may prove valuable to pe~ons relying on the 'document and could pre~ent f~udulen~ remora7 and rea¢achmen~ of this fo~ to another document. Description of Attached Document ~tle or Type of Document: Document Date¢ Number of Pages: . · 'Signer(s) Other Than Nam~ Above: capaci~(ies).Claimed by Signer .- Signer's Name: i ~ individual ~ Corpora're Officer -- Ti.tie(s): ~ Pa~ner--~ Lim)ted ~ General ~ A~orney in Fact O' Trustee - ~ Guardian or Conse~ator ~ Othe~: Signer ~s Reuresent~ng: ¢ 1999 NB~o~al ~ Assomstle~ · 9&50 De SmqAve., P.O~ ~ 2402 - Ch~wm~h, CA 91~t~2402 - ~.nal~a~o~r/.oG Prod, NC. 5907 Reordem C~ll Totl-~ree 1-~876-682T TRACT DEVELOPER AGREEMENT BETWEEN ). CITY OF DUBLIN AND DR ACQUISITJONS"II, LLC REGARDING TRACT 7148 (AREAS E [PORTION], F, .G AND H, DUBLIN RANCH) · This agreement is made and entered into this 16 day of January, 2001, (".Effective Date~) by and between .~he CITY of Dub]in, a municipal, corporation, hereinafter referred to as "CITY"~ and -DR Acquisitions II; LLC, a Delaware corporation _heJ'einafter referred to as "DEVELOPER". RECITALS WHEREAS, 'it has been determined 'by the OITY Council of the CITY of Dublin,. State of California, tha~ DEVELOPER, the subdMder, of Tract No. 7148, consisting of ten (10) parcels, desires .to improve and' dedicate thpse public improvements (hereafter "The Improvements")'required by Cib/of DUblin Pia.n. ning. Commission Resolution No: 00,'14 adopted on March 14, 20'00, in accordance with the requirements, and conditions set forth in said resolution, 'the requirements of the SubdivisiOn Map'Act of the State of Cali,f0rnia,' the 'Subdivision Ordinance'of the CITY, and. those certain plans and specifications for said development approved by the Public Works Director on JanuarY 16,.2001, prepared by MacKay & Somps", entitled "improvement Plans- DR Area 'G; Tract 7148", and now on file in the office Of the PubliC. Works. Director, which are , he~eby~referr-ed to for a more:defin~e and d~stinct-descripfion of the work'Co be performed under this Agreement as th°bgh set for'~n at length herein; 'and WHEREAS, certain of The Improvements are required to be completed in conjunction v~th development of certaim, o_tthe.'parcels to be created by the final map; and WHEREAS, Exhibit 1 hereto summarizes the conditions of Resolutiori No. 00-14 which are applicable to-each parcel on such map; and WHEREAS, DEVELOPER intends to satisfactorily complete The'Improvements wi:thin the .time hereinafter specified, and CITY intends to accept DEVELOPER's offer(s) of dedication of The Improvements in consideration for DEVELOPER'S satisfactory performance of the terms and Conditions of.thiS Agreement: NOW, THEREFORE, in consideration of the mutuaI promises, cond[tionsand covenants.herein contained, the parties agree as foilows: 1. 'Completion Time. 'DEVELOPER wiIl commence construction of The !.mproVements and.shall complete The Improvements Work not later than three hundred sixty-five ('365) days fo|lowing issuance of the first building permit on each parcel (as to The Improvements .required for that parcel, as shown on EXhibit 1'hereto), Drovicfed that all .of The |mp~ovements shall be completed within three (3). years of.the Effective Date of this agreement. Time is cf the essence in this Agreement. Upon.-compi~tion d'fTh.e Improvements' or any portion thereof, DEVELOPER shaII furnish Cf'PC with'a complete and reproducible set,of final as~buiit plans of The .improvements, including any a uthorized .modifications. 2. Estimated Cost of improvements. The estimated cost of .constructing The Improvements required by this agreement as adjusted for inflation are shown on Exhibit 1 for'each of the .parcels; fora. total.of. Four Million Nine. HUndred FoUrteen 'Thousand One Hundred and Five Dollars $4';914,105 for.ail of The Improvements for all o3 the parcels to be created by the final map. Said amo~n't includes costs and reasonable expenses and fees which may be incurred in enforcing .the obligation, secured. 3. Security for'The Improvements. ' ~;~n,~.~er~t..iv wi~h-the-executi:en'of..t;~is 'A~r~em~nt, DEVELOPER Shall furnish Said Letter Of credit'may be reduced if and when DEVELOPER or its successor or assignee provides CITY with bonds~ .in a form satisfactorY to the CITY Attorney, as described below, as §eCurity for The Improvements required for one or more of the parcels, as shown On Exhibit I: Faithfu'i Performance..Either ~ cash deposit, ~ COrporate sure~y ' nundrs~ business in the State of Caiifomia, '0r an instzument of c~edit e~u~vaient.~ one T~act Developer A~eement Be~veen Dubt~in and DR Acquisitions Ii LLC Ja~u~q~ 9, 200~ per cent (1.00%): of the estimate 'set forth in Exhibit 1 and su~acient,to assure CITY'that .The improvements' will. be b. Labor and'Materials, Either a cash deposit, a'corporate surety bond issued by a company duiy and legally licensed to conduct a general surety business in the State Of california, or an instrument of credit equivalent to fifty per cent (5'0%) of the estimate Set'forth in Exhibit 1 'and sufficient to assure CITY that DEVELOPER'S.contractors, subcontractors, and other personS' furnishing taboJ', materials, or equipment: shall be paid therefore~ c. If required by CITY, a cash deposit, corporate surety bond, or instrumen~ of credit'sufficient to assure CiTY that the surface Water drainage of the subdMsion shall not interfere with the use of neighborin~ .property,. including, pub[ic streets and highways. CITY shall be the sole indemnitee named on any instrument required by .this Agreement. Any instrument or deposit required herein shall .conform with the provisions of. Chapter 5 of the. Subdivision Map Act. 4. .Insurance Requi.re.d.. Con. currently with the execution 'hereof, DEVELQPER shali..obtain or cause to be obtained.and filed Witl~ the CITY, all-insurance required under'this paragraph', and such insurance shall have been approved by the Administrative Services Director of CITY, or his designee, as to form, amount and carrier, Prior to the commencement of work under'this Agreement, DEVELOPER's general contractor Shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph; and such insurance shall have been approved by the- Administrative Servi.ces Dire. ctor of CITY, as to form, amount and .carrier. DEVELOPER shall not allow any contractor or.subcontractor to commence wock 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. comptetibn' of Work under this Agreement and the final acceptance, thereof by OITY. Ail requirements h~rei¢] provided shall .a. ppear either.in the body of the insurance policies or as endorsements and shall specificaity bind. the insurance carrier. a. Minimum Scope of.Insurance. Coverage shall be at least as broad ' 3) i) ~'-,,*~""~ Services O,ffL... form ...... b.., GL..000z '- ' covering comprehensive General Liability and insurance Services Office form number GL 0404 cove.ring Bread Form T~ct Deveiope? A~reement., Between D.ub'iin and DP~ Acquisitio~,s '1[, __~.,~f" JsnuaW 9, 200I. ii) insurance .Services' Office-form r~umber CA 0001-(Ed.' 1/78). covering AutomObile Liability, co~ie I "any auto""and endorsement CA 0025. iii) 'Workers" C'ompenCation 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 than: .il General Liability: '$1,000,000. combi'ned single limit' per occurrence for bodily injurY,.personal injury, and property damage. If commercial General Liabil!ty 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· 6ccurrence limit. ii) - Automobile Liability..: '$1,000,000 combined single limit per accident for bodily, injury and property damage... iii) 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-ln'~urance Retentions. Any. deductibles or Self-insured rei~entions must be declared to and aCproved by'the CITY..At the option of the .CITY, either the insurer shall reduce or eliminate 'such deductibles-or'self-insured retentions, as.i'espect~ the CITY, its officers,' officials and employees; or the DEVELOPER Shall procure a bond guaranteeing payment of losses arid retorted investigations, ctaim administration and defense expenses. d. Other Insurance Provisions. The policies are to.contain, or be endorsed.to' contain, the following provisions: i) General Liability and Automobile Liability Coveraees. u.~ T its agents,-='-'"'~ employees a) The and volunteers s'hall.be named as additional insureds as respects: fisbitity a'fisin~ out of activities b~oducts ~nd co..m~lete~ o~e~on~ of the Q Trssi Developer :~= '.~n~, B=rcc'~=n Dublin and DR Acau. isiti~s t,,. L'LC Jsnus~' 2001 the DEVELOPER; or' automobiles, owned,' teased, hired orborrowed by.the DEVELOPER. The coverage shall contain no special limitations 'on the scope of the protection afforded to the, C.[TY; its , officers, o.fficiats, employees or volunteers, -. b) The.DEVELOPER's insurance coverage shall be primary insurance as r~spects 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 shal'l 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 shalI 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. ii) Workers' Compensation and Employers Liability Coverage, The insurer shall agree to waive all rights.of subrogation against the cITY, its officers, offic.iais, employees and volunteers for losses arising from work. performed by the DEVELOPER for the CITY. iii) Alt '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' prio[ written notice by certified mail, re~urn receipt requested, has been given to the CITY. · a) "Accetatabili .fy of Insurers. insurance is to be Placed with insurers with a Bests' rating of no [ess than A:VlI. b) Verification of Coverage. :DEVELOPER shall fumish 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 c.ontra~:tor'shall include ail subcontractors' as insureds, under its policies or shall obtain separate certificates and endorsements for each subcontractor. Alt coverages for subcontractors shall be subject to all of the requirements stated herein. " 5. 'Work Performance and 'Guarantee. Except as-other~,is.e 'expressl.y provided in this Agreement, and excepting only items .of routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER guarantees ali work executed by DEVELOPER and/or DEVELOPER's agents, and all supplies, materials and devices, of whatsoever nature incorporated in, or b. ttached 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 (t) year after initial acceptance of the entire.work by-CITY. DEVELOPER shall repair o¢ 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 pedod wit.h0ut eXpense or charge of any nature whatsoever to CITY. DEVELOPER further covenants and .agrees that when 'defects in design, workmanship and materials actually.app.ear during the one-year guarantee period, and ha~e been corrected, the guarantee pedod shall automatically be extended for an additional Year to insure that Such defects have actually been corrected.' . In' the event the DEVELOPER. Shall fait 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.;[he 'right, but shall not be obligated., to repair o'r obtain the repair of the defect, and DEVELOPER shall pay to CiTY on demand ali'costs and expense of Such repair, Notwithstanding anything herein to the.cootrary, in the event that any a=,e~.t in workmanshi.2 or material covered by the foregoing guarantee resui+s ~,= ....... ~u the ~ub[ic ~ '~. safety. we fa.re. C~TY sha[! h~v= the. ri.~ht to immediatei).( ~=.,--i~ -.-~-=:,== to be r=~=h-=.~ such repair. The foregoing statement relating to hazards to health and safety shall be deemed .to include either tempora.ry or permanent repairs whiCh may,be requi'red as determined-in the sole discretion and judgment of CITY. :If CITY, at its Sole option., makes or causes to.bemade the necessary .repairs or repiacements o~- performs the neoessary work, DEVELOPER'shall pay, .in addition to actual costs and expenses of such repair or work, fifty percent (.50%) of such costs and expen.§.es for overhead and interest at the maximum rate of interest permitted by taw accruing 'thirty (.30) days from the' date of billing for such work or re.pair~. 8. tnsnection 'of the Work; DEVELOPER shall, guarantee free access ,to ClT~-through its Public Works DirectodCity .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 alt 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 OlTyFin strict accordance with the improvement plans and specifications. 7. Agreement. Assignment. .. Th~s.Agreement !~hall not be assigned' by DEVELOPER without the written consent of CITY. if DEVELOPER sells any of the parcels to be created by the final map to another develoPer, CITY shail approve an assignment of the obligation for those lmprogements related to that parcel, as shown on Exhibit 1, provided that bonds and' insurance as described above are first provided to CITY and a written assignment of'this agreement'is approved by the Ci~ Manager; 8. Abandonment of Work. Neither DEVELOPER nor any of:DEVELOPER's agents orc. ontr. actors are. or shall be considered to be agents of CITY in connection with.the performance of · ,- BEV:ELOPER's obligations under this AgVeement. If DEVELOPER refuses or fails tO obtain prosecution of the work, or.anY severable .part thereof, with such diligence as wilt insure its completion within the time specified, or any extension th~ereof, 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 DEVELOPEPJs' creditors, or if a receiver shouid be appointed, Or if DEVELOPER, or any of DEVELOPER's contractors, subcontractors, agents or empioyees should violate any of the provisions of this Agreement, the C~TY DEVELOPER's sure~, vr holder of other securi~, of breach. . of this Agreement. or of any. , r .... Develooer Aareement Be~¢een Dublin and DR Acauisitions Ii, 'L~ C Janumm; 9. '~001 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 se~ing 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 suct~ election, CITY may take over the work and prosecu, te the same to c0mpletion,.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 liabiJ.ity for so doing, may take possession of, and utilize in completing.the world, such materials, appliances, plant and Other property belonging to DEVELOPER as may be on the site of the work and necessary therefore. All notices herein, required shall be in writing, and delivered in person or sent by registered mail, postage prepaid. Notices required-to be given to CiTY shall be addressed as follows': City Manager 'City of Dublin P.O. Box 2'3.40 Dublin; CA 94'568 'Notices required .to be given 'to DEVELOPER shall, be addressed as follows: DR Acquisitio. ns il, LLC c/o Martin W, lnderbitzen '- " 7077 Koll Center .Parkway, Suite 120 ' Pleasanton, CA 94566 Notices .required to be given to any surety of DEVELOPER or DEVELOPER's successors provided to .CITY when CITY accepts a surety bond: Any party' or the s. urety may change Such address.by'notice in writing to- the- - other party-and thereaf-~r notices shall be addressed and transmitted to the new ~addreSs. .Conc.u. rrentiy with the execution of this Agreement, DEVEL©PER has executed and has caused to.be-acknowledged an abstract of this Agreement. DEVELOPER agrees.CIT"Y', may.record said abstract-in the Official Records of AIameds Count. At all times prior to the finaJ accepts-nce of the work by CtTY, 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 Cl ~--Y'.- 'for dwellings located within the tract shall 'not be construed in. any manner to,constitute a partial'or final.acceptance or approval df any or ali such improvements by CITY. DEVELOPER agrees that CiTY's Building Official may withhold 'the issuance of building or occupancy permits when the work or its progress may' substantially and/:or' detrimentally affect public health 'and safety.' 10. Safety .Devices. . DEVELOPER.shall provide and maintain such'gu?ds, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the.tract site as may be .necessary to prevent accii:tents 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 ~afety devices. At the end' of all work to be performed. under this Agreement, all fences, barriers, regulatory signs, Warning lights, and other liafety devices (-except such safety, items as may be shown '.on .the plans and inct-uded .in the itemS.of work) shall be removed.from site of the work by .the DEVELOPER, and the entire Site left clean sad ordedy. 11. Accel~tance of'Work. UPon notice of the completion of all tract work and the delivery of a set of final as-bullt plans to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine.the tract work witho, ut. 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 a. ndl upon such acceptance, shall noilly DEVELOPER or his designatedagents of such acceptance: 12. Patent and. Copyright CoSts. in the event that said plans and specifications require.the use of any material; 'process'or publication which is subject to a duly registered p, atertt 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 ~/he use of said patented or copyrighted material, process or publication. 13. Alterations in Plans and Specifications. Any alteration or alterations'made in the pis'ns and specifications which are a .Part of this AG~ r_~m,.n~~ :, ~ or any provision o~-' this A_~reement shat! not operate io release ~art he.r..eof, and consent to make such alterations is be~e~v c~iven, and the. ~'uFeties to said' bends hereby waive the provisions of Section.'2819 of the Civil: Cbde of the State ') of California. a. ' DEVELOPER Primarily Liabl.e. DEVELOPER hereby warrants that the design and construction of The Improvements will not adversely affect any portion of adjacent properties and that ali work'will be performed in a proper manner. DEVELOPER agrees to indemnify, de/eh'd, releasei and save harmless CITY, and each' of its elective and appoin, tive boa.rds, commissions, officers agents and employees, 'from and against any and all loss, claims, suits, liabilities, actichs,. 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 obliga~tions hereunder; provided as follows: i) That CITY does not, and shall not, waive any rights against DEVELOPER which it may have by reason of the.i~foresaid hold. i~armless 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. ii) That 'the aforesaid hold harmless agreement by 'DEVELOPER shall apply to ail damages and claims for: damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this'paragraph, regardless of Whether or not CITY'has prepared, supplied, or approved of plan. s and/er specifi'cati6ns 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 ciaims for . damages. 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 desi.gn 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'liabfe to the CITY for the corrective work required. c. . Litbation Exoenses.'~ in the event that Jegal action is instituted by either paC. v :to this Agreement, :and said action seeks damages for breach of this =v=nt iudament i~ =~,¢=r=~ in said action, the orevailin¢. ~a~; shah b~ entitled f~' entitled to recover' its attorney's fees. and Costs in any action against DEVELOPER's surety On the bonds provided under paragraph 3. 15. StOrm Drain Improvements. Upon submission of an- enginee,Cs report, fee/charge analysis and.ether related documents, t6 the satisfaction of the Director of Public Works, as provided in 'Condition No, 88 of Resolution No. 00-14, the Director of Public Works shall .submit a report to the City Council for approval-of a be'nef'r~ or fee district~ 'CITY shall favorably consider creation of a district, as described in COndition No. 88. 16. Traffic Signals. to the extent authorized by taw; CiTY will make every effort to require the developer of the property located westerly of Tract No. 7148 to pay to CITY one-half of the costsj incurred by DEVELOPER for installation of traffic sign. als at the corner of Central Parkway and Collector A and Dublin Boulevard and Collector A (which Signals are required to be .installed by' ConditiOn 104.a. ahd. 104.b of Resolution No. 00-I4). 'in the event CITY is able to imPose such 'a requi'¢ement, CITY will pay any such'monies received by CITY to DEVELOPER or-its assignee, if this agreement is assigned.' 171 Recitals. ' 'The foregoing .Recitals are true and correct: and are made a part he~-eof. 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: ATTEST: Approved ..as. to Form: E!izabefh H. Silver, City Attorney · .DEVELO PER: DR Acquisitions !I, LLC, a Delaware limited liability company Date: Name: ~/~ Its: . ~~