HomeMy WebLinkAboutItem 4.04 AmdAgmtDubRchTr7326
CITY CLERK
File # D~Ø]Ø]-[6;][Q]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 17, 2004
SUBJECT:
Second Amendment to Tract Developer Agreement, Tract 7326
Dublin Ranch Area G, Neighborhood H-I (Toll-Dublin, LLC)
Report Prepared by: Melissa Morton, Public Works Director
ATTACHMENTS:
1)
2)
3)
Resolution Amending the Tract Developer Agreement
for Tract 7326, together with Exhibit "A" of Resolution
Original Tract Developer Agreement with Toll-Dublin, LLC,
for Tract 7326 improvements
Location Map
RECOMMENDATI0;(l/N\: Adopt Resolution extending the completion date of the Tract
Developer Agreement for Tract 7326 an additional two years, or
until September 3, 2006
FINANCIAL STATEMENT:
Toll-Dublin, LLC, has provided a Performance Bond and a Labor
and Materials Bond to guarantee construction of public right-of-
way improvements, and required site improvements, and will pay
the cost ofthe associated construction inspection.
DESCRIPTION: On September 3, 2002, the City Council, via Resolution No. 157-02,
authorized the Mayor to execute a Tract Developer Agreement with Toll-Dublin, LLC, for public
right-of-way and site improvements associated with Tract 7326. This subdivision is comprised of 289
condominiums located at the northeast corner of Dublin Boulevard and Brannigan Street. The original
Agreement allowed the developer 365 calendar days to complete the improvements. The Agreement was
subsequently amended via City Council Resolution No. 183-03 to extend the completion date to
September 3, 2004.
Although the work is proceeding in accordance with the approved plans and specifications, the
improvements will not be finished within the timeframe allowed by the agreement. Of the 13
construction phases, 5 have now been completed. Building Permits have been issued for 10 of the 13
buildings, although only 65 of the 289 units have been finalized and occupied. Toll-Dublin, LLC, has
thus requested a second amendment to the governing Tract Developer Agreements to extend the
completion date by an additional two years to allow time to complete the remaining work.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
COPIES TO: Tony Craig, Toll-Dublin, LLC ~/~,
I rib:;'" ITEMNO.~
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The Public Works Director has determined that it is in the best interest of the City to extend the
Agreement. The improvements will continue to be guaranteed by the original Performance Bond and
Labor and Materials Bond, and the Developer's insurance will remain in effect as required by the original
Agreement.
Staff recommends that the City Council adopt the Resolution approving the second amendment to the
Tract Developer Agreement for Tract 7326 to extend the completion date an additional two years, or until
September 3, 2006.
Page 2 ðb;J..
1 t:616
RESOLUTION NO. ~ 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING SECOND AMENDMENT TO THE
TRACT DEVELOPER AGREEMENT FOR TRACT 7326
(DUBLIN RANCH AREA G, NEIGHBORHOOD H-l
BY TOLL-DUBLIN, LLC)
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll-Dublin, LLC
(hereinafter referred to as "DEVELOPER"), entered into a Tract Developer Agreement (hereinafter
referred to as "AGREEMENT") on September 3, 2002; and
WHEREAS, Section 1 of said AGREEMENT states that DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 365 days following the date of execution;
and
WHEREAS, the AGREEMENT was amended via City Council Resolution No. 183-03 to
extend the completion date to September 3,2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT
to extend the completion date by an additional two years, or until September 3, 2006, to allow the
DEVELOPER time to complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date; 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 this
Amendment shall remain in full force and effect;
NOW, THEREFORE, BE IT RESOLVED that the second amendment (attached hereto as
Exhibit "A" of this Resolution) to the Tract Developer Agreement for Tract 7326 is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute Exhibit "A".
PASSED, APPROVED AND ADOPTED this 17th day of August, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
City Clerk
ATTACHMENT
~ ...11...D'-f
,:,y
ATTEST:
Mayor
(~uo J?
EXHIBIT "A" OF
RESOLUTION NO. -04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
**********
SECOND AMENDMENT TO TRACT DEVELOPER AGREEMENT
FOR TRACT 7326 (DUBLIN RANCH AREA G, NEIGHBORHOOD H-l)
BETWEEN CITY OF DUBLIN AND TOLL-DUBLIN, LLC
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll-Dublin, LLC (hereinafter
referred to as "DEVELOPER"), entered into a Tract Developer Agreement (hereinafter referred to as
AGREEMENT) on September 3,2002; and
WHEREAS, Section 1 of said AGREEMENT states that the DEVELOPER shall complete all
improvements governed by the AGREEMENT not later than 365 days following the date of the execution; and
WHEREAS, the AGREEMENT was previously amended via City Council Resolution No. 183~03 to
extend the completion date to September 3,2004; and
WHEREAS, the DEVELOPER has requested a second amendment to the AGREEMENT to
extend the completion date by an additional two years or until September 3, 2006 to allow the DEVELOPER time
to complete the remaining work; and
WHEREAS, it is in the best interest of the CITY to extend the completion date ofthe 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 this Amendment shall remain
in full force and effect;
NOW, THEREFORE, the parties hereto agree as follows:
Completion time for the improvement work governed by the AGREEMENT is hereby extended to
September 3, 2006.
CITY OF DUBLIN
Toll-Dublin, LLC
a California Limited Liability Company
By: ~ :::¡-¡e¡-O<f
Its: ssistant Secre Date
Mayor
Date:
Print Name:
~.J.~
ATTEST:
City Clerk
By:
Its: Assistant Secretary
Date
Date:
Print Name:
G:\DEVELOP\Dublin Ranch\Area G\Hl - Tract 7326\Ex 'A' reso 2nd amend tr dev agmt~ Tr 7326.doc
EXHIBIT ~
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
Co~ Cos1R
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Date
On
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personally appeared
~rsonally known to me
o proved to me on the basis of satisfactory
evidence
.. '.- :::.=if";', - J
ï. Notary PubIc . CaItomla f
J ConfIa Cotta County f~
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to be the person(~whose name(~ islare
subscribed to the within instrument and
acknowledged to me that he/~he¡tRcy executed
the same in his/he#tftefr authorized
capacity(iEiSf, and that by his¡'hcl/lIlt:::ir
signature(ðÝ on the instrument the person(,sf, or
the entity upon behalf of which the person(s)'
acted, executed the instrument.
, Place Notary Seal Abova
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o other:
RIGHT THUMBPRINT
OF SIGNER
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TOp of thumb here
Signer Is Representing:
C 1999 National Notary Aasoclatk>n . 9350 00 Soto Avo., P.O, Box 2402 . Chatoworth, CA 91313-2402 . www,naUonalnoUlry.org
Prod. No. ~907
Roordar. Call Toll-Fro. 1-800-876-6827
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CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreement is made and entered into this3~day ot0E:.P-r. ,2002, by and
between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and
Toll-Dublin, LLC, a California Limited Liability Company, hereinafter referred to as
"DEVELOPER" .
RECITALS
WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State
of California, that DEVELOPER, the subdivider of Tract No. 7326, desires to improve and
dedicate those public improvements and other required site improvements (hereafter "The
Improvements") required by City of Dublin Planning Commission Resolution No. 02-03
adopted on 1/08/02 in accordance with the requirements and conditions set forth in said
resolution, the requirements of the Subdivision Map Act of the State of California, the
Subdivision Ordinance of the CITY, and those certain plans and specifications for said
development approved by CITY on May 30,2002, titled "Improvement Plans - Dublin Ranch
Area G - Site H1, Tract 7326, May 2002" (Sheets 1 through 22) by MacKay & Somps, titled
"Landscape Improvement Plans for Dublin Ranch H-1" prepared by Rose Associates and
approved by City inSfmmerlt, 2002, and "Joint Trench Composite Plans, Tract 7326,
Neighborhood H~ 1, Area G" prepared by Robert Gray & Associates and approved by City on
ÂNiu!T liR ,2002, said plans are 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 Improvements within
the time hereinafter specified, and CITY intends to accept DEVELOPER's offer(s) of
dedication of The Improvements in consideration for DEVELOPER's satisfactory performance
of the terms and conditions of this Agreement:
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants herein contained, the parties agree as follows:
1. Completion Time.
DEVELOPER will commence construction of The Improvements within thirty (30) days
following the date on which CITY executes this Agreement. DEVELOPER shall complete
said work not later than three hundred sixty-five (365) days 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 of The Improvements, including
any authorized modifications.
)
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2. Estimated Cost of Improvements.
The estimated cost of constructing The Improvements required by this agreement as
adjusted for inflation is agreed to be $1,085,830 for site improvements and $538,485 for
landscaping for a total cost of $1 ,624,315.00. Said amount includes costs and reasonable
expenses and fees which may be incurred in enforcing the obligation secured.
3. Bonds Furnished.
Concurrently with the execution of this Agreement, DEVELOPER shall furnish CITY-
with the following security in a form satisfactory to the CITY Attorney:
A. Faithful Performance. Either a cash deposit, a corporate surety bond issued
by a company duly and legally licensed to conduct a general surety business in the State of
California, or an instrument of credit equivalent to one hundred per cent (100%) of the ,
estimate set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be
satisfactorily completed.
B. Labor and Materials. Either a cash deposit, a corporate surety bond issued
by a company duly and legally licensed to conduct a general surety business in the State of
California, or an instrument of credit equivalent to one-hundred per cent (100%) of the
estimate set forth in Paragraph 2 and sufficient to assure CITY that DEVELOPER'S
contractors, subcontractors, and other persons furnishing labor, materials, or equipment
) shall be paid therefor.
C. If required by CITY, a cash deposit, corporate surety bond, or instrument of
credit sufficient to assure CITY that the surface water drainage of the subdivision shall not
interfere with the use of neighboring property, including public streets and highways.
CITY shall be the sole indemnitee named on any instrument required by this
Agreement. Any instrument or deposit required herein shall conform with the provisions of
Chapter 5 of the Subdivision Map Act.
4. Insurance Required.
Concurrently with the execution hereof, DEVELOPER shall obtain or cause to be
obtained and filed with 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 Services Director of CITY, as
to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to
commence work on this contract or subcontract until all insurance required for DEVELOPER
and DEVELOPER's general contractor shall have been so obtained and approved. Said
insurance shall be maintained in full force and effect until the completion of work under this
Agreement and the final acceptance thereof by CITY. All requirements herein provided shall
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appear either in the body of the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) Insurance Services Office form number GL 0002 (Ed. 1/73) covering
comprehensive General Liability and Insurance Services Office form number
GL 0404 covering Broad Form Comprehensive General Liability; or Insurance
Services Office Commercial General Liability coverage ("occurrence" form
CG 0001.)
2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering
Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3) Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
B. Minimum Limits of Insurance. DEVELOPER shall maintain limits no less
than:
1) General Liability: $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage. If commercial General
Liability Insurance or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to this project/location or the
general aggregate limit shall be twice the required occurrence limit.
2) Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
3) Workers' Compensation and Employers Liability: Workers'
compensation limits as required by the Labor Code of the State of California
and Employers Liability limits of $1 ,000,000 per accident.
C. Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the CITY. At the option of the
CITY, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its officers, officials and employees; or the
DEVELOPER shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1) General Liability and Automobile Liability CoveraQes.
)
a) The CITY, its officers, agents, officials, employees and volunteers
shall be named as additional insureds as respects: liability arising
out of activities performed by or on behalf of the DEVELOPER;
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products and completed operations of the DEVELOPER;
premises owned, occupied or used by the DEVELOPER; or
automobiles owned, leased, hired o~ borrowed by the
DEVELOPER. The coverage shall contain no special limitations
on the scope of the protection afforded to the CITY, its officers,
officials, employees or volunteers.
b) The DEVELOPER's insurance coverage shall be primary
insurance as respects the CITY, its officers, officials, employees
and volunteers. Any insurance or self-insurance maintained by
the CITY, its officers, officials, employees or volunteers shall be
excess of the DEVELOPER's insurance and shall not contribute
with it.
c) Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the CITY, its officers, officials,
employees or volunteers.
d) The DEVELOPER's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability.
2) Workers' Compensation and Emplovers Liability Coveraqe.
)
The insurer shall agree to waive all rights of subrogation against the
CITY, its officers, officials, employees and volunteers for losses arising from
work performed by the DEVELOPER for the CITY.
3) All CoveraQes.
Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, cancelled by either party, reduced in
coverage or in limits except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the CITY.
a) Acceptabilitvof Insurers. Insurance is to be placed with insurers
with a Bests' rating of no less than A:VII.
)
b) Verification of Coveraqe. DEVELOPER shall furnish CITY with
certificates of insurance and with original endorsements effecting
coverage required by this clause. The certificates and
endorsements for each insurance policy are to be signed by a
person authorized by that insurer to bind coverage on its behalf.
The certificates and endorsements are to be received and
approved by the CITY before work commences. The CITY
reserves the right to require complete, certified copies of all
required insurance policies, at any time.
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c) Subcontractors. DEVELOPER and/or DEVELOPER's general
contractor shall include all subcontractors as insureds under its
policies or shall obtain separate certificates and endorsements for
each subcontractor. All coverages for subcontractors shall be
subject to all of the requirements stated herein.
5. Work Performance and Guarantee.
Except as otherwise expressly provided in this Agreement, and excepting only items of
routine maintenance, ordinary wear and tear and unusual abuse or neglect, DEVELOPER
guarantees all work executed by DEVELOPER and/or DEVELOPER's agents, and all
supplies, materials and devices of whatsoever nature incorporated in, or attached to the
work, or otherwise delivered to CITY as a part of the work pursuant to the Agreement, to be
free of all defects of workmanship and materials for a period of one (1) year after initial
acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all such
work or material, together with all or any other work or materials which may be displaced or
damaged in so doing, that may prove defective in workmanship or material within said one-
year guarantee period without expense or charge of any nature whatsoever to CITY.
DEVELOPER further covenants and agrees that when defects in design, workmanship and
materials actually appear during the one-year guarantee period, and have been corrected,
the guarantee period shall automatically be extended for an additional year to insure that
such defects have actually been corrected.
. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing
) guarantee within thirty (30) days time, after being notified of the defect in writing, CITY shall
have the right, but shall not be obligated, to repair or obtain the repair of the defect, and
DEVELOPER shall pay to CITY on demand all costs and expense of such repair.
Notwithstanding anything herein to the contrary, in the event that any defect in workmanship
or material covered by the foregoing guarantee results in a condition which constitutes an
immediate hazard to the public health, safety, or welfare, CITY shall have the right to
immediately repair, or cause to be repaired, such defect, and DEVELOPER shall pay to CITY
on demand all costs and expense of such repair. The foregoing statement relating to
hazards to health and safety shall be deemed to include either temporary or permanent
repairs which may be required as determined in the sole discretion and judgment of CITY.
If CITY, at its sole option, makes or causes to be made the necessary repairs or
replacements or performs the necessary work, DEVELOPER shall pay, in addition to actual
costs and expenses of such' repair or work, fifty percent (50%) of such costs and expenses
for overhead and interest at the maximum râte of interest permitted by law accruing thirty (30)
days from the date of billing for such work or repairs.
6. 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 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
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DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict
accordance with the improvement plans and specifications.
7. Aqreement Assiqnment.
This Agreement shall not be assigned by DEVELOPER without the written consent of
CITY.
8. Abandonment of Work.
Neither DEVELOPER nor any of DEVELOPER's agents or contractors are or shall be
considered to be agents of CITY in connection with the performance of DEVELOPER's
obligations under this Agreement.
If DEVELOPER refuses or fails to obtain prosecution of the work, or any severable
part thereof, with such diligence as will insure its completion within the time specified, or any
extension thereof, or fails to obtain completion of said work within such time, or if
DEVELOPER should be adjudged as bankrupt, or should make a general assignment for the
benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER,
or any of DEVELOPER's contractors, subcontractors, agents or employees should violate
any of the provisions of this Agreement, the CITY through its Public Works Director may
serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of
breach of this Agreement, or of any portion, thereof, and default of DEVELOPER..
)
In the event of any such notice of breach of this Agreement, DEVELOPER's surety
shall have the duty to take over and complete The Improvements herein specified; provided,
however, that if the surety, within thirty (30) days after the serving upon it of such notice of
breach, does not give CITY written notice of its intention to take over the performance of the
contract, and does not commence performance thereof within thirty (30) days after notice to
CITY of such election, CITY may take over the work and prosecute the. same to completion,
by contract or by any other method CITY may deem advisable, for the account and at the
expense of DEVELOPER and DEVELOPER's surety shall be liable to CITY for any damages
and/or reasonable and documented excess costs occasioned by CITY thereby; and, in such
event, CITY, without liability for so doing, may take possession of, and utilizè in completing
the work, such materials, appliances, plant and other property belonging to DEVELOPER as
may be on the site of the work and necessary therefor.
All notices herein required shall be in writing, and delivered in person or sent by
registered mail, postage prepaid.
Notices required to be given to CITY shall be addressed as follows:
) .
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
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Notices required to be given to DEVELOPER shall be addressed as follows:
TolI~Dublin, LLC
c/o Toll Brothers, Inc., Northern California Division
Attention:
100 Park Place, Suite 140
San Ramon, CA 94583
(contact name)
Notices required to be given surety of DEVELOPER shall be addressed as follows:
Company Name: ?Ju- LoI1 j-¡;'¡ -GM ~l ~1A>~' ~~
Attention: c/o <;/".;, 1-<; s r ¿,'"'~ --:;;-Ih-/"'-"'-' Dsl-ro;f
Street Address: Z ¡:J t:- 0 I ~ oih L-e /--:J ¿....rk
City: ¡:/'e'--o/ì ,State: r:='A- ,Zip Code: / 13ù
,'.) Any party or the surety may change such address by notice in writing to the other party
and thereafter notices shall be addressed and transmitted to the new address.
Concurrently with the execution of this Agreement, DEVELOPER has executed and
has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CITY
may record said abstract in the Official Records of Alameda County.
9. 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.
)
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10. 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.
11. Acceptance of Work.
Upon notice of the completion of all tract work and the delivery of a set of final as-built
plans to CITY by DEVELOPER, CITY, through its City Engineer or his designated
representative, shall examine the tract work without delay, and, if found to be in accordance
with said plans and specifications and this Agreement, shall recommend acceptance of the
work to the City Council and, upon such acceptance, shall notify DEVELOPER or his
designated agents of such acceptance.
12. Patent and Copyriqht Costs.
In the event that said plans and specifications require the use of any material, process
or publication which is subject to a duly registered patent or copyright, DEVELOPER shall be
liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including
attorneys' fees and court costs, which may result from the use of said patented or copyrighted
material, process or publication.
13. 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.
14. Liabilitv.
)
A. DEVELOPER Primarily Liable. DEVELOPER hereby warrants that the
design and construction of The Improve'ments will not adversely affect any portion of
adjacent properties and that all work will be performed in a proper manner.
DEVELOPER agrees to indemnify, defend, release, and save harmless CITY, and
each of its· elective and appointive boards, commissions, officers agents and
empl9yees, from and against any and all loss, claims, suits, liabilities, actions,
damages, or causes of action of every kind, nature and description, directly or
indirectly arising from an act or omission of DEVELOPER, its employees, agents, or
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independent contractors in connection with DEVELOPER'S actions and obligations
) hereunder; provided as follows;
1) That CITY does not, and shall not, waive any rights against
DEVELOPER which it may have by reason of the aforesaid hold harmless
agreement, because of the acceptance by CITY, or the deposit with CITY by
DEVELOPER, of any of the insurance policies described in Paragraph 4 hereof.
2) That the aforesaid hold harmless agreement by DEVELOPER shall
apply to all damages and claims for damages of every kind suffered, or alleged
to have been suffered, by reason of any of the aforesaid operations referred to
in this paragraph, regardless of whether or not CITY has prepared, supplied, or
approved of plans and/or specifications for the subdivision, or regardless of
whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
3) Desiqn Defect. If, in the opinion of the CITY, a design defect in the
work of improvement becomes apparent during the course of construction, or
within one (1) year following acceptance by the CITY of the improvements, and
said design defect, in the opinion of the CITY, may substantially impair the
public health and safety, DEVELOPER shall, upon order by the CITY, correct
said design defect at his sole cost and expense, and the sureties under the
Faithful Performance and Labor and Materials Bonds shall be liable to the CITY
for the corrective work required.
4) Litiqation Expenses. In the event that legal action is instituted by
either party to this Agreement, and said action seeks damages for breach of
this Agreement or seeks to specifically enforce the terms of this Agreement,
and, in the event judgment is entered in said action, the prevailing party shall be
entitled to recover its attorneys' fees and court costs. If CITY is the prevailing
party, CITY shall also be entitled to recover its attorney's fees and costs in any
action against DEVELOPER's surety on the bonds provided under paragraph 3.
15. Recitals.
The foregoing Recitals are true and correct and are made a part hereof.
)
G:\DEVELOP\Dublln Ranch\Areas F-G-H\H1 . Tract 7326\Tract Developer Agmt.doc
Page 9
13z5bIS
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:
ATTEST:
DEVELOPER
By:
/,é /11. r&4ut--
æ~~ í1I. Nél-SDnJ
Typed or Printed Name
~~/~~r (. P.
Title
EHS:rja
May 4, 1999
G:\DEVELOP\Dublin Ranch\Areas F-G-H\H1 - Tract 7326\Tract Developer Agmt.doc
)
G:\DEVELOP\Dublin Ranch\Areas F-G-H\H1 - Tract 7326\Tract Developer Agmt.doc
Page 10
)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
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Cou nty of
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Name and TItle at Officer (e.g., "Jane Dee. Notary Public")
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Name(s) of Slgner(s)
~personally known to me
o proved to me on the basis of satisfactory
evidence
On %... '2.. "2 -6 "2 ,before me,
Date .
personally appeared ~.... G'" ø...r ~
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to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
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Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
i'
Document Date:
Signer(s) Other'Than Named Above:
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Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 neral
o Attorney in Fact
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RIGHT THUMBPRINT
OF SIGNER
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@ 1997 National Notary Association' 9350 De Soto Ava., P.O. Box 2402 . Chataworth, CA 91313-2402
Prod. No. 5907
Reorder: Call TOil-Free 1-800-876,6827
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