HomeMy WebLinkAboutItem 4.04 TDADubRchTr7136
CITY CLERK
File # 600-60
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 2, 2004
SUBJECT:
ATTACHMENTS:
RECOMMENDATION:
~
FINANCIAL STATEMENT:
Amendment to Tract Developer Agreement and Partial Acceptance
of Landscape Improvements Associated with Tract 7136, Dublin
Ranch Area A, Neighborhood A-I (Toll Brothers, Inc.)
Report Prepared by: Melissa Morton, Public Works Director
1)
2)
3)
Resolution Amending Tract Developer Agreement, together
with attached Exhibit "A"
Original Tract Developer Agreement for Tract 7136
Location Map
Adopt Resolution amending the Tract Developer Agreement for
Landscape to release Toll Brothers, Inc., from obligations for the
completed landscaping work governed by the original agreement,
and to reduce the improvement security to an amount necessary to
assure that the landscaping work within remaining parcels is
completed as originally required with Tract 7136, Dublin Ranch
Area A, Neighborhood A-I.
Toll Brothers, Inc., (Toll Brothers) has provided a Maintenance
Bond in the amount of $273,575 to replace the Performance and
Labor and Materials Bond that guaranteed the landscaping
improvements for the completed work. Said Maintenance Bond will
assure the correction of latent defects for one year following
acceptance.
The remaining landscape work to be performed by Toll Brothers
will continue to be guaranteed by the original Tract Developer
Agreement, as amended. The amendment will reduce the required
security amount to $40,000, which is sufficient to assure the
developer's performance.
Maintenance of the accepted parkstrip landscaping in the public
right-of-way on Fallon Road and Signal Hill Drive will be
performed by the Dublin Ranch Golf Club Homeowner's
Association.
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COPIES TO: H. Jon Paynter (Toll Brothers)
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ITEM NO.
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DESCRIPTION: Toll Brothers has requested that the City amend the Tract Developer
Agreement that governs the landscaping improvements within Tract 7136, Dublin Ranch Area A,
Neighborhood A-I, to accomplish the following:
· Release Toll Brothers from the obligations for the completed landscaping work governed by the
original Tract Developer Agreement by accepting these improvements as complete. Completed
landscaping improvements include Kingsmill Terrace, Turnberry Drive and all other private streets
within the Tract, including the parkstrips and median islands on Signal Hill Drive, and the
parkstrip on the west side of Fallon Road associated with Tract 7252.
· Reduce the improvement security to an amount necessary to assure that the landscape work within
the common pocket areas of Parcels A, B, C and D within Tract 7136 is completed. Staff is
recommending that the existing Performance Bond and Labor and Materials Bond, each in the
amount of$I,094,300, be reduced to $40,000.
The original work was governed by two separate Tract Developer Agreements, one for Street
Improvements and one for Landscaping, both executed on March 19, 2002, via City Council Resolution
No. 32-02. These agreements were previously amended via City Council Resolution Nos. 44-03 and
45-03 on March 18,2003, and via City Council Resolution Nos. 41-04 and 42-04 on March 16,2004, to
extend the completion date to March 19, 2005. The landscaping work is now complete, with the
exception of the landscaping within Parcels A, B, C and D associated with Tract 7136. The irrigation
wiring and pipes for these four Parcels must be relocated within the Tract boundary so as to not encroach
on the property owned by the Dublin Ranch Golf Course. A separate irrigation meter and controller
connecting these parcels will also be installed. The developer has assured the City that this remaining
work will be completed by March 19,2005. The street improvement work is nearing completion and will
be accepted separately.
At the time that the City and Toll Brothers executed the Tract Developer Agreement governing landscape
improvements for Tract 7136, the developer provided a Performance Bond and a Labor and Materials
Bond, each in the amount of $1,094,300, to guarantee performance of the work. Staff is recommending
that these bonds be replaced in accordance with the authority contained in §66499.7 of the Government
Code, as follows:
· A Maintenance Bond in an amount necessary to guarantee the accepted work for a one-year period
following acceptance. The developer has provided said Bond in the amount of $273,575 for the
landscaping, which is 25% of the original bond amount for the completed improvements, and
which is sufficient to warranty the improvements for a one-year period after acceptance.
· A replacement Performance Bond and a Labor and Materials Bond, each in the amount of $40,000,
have been provided to assure that the work within Parcels A, B, C and D is completed.
Staff recommends that the City Council adopt the Resolution amending the Tract Developer Agreement
for Landscape to release Toll Brothers, Inc., from obligations for the completed landscaping work
governed by the original agreement, and to reduce the improvement security to an amount necessary to
assure that the landscaping work within Parcels A, B, C and D is completed as originally required with
Tract 7136, Dublin Ranch Area A, Neighborhood A-I.
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RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
THIRD AMENDMENT TO TRACT DEVELOPER AGREEMENT FOR LANDSCAPE
IMPROVEMENTS FOR TRACT 7136, DUBLIN RANCH AREA A (NEIGHBORHOOD A-l)
(TOLL BROTHERS, IN C.)
WHEREAS, the subdivider of Tract 7136, filed on May 3, 2002, in Book 263 of Maps at Pages 87 -
93, previously entered into two (2) Tract Developer Agreements with the City of Dublin, one for Street
Improvements and one for Landscaping, to improve said Tract in accordance with plans and specifications on
file with the Public Works Director, said Tract identified as follows:
a) Subdivider:
b) Tract Location:
c) Tract Size:
d) Resolution Approving Agreement:
e) City Streets Affected:
Toll cA II, L.P., A California Limited Partnership
West of Fallon Road
110 Single-Family Lots
No. 32-02, City of Dublin City Council
Fallon Road, Signal Hill Drive
WHEREAS, the Tract Developer Agreements were previously amended on March 18,2003, via City
Council Resolution Nos. 44-03 and 45-03, and on March 16, 2004, via City Council Resolution Nos. 41-04
and 42-04 to extend the completion date to March 19,2005; and
WHEREAS, the Landscape Improvements as guaranteed by a Performance Bond and a Labor and
Materials Bond each in the amount of $1,094,300.00, are complete in accordance with said plans and
specifications, and any approved modifications thereto, to the satisfaction of the Director of Public Works
wi1:h one exception as follows:
The landscaping within the Parcels A, B, C, and D as shown on those plans titled "Landscape
Architecture Drawings, Tract 7136, Toll Brothers, Dublin Ranch Area A, Neighborhood A-I, Dublin,
CA.", Sheets I thorough 54 prepared by Nuvis Landscaping Architecture and Planning is not
complete; and
WHEREAS, the DEVELOPER has requested that Section 2 ofthe governing Tract Developer
Agreement be amended to reflect a reduced total security amount of $40,000 which is sufficient to guarantee
the remaining Parcels A, B, C, and D work; and
WHEREAS, it is in the best interest of the CITY to amend the governing Tract Developer Agreement
as proposed;
WHEREAS, the agreement amendment (Exhibit "A" of this Resolution) hereby incorporates by
reference all terms and conditions set forth in the original Tract Developer Agreement, and all terms and
conditions that are not specifically modified by the amendment shall remain in full force and effect.
WHEREAS, the original Performance Bond and Labor and Materials Bonds that guaranteed the
Improvements can be released, in accordance with the authority contained in §66499.7 of the Government
Code of the State of California, and replaced with a Maintenance Bond to guarantee the completed work for a
one-year period following acceptance;
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AlTACHMENT
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NOW, THEREFORE, BE IT RESOLVED that the third amendment (attached hereto as Exhibit
"A" of this Resolution) to the Tract Development Agreement for Tract 7136, Dublin Ranch Area A,
Neighborhood A-I, is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute Exhibit "A" in
duplicate.
BE IT FURTHER RESOLVED that:
1. The Landscape Improvements completed within said Tract 7136, including the parkstrips and
median islands on Signal Hill Drive, and the parkstrips on the west side of Fallon Road
associated with Tract 7252, are hereby approved and accepted subject to a one-year guarantee
period; and
2. The original Performance Bond issued by The Continental Insurance Company (Bond No.
929231722) in the amount of$I,094,300.00 be released; and
3. The original Labor and Materials Bond issued by The Continental Insurance Company (Bond
No. 929231722) in the amount of $1 ,094,300.00 be released; and
4. The submitted Performance Bond issued by Travelers Casualty and Surety Company of
America (Bond No. 104091615) in the amount of $40,000.00 be accepted as security for the
remaining work within Parcels A, B, C and D as originally required; and
5. The submitted Labor and Materials Bond issued by Travelers Casualty and Surety Company of
America (Bond No. 104091615) in the amount of $40,000.00 be accepted as security for the
remaining work within Parcels A, B, C and D as originally required; and
6. The submitted Maintenance Bond issued by The Continental Insurance Company (Bond No.
929328727) in the amount of $273,575.00 be accepted as security for the aforesaid one-year
maintenance period, said period to commence on this date and terminate on the 2nd day of
November, 2005.
PASSED, APPROVED AND ADOPTED this 2nd day of November, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
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ExmBIT "A" OF
RESOLUTION NO. -04
A RESOLUTION OF THE CITY COUNCn.
OF THE CITY OF DUBLIN
**********
THIRD AMENDMENT TO TRACT DEVELOPER AGREEMENT FOR LANDSCAPE IMPROVEMENTS
ASSOCIATED WITH TRACT 7136, DUBLIN RANCH AREA A-l "PINNACLES"
(TOLL BROTHERS, INC.)
WHEREAS, the City of Dublin (hereinafter refelTed to as "CITY") and Toll Brothers, Inc. (hereinafter
referred to as "DEVELOPER"), entered into an Tract Developer Agreement for Landscape Improvements
(hereinafter referred to as "AGREEMENT") on March 19,2002; and
WHEREAS, the AGREEMENT was twice amended via City Council Resolution Nos. 45·03 and 42-04 to
extend the completion date to March 19, 2005; and
WHEREAS, the Landscape Improvements as guaranteed by a Performance Bond and Labor and Materials Bond
each in the amount of $1,094,300.00, are complete in accordance with said plans and specifications, and any
approved modifications thereto, to the satisfaction ofthe Director of Public. Works with one exception as follows:
The landscaping within Parcels A, B, C, and D of Tract 7136 as shown on those plans titled "Landscape
Architecture Drawings, Tract 7136 - Toll Brothers", Sheets 1 thorough 54 prepared by Nuvis Landscaping
Architecture and Planning is not complete; and
WHEREAS, the landscaping within the Tract is not complete, the DEVELOPER has requested that
Section 2 of the governing Tract Developer Agreement be amended to reflect a reduced total security amount of
$40,000.00 ($10,000.00 for each of the four parcels) which is sufficient to guarantee the remaining work; and
WHEREAS, it is in the best interest of the CITY to amend the governing Tract Developer Agreement as
proposed;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Estimated Cost of Improvements shown in Section 2 of the governing Tract Developer Agreement
is hereby reduced to $40,000.00 to reflect the cost oflandscaping Parcels A, B, C and D of Tract 7136.
2. This Amendment hereby incorporates by reference all terms and conditions set forth in the original
Tract Developer Agreement, and allterms and conditions which are not specifically modified by this _
Amendment shall remain in full force and effect.
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EXHIIT A.
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CITY OF DUBLIN
Toll Brothers Inc.
Mayor·
BY:~
Its: Assistant Secretary .
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Print Name: !- -1õ ..)
Date:
ATTEST:
City Clerk
By:
Its: Assistant Secretary
Date:
Print Name:
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Date
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CALIFORNIA ALL..PURPOSE ACKNOWLEDGMENT
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State of California
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signature(i!1' on the instrument the person(.s1, or
the entity upon behalf of which the person~
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OPTIONAL
Though the information be/ow ;s 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 doc;ument,
Description of Attach~Document
Title or Type of Document: ~(¡l.À _b, ' t
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Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer - Tille(s):
o Partner - D Limited 0 General
o Attorney-In-Fact
o Trustee
o Guardian or Conservator
o Other:
Signer Is. Representing:
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I Number of Pages:
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CITY OF DUBLIN
TRACT DEVELOPER AGREEMENT
This agreem~nt i~ made and entered into this lq.il..day of .fV\.n.vr1, .2002, by and
between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and
Toll Brothers, Inc. 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 Map 7136 desires to improve and
dedicate those public landscape improvements (hereafter 'íhe Improvements") required by
City of Dublin Planning Commission Resolution No. 00-37 adopted on July 25th, 2000 in
accordance with the requirements and conditions set forth in said resolution, f
requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinan
of the CITY, and those certain plans and specifications for said development approved
CITY on May 5, 200~ for landscape Improvement Plans of Dublin Ranch Area A-1, Tn
7136 submitted by Mackay & Somps, and now on file in the office of the Public WOI
Director/City Engineer, which are hereby referred to for a more definite and distil
description of the work to be performed under this Agreement as though set forth at len!
herein; and
WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements wit
the time hereinafte'r specified, and CITY intends to accept DEVELOPER's offer(s) of
dedication of The Improvements in consideration for DEVELOPER's satisfactory performance
ofthe terms and conditions of this Agreement:
NOW, TH_EREFORE, 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 ninety (90)
days following the date on which CITY executes this Agreement. DEVELOPER shall
complete said work not later than one year following said date of execution, Time is of the
essence in this Agreement. Upon completion, DEVELOPER shall furnish CITY with 8'
complete and reproducible set of final as-built plans of The Improvements, including any
authorized modificatiOns.
)
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ArrACHMENT~
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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 $1,094,300. 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 sufficientto 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 undèr 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 causete 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 subcol!tract 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
appear either in the body of the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
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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 G~neral 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' Cbmpensation 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, p~rsonal 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 Ëmplovers 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 Coveraoes.
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 b.r on behalf of the DEVELOPER;
products . and completed operations of. the DEVELOPER;
premises owned, occupied or used by the DEVELOPER; or
automobiles owned,leased, hired or borrowed by the
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DEVELOPER. . The coverage shall contain no special limitations '
on the scope ot' 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 Liabilitv Coveraoe.
)
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 Cove,raaes.
. . 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) Acceptabilitv of Insurers; Insurance is to be placed with insurers
with a Bests' rating of no less than A:VII.
b) Verification of Coveraae. 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.
c) 'Subcontractors. DEVELOPER and/or DEVELOPER's general
contractor shall include all subcontractors as insureds under its
policies or shall obtain separate certificates and endorsel1!ents for
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each subcontractor. All -coverages for subcontractors shall be
subject to all of the requirements stated herein.
5. Work Performance and Guarantee.
Except as othèrwise 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 .01" charge of any nature whatsoever to CITY.
DEVELOPER further covenants and agrees that when defects in design, workmanship and
materials actU'ally appear during the one~year guarantee period, and have been correGted,
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 DEVELOPERshall 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 sol.e 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 rate 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 conveñient
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 improvemenf plans and specifications.
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7. Aoreement Assionment.
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 pelformance 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 ssid work within such time, or if
. DEVELOPER should be adjudged as bankrupt, or should make a genetal assignment for the
benefit of DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER,
or àny' of DEVELOPER's contractors, subcontractors, agents or employees should viòlate
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 òf
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
shaH 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 overthe performance of the "
contract, and does not commence pelformance 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 occas.ioned by CITY thereby; and, in such
event, CITY, without liability for so doing, may take possession of, and utilize 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 Dùblin
100 Civic Plaza
Dublin, CA 94568
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Notices. required to be given to DEVELOPER shall be addressed as follows:
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Toll" Brothers, ¡nc
100 Park Place, Suite 140
San Ramon, CA 94583
Notices required to be given ~urety of DEVELOPER shall be addressed as follows:
Toll Brothers, Inc.
100 Park Place, Suite 140
San Ramon, CA 94583
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 shaH 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
constrtute.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. .
1,0. 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 Of') 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, iffound to be in accordance
with said plans and specifications and this Agreement, shall recommend acceptance of the
work to the City Council and, upon sùch acceptance, shall notify DEVELOPER or his
designated agents of such aCceptance.
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12. Patent andCopyrioht Costs.
In the event that said plans and specific'ations 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 shallihdemnify 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.
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 281 9 of the Civil Code of the State of California.
14. Liabilitv.
A. DEVELOPER Primarilv Liable. DEVELOPER hereby warrants that the
design and construction of The I mprovernents will not adversely affect any portion of
adjacent properties anq .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
employees, 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
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 ~greement 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
ápproved 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.
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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, DEVELQPER shall, upon
order by the CITY, corrett 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 wörk required. .
3) Litiaation 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.
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: ~.. .wM.~~.':iw-:l;
ayor
ATTEST:
~L~ \\oL. Cu~/. .. .
. CITY Cferk / ='1--/
DEVELOPER
Toll Brothers, Inc.
BY~~.·
Type or Print Name
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Title:
A-/¡a
Type or Print Name
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. . . . ,RY.XN LE~~AR2 ~~LUCK ..
>- :lit, Commission 1r 1_,.iß318·
..~ oLtii ~~9;?:¡' Notary Public - California ~
~':~\lfL'\J . Aicrneda Cour.1y -4
". My Comr;"!. Dlpir:.'S Jcn 1 ,oj. 2rC3
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By:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
Á-l\¡V\~ ð~
County of
On ~-I~,..cr2_
Date
personally appeared
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MI ~m. [);Pi¡\.3S Jon 16.2003
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Place Notery Seel Above
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o personally known to me
o proved to me on the basis of satisfactory
evidence
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 instrumentthe person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
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WITNESS my hand and official seal.
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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 "":....... f
Title or Type of Document: \" VYJ..f ~ Y..o,0-e \Lo p~y-
A~l« \I'I.e{l.J..
Number of Pages: \f)
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Document Date:
5-t"'3",,02
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer\\. .\-
Signer's Name: ..)c'.:> V\ ~CA-;.( V\ {!f
o Individual . An
r:p Corporate Officer - Title(s):· J t'"
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
RIGHT 1 HUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
To II 1) (o-\.-h¿ ...- J;v1c
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'" 1997 National Notary Association' 9350 De SolO Ave.. P..O. Box .240.2 . Chatsworth, CA 91313-.2402
Prop_ No. 5907
Raorder: Call Toll-Free 1-800-876.6827
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