HomeMy WebLinkAboutItem 4.05 DubRanATr7253FMap CITY CLERK FILE # 410-50 & 600-60
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 19, 2002
SUBJECT:
Approval of Master Final Map Tract 7253, Dublin Ranch Area A
Report Prepared by: Lee S. Thompson, Public Works Director
ATTACHMENTS:
1)
2)
3)
Resolution Approving Final Tract Map 7253
Reduced copy of Final Tract Map 7253
Improvement Agreement and Right-of-Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of
Master Vesting Tentative Map 7135
RECOMMENDATION: ~
FINANCIAL STATEMENT:
Adopt Resolution approving Final Tract Map 7253
The developer will provide bonds or other security to guarantee
construction and grading of ultimate Fallon Road improvements,
and will pay the cost' of construction inspection. Once the
improvements have been constructed and accepted, the City will
incur maintenance costs for City-maintained improvements.
DESCRIPTION: Tract 7253 is located in Eastern Dublin, Dublin Ranch Area A,
northwesterly of existing Fallon Road, and will divide 166.8 acres of Parcel E of Final Map 7252 into 8
parcels for furore development. Tract 7253 is the third phase of Master Tentative Parcel Map 7135
(Dublin Ranch, Area A) that was approved by the Planning Commission on July 17, 2001 (PA 99-060),
propOsing to subdivide 369 acres of the Dublin Ranch Development into 16 parcels in three separate
phases.
On July 17, 2001, the City Council approved the first phase of development, Final Map 7135, which
consisted of 5 parcels, primarily designated for future neighborhoods A-6 and A-7, a 110-lot future
residential subdivision. The second phase of development, Final Map 7252, consisted of 10 parcels,
primarily future neighborhood A-1 (a 110-lot residential subdivision), and was approved by City Council
on December 4, 2001. This last phase, Final Map 7253, encompasses 8 parcels and consists of future
neighborhoods A-2 (Parcel A), A-3 (Parcel B), A-4 (Parcel C) and A-5 (Parcel D) totaling 250 residential
lots, half of an 18-hole golf course, the future extension of Signal Hill Drive, and a future public school
site. Parcels A, B, C and D will be further subdivided when the extension of Signal Hill Drive and Tract
Maps are filed with each individual development parcel.
COPIES TO: Bill Morrison (Toll Brothers)
G:\DEVELOP~Dublin Ranch~Areas A-E~_rea A Tract 7253~GST Master Final Map Tract 7253.doc
Uses for each parcel of Tract 7253 are as follows:
Parcel A:
Parcel B:
Parcel C:
Parcel D:
Parcel E:
Parcel F:
Parcel G:
Parcel H:
Subdivision of 50 low-density single-family homes (Neighborhood A-2)
Subdivision of 84 low-density single-family homes (Neighborhood A-3)
Subdivision of 54 low-density single-family homes (Neighborhood A-4)
SubdivisiOn of 62 low-density single-family homes (Neighborhood A-5)
Portions of the future golf course
Portions of the future golf course
Future public school facility
Future extension of Signal Hill Drive
Final Tract Map 7253 includes dedications of storm drain, sanitary sewer, water, public service and
emergency vehicle access easements to serve the listed parcels as shown on the Final Tract Map, and
private access and private storm drain easements. The Final Tract Map has been reviewed and found to be
in conformance with Master Vesting Tentative Map 7135 and the Conditions of Approval (as approved by
the Planning Commission with Resolution No. 00-36).
DR Acquisitions I, LLC, (the Lins), as owners of Tract 7253, will defer the ultimate improvements on the
south side of Fallon Road from the northerly terminus of existing Fallon Road to the south boundary of
Dublin Ranch Phase I. The ultimate improvements will include all frontage improvements of curb, gutter
and sidewalk, together with the construction of street lights in the median island to illuminate the south
side of Fallon Road along the frontage of the future Community Park (Condition Nos. 74, 76 and 100).
The Lins will also defer the preparation of a legal description for the precise alignment of Fallon Road
(Condition No. 79).
To accomplish the deferral of improvements, the Lins have executed an Improvement Agreement and
Right-of-Entry for Fallon Road Improvements (see Attachment 3) to satisfy Conditions of Approval Nos.
74, 76 and 100 for Master Vesting Tentative Map 7135. The Lins' execution of this Improvement
Agreement and Right-of-Entry for Fallon Road Improvements is to formalize the intentiOn to complete
the improvements within the time specified in the Agreement.
The Improvement Agreement provides for security at the time of approval of the last Final Map of Areas
A-2, A-3, A-4 and A-5. This agreement provides that the City Council can defer approval of the last of
such maps until such security is provided. For the conditions not yet complied with, the obligations of
said conditions are secured by the Improvement Agreement of Construction of Fire Station 18 and
Conditions of Approval for Areas A-2 to A-5. With the approval of Final Map 7253, the Director of
Public Works has concluded that all Conditions of Approval for Vesting Master Tentative Map 7135 have
been met.
The City will receive bonds or other security from the Lins in the amount totaling $1,839,000 as security
for the ultimate improvements of Fallon Road from existing Fallon Road to Antone Way per the
Improvement Agreement and Right-of-Entry for Fallon Road Improvements applicable to this phase of
development. These bonds or other security are to be provided no later than City Council approval of the
Final Map for the last Final Map to be recorded of Tracts 7137 (Neighborhood A-2), 7138 (Neighborhood
A-3), 7139 (Neighborhood A-4) and 7140 (Neighborhood A-5), or earlier than such date if required by
City with 180 days advance notice to the Developer. The improvements shall be completed within one
year of the execution of bonds or other security. If the one-year period is extended, the security may be
provided at the conclusion of said extended period with the consent of the City Manager. All of the
required fees, insurance certificates and the signed Agreement have been submitted and reviewed.
Staff recommends that the City Council adopt the resolution approving Final Tract Map 7253.
-2-
RESOLUTION NO. -02
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING FINAL MASTER MAP FOR TRACT 7253
(AREA A, DUBLIN RANCH)
WHEREAS, the Final Map for Tract 7253, in the incorporated territory of the City of Dublin,
State of California, has been presented to this City Council for approval, all in accordance with provisions
of the Subdivision Map Act of the State of California and the City of Dublin Municipal Code; and
WHEREAS, the Developer, DR Acquisitions, LLC, has executed and filed with the City of Dublin
an agreement to improve Tract 7253 in accordance with the Final Map of said Tract 7253, and the Tract
improvement plans and specifications attached thereto; and
WHEREAS, with the approval of this Final Map 7253, Conditions of Approval numbers 14, 23,
26, 31, 33, 47, 52, 53, 60, 72, 74, 76, 78, 79, 81, 82, 83, 89, 90, 93, 99, 100, 101,102, 105 and 106, of
Vesting Master Tentative Map 7135 will not be completed, but the obligations of said conditions are
either secured by the Improvement Agreement of Construction of Fire Station 18, Improvement
Agreement and Right-of-Entry for Fallon Road Improvements to Satisfy Certain Conditions of Approval
of Vesting Master Tentative Map 7135, or are Conditions of Approval of vesting tentative maps for
Tracts 7137 (Neighborhood A-2), 7138 (Neighborhood A-3), 7139 (Neighborhood A-4) and 7140
(Neighborhood A-5); and
WHEREAS, the Owner (DR Acquisitions, LLC) shall complete Fallon Road improvements along
the Community Park Frontage no later than one year following the date of City Council approval of the
Final Map for the last to record of Parcel A (Neighborhood A-2, Tract 7137), Parcel B (Neighborhood
A-3, Tract 7138), Parcel C (Neighborhood A-4, Tract 7139) and Parcel D (Neighborhood A-5, Tract
7140) of Area A, unless the one-year period is tolled as provided in the improvement agreement; and
WHEREAS, said agreement includes provisions to require bonds or Letter of Credit in amounts
totaling $1,839,000. Required improvements include: Fallon Road Extension Ultimate Improvements,
of which $919,500 for said improvements is conditioned upon faithful performance of said contract,
and $919,500 for said improvements for the benefit of laborers and materials upon the work and
improvements, conditioned upon payment fOr labor performed or material furnished under the terms
of said agreement; and
THEREFORE, BE IT RESOLVED that the Final Map of Tract 7253 be and the same is hereby
approved, and that rights to the areas marked as the following: those strips of land marked as Public
Service Easement (P.S.E.), Storm Drain Easement (S.D.E.) and Emergency Vehicle Access Easement
(E.V.A.E), offered for dedication to public use in conformity with the terms of dedication be, and they are
hereby accepted, subject to improvement, and that the Clerk of this City Council be and is hereby directed
to transmit said Map to the County Recorder for filing.
PASSED, APPROVED AND ADOPTED this 19th day of March, 2002.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
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'TRACT' 7253
A' b'UBDIVIm0tt.OF rAI~L 'B' or %~ACT ~, ~ ~ ~
AliSA CO~ RECORDS.
A~MEDA COUNTY, CALIFORNIA
DECEMBER, 2001
BASIS Oi: BEARINGS;.
FOR Il'liS UI4E JS-T~:EIJ/4S NOtGH 19'44'217 ViI~T.
IMPROVEMENT AGREEMENT AND
RIGHT OF ENTRY FOR
FALLON ROAD IMPROVEMENTS TO SATISFY CERTAIN CONDITIONS OF
APPROVAL OF VESTING MASTER TENTATIVE MAP 7135
This agreement is made and entered into this __ day of March, 2002, by and between
the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and DR
Acquisitions I, LLC, a limited liability company, successor in interest to Chang Su-O-Lin (also
known as Jennifer Lin), Hong Lien Lin (also known as Frederic or Frederich Lin) and Hong Yao
Lin (also known as Kevin Lin), hereinafter referred to as "OWNER".
RECITALS
WHEREAS, OWNER is the subdivider of Vesting Master Tentative Map 7135 ["VTM
7135"], which was approved by the Planning Commission of the City of Dublin by Resolution
00-36 on July 25, 2000; and
WHEREAS, conditions of approval of VTM 7135, included in Resolution 00-36,
require certain improvements to Fallon Road within the City of Dublin; and
WHEREAS, the City's general plan land use map for the Eastern Dublin Extended
Planning Area (Figure 1-2b) and the Land Use Map in the Eastern Dublin Specific Plan (Figure
4.1) show the alignment of Fallon Road northerly from its most northernmost terminus (as of
1993) through to connect with Tassajara Road, which alignment is referred to herein as the
"Fallon Road GP/SP Ultimate Alignment"; and
WHEREAS, the City's general plan land use map for the Eastern Dublin Extended
Planning Area (Figure 1-2b) and the Land Use Map in the Eastern Dublin Specific Plan (Figure
4.1) also show a 68-acre community park proposed to be located immediately to the west of the
Fallon Road GP/SP Ultimate Alignment; and
WHEREAS, following is a description of the improvements to Fallon Road to be
performed pursuant to this agreement and a reference to specified conditions of approval of
Resolution 00-36, if such improvements satisfy one or more of the conditions of Resolution 00-
36:
--completion of ultimate improvements on the south side of Fallon Road
from the northerly terminus of existing Fallon Road to the south boundary of
Dublin Ranch Phase Ii as described in condition 74 and, in particular, as shown on
Exhibit A hereto, which is page 27 of"Supplemental Information" of the
TM/SDR book referenced in Condition 74, including all frontage improvements
[curb, gutter and sidewalk], together with construction of street lights in the
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
median to illuminate the south side of Fallon Road along the frontage of the future
community park, which improvements are referred to herein as the "Community
Park Frontage Improvements" or "The Improvements" [satisfies Conditions 74,
76 and 100].
-- preparation of a legal description which can be used by CITY to adopt a
right-of-way line in accordance with Dublin Municipal Code Chapter 7.68, for the
conceptual precise alignment described in condition 79, which is referred to
herein as the "Fallon Road Right-of-Way Description" [satiSfies Condition 79]
WHEREAS, OWNER intends to satisfactorily complete The Improvements within the
time hereinafter specified, and CITY intends to accept The Improvements in consideration for
OWNER's satisfactory performance of the terms and conditions of this Agreement; and
WHEREAS, City will provide OWNER with a right to enter those lands required for
construction of The Improvements which are not owned by OWNER;
WHEREAS, execution 6f this Agreement will satisfy Master Vesting Tentative Map
7135 conditions numbers 74, 76, 79, and 100 of Resolution 00-36; and
NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants
herein contained, the parties agree as follows:
Section 1.
Completion Time for Community Park Frontage Improvements and Fallon
Road Right-of-Way Description.
OWNER will complete construction of the Community Park Frontage Improvements no
later than one year following the date of City Council approval of the final map for the last to
record of Tract 7137 (Neighborhood A-2), Tract 7138 (Neighborhood A-3), Tract 7139
(Neighborhood A-4) or Tract 7140 (Neighborhood A-5). Notwithstanding the preceding
sentence, the one-year period to complete such construction will be tolled until CITY has
notified OWNER in writing that.CITY has either (a) adopted a right-of-way line for the Fallon
Road GP/SP Ultimate Alignment and obtained whatever permits are required from regulatory
agencies; or (b) approved a right-of-way line for an alternate Fallon Road alignment and obtained
whatever permits are required from regulatory agencies. Once CITY provides such notification
to OWNER, OWNER shall complete construction within one year from the date of notification.
OWNER will complete the Fallon Road Right-of-Way Description within three (3)
months of CITY's written notice to OWNER to complete such description.
The Improvements shall be designed and constructed in accordance with City of Dublin
Public Works Standard Plans; the requirements of the Subdivision Map Act of the State of
California and the Subdivision Ordinance of the City of Dublin; and Exhibit A hereto, 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. Prior to construction of The Improvements,
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 2 of 12
March 13, 2002
OWNER will submit plans and specifications to CITY's Director of Public Works fOr approval
and may commence construction following such approval.
Time is of the essence in this Agreement. Upon completion, OWNER shall furnish CITY
with a complete and reproducible set of final as-built plans of The Improvements, including any
authorized modifications.
Section 2. Estimated Cost of Improvements.
For purposes of this Agreement, the estimated cost of constructing the Community Park
Frontage Improvements and Fallon Road Right-of-Way Description is agreed to be $919,500.
Said amount includes costs and reasonable expenses and fees which may be incurred in
enforcing the obligation secured. Said amount will be adjusted each March 1 during the term of
this agreement by the increase in the Engineering News Record Construction Cost Index (20-
City Average) until security is provided pursuant to Section 3.
Section 3. Security Furnished.
No later than City Council approval of the Final Map for the last to record of Tracts 7137
(Neighborhood A-2), 7138 (Neighborhood A-3), 7139 (Neighborhood A-4) or 7140
(Neighborhood A-5) or earlier than such date if required by City with 180 days advanced written
notice to Developer, Developer shall provide City with a Performance Bond and Labor and
Materials Bond for grading and constructing the Community Park Frontage Improvements. The
Performance Bond shall be in an amount equal to 100% of the estimated costs of the
improvements, as such costs are agreed to by Developer and the City Engineer, and the Labor
and Material Bond shall be in the amount of 100% of such estimated cost of the improvements.
Both bonds shall be in a form approved by the City Engineer and executed by a surety authorized
to do business in the State of California. The amount of the security may be reduced if the City
Engineer finds that any portions of the Community Park Frontage Improvements have been
constructed.
In lieu of bonds, Developer may provide City with a letter of credit as a substitute for
either or both bonds. The letter(s) of credit shall be in a form and duration approved by the City
Attorney. The improvements shall be completed within one year of execution of the bonds or the
letter of credit.
If the one-year period is tolled, as provided in Section 1, the security may be provided at
the conclusion of said tolling period with the consent of the City Manager.
Section 4. Insurance Required.
Prior to approval of the plans and specifications for The Improvements by cITy's
Director of Public Works, as required by Section 1, OWNER shall obtain or cause to be obtained
and filed with the CITY, all insurance required under this paragraph, and such insurance shall
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 3 of 12
March 13, 2002
have been approved by the CITY's Risk Manager, or his designee, as to form, amount and
carrier. Prior to the commencement of work under this Agreement, OWNER's general contractor
shall obtain or cause to be obtained and filed with the Risk Manager, all insurance required under
this paragraph, and such insurance shall have been approved by the CITY's Risk Manager, as to
form, amount and carrier. OWNER shall not allow any contractor or subcontractor to commence
work on this contract or subcontract until all insurance required for OWNER and OWNER's
general contractor shall have been so obtained and approved. Said insurance shall be maintained
in full force and effect until the ~ompletion 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.
a. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(i)
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.)
(ii)
Insurance Services Office form number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and endorsement
CA 0025.
(iii)
Workers' Compensation insurance as required by the Labor Code
of the State of California and Employers Liability Insurance.
bo
Minimum Limits of Insurance. OWNER shall maintain limits no less
than:
(i)
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.
(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.
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 4 of 12
March 13, 2002
Co
Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the CITYo 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 OWNER shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and
defense expenses.
Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
(i) General Liability and Automobile Liability Coverages.
(ii)
(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 OWNER; products and completed
operations of the OWNER; premises owned, occupied or
used by the OWNER; or automobiles owned, leased, hired
or borrowed by the OWNER. 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 OWNER'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 OWNER'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 OWNER'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.
Workers' Compensation and Employers Liability Coverage. 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 OWNER for the CITY.
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 5 of 12
March 13, 2002
(iii) All 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' prior written notice by certified mail, return receipt requested,
has been given to the CITY.
(a)
Acceptability of Insurers. Insurance is to be placed with
insurers with a Bests' rating of no less than A:VII.
(b)
Verification of Coverage. OWNER 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.
Section 5.
(c) Subcontractors. OWNER and/or OWNER'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.
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, OWNER guarantees
all work executed by OWNER and/or OWNER'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 a~ter initial acceptance of the entire work by CITY.
OWNER 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. OWNER 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 the corrected items for an
additional year to insure that such defects have actually been corrected.
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 6 of 12
March 13, 2002
In the event the OWNER shall fail to comply with the conditions of the foregoing
guarantee within thirty (30) days time or such longer time period as agreed to in writing by the
Director of Public Works, 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 OWNER 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 OWNER 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, OWNER shall pay, in addition to actual costs and
expenses of such repair or work, twenty-five percent (25%) 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.
Section 6. Inspection of the Work.
OWNER 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 OWNER and replaced to the
satisfaction of CITY without any expense to CITY in strict accordance with the Improvements
plans and specifications.
Section 7. Agreement Assignment.
This Agreement shall not be assigned by OWNER without the written consent of CITY.
Section 8. Abandonment of Work.
Neither OWNER nor any of OWNER's agents or contractors are or shall be Considered to
be agents of CITY in connection with the performance of OWNER's obligations under this
Agreement.
If OWNER 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 OWNER
should be adjudged as bankrupt, or should make a general assignment for the benefit of
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 7 of 12
March 13, 2002
OWNER's creditors, or if a receiver should be appointed, or if OWNER, or any of OWNER'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 OWNER
and OWNER's surety or holder of other security of breach of this Agreement, or of any portion,
thereof, and default of OWNER.
In the event of any such notice of breach of this Agreement, OWNER'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 OWNER and
OWNER'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 utilize in completing the work, such materials, appliances,
plant and other property belonging to OWNER as may be on the site of the work and necessary
therefore.
Section 9. Notices
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 and Director of Public Works
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Notices required to be given to OWNER shall be addressed as follows:
Martin Inderbitzen
Attorney at Law
5510 Sunol Boulevard, Suite A
Pleasanton, California 94566
and
DR Acquisitions I, LLC
c/o James Tong
6601 Owens Drive, suite 100
Pleasanton, CA 94588
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 8 of 12
March 13, 2002
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, OWNER has executed and has
caused to be acknowledged an abstract of this Agreement. OWNER agrees CITY may record
said abstract in the Official Records of Alameda County.
Section 10. Use of Streets or Improvements.
At all times prior to the final acceptance of the work by CITY, the use of any or all of the
streets to be constructed under this Agreement shall be at the sole and exclusive risk of OWNER,
Section 11. Safety Devices.
OWNER 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. OWNER 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 OWNER, and the entire site left clean and orderly.
Section 12. Acceptance of Work.
Upon notice of the completion of The Improvements and the delivery of a set of final as-
built mylar plans with electronic file to CITY by OWNER, CITY, through its City Engineer or
his designated representative, shall examine the 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 OWNER or his
designated agents of such acceptance.
Section 13. Patent and Copyright Costs.
In the event that said plans and specifications require the use of any material, process or
publication which is subject to a duly registered patent or copyright, OWNER 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.
Section 14. 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
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 9 of 12
March 13, 2002
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.
Section 15. Liability and Indemnification.
ao
OWNER Primarily Liable. OWNER hereby warrants that the design and
construction of The Improvements will not adversely affect any portion of
adjacent properties and that all work will be performed in a proper
manner. OWNER 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
OWNER, its employees, agents, or independent contractors in connection
with OWNER'S actions and obligations hereunder; provided as follows:
(i)
That CITY does not, and shall not, waive any rights against OWNER'
which it may have by reason of the aforesaid hold harmless agreement,
because of the acceptance by CITY, or the deposit with CITY by
OWNER, of any of the insurance policies described in Paragraph 3 hereof.
(ii)
That the aforesaid hold harmless agreement by OWNER 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.
Design Defect. If, in the opinion of the CITY, a design defect in the work
of Improvements 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, OWNER 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.
Litigation Expenses. In the event that legal action is instituted by either
party to this Agreement, and said action seeks damages for breach of this
Agreement or seeks to specifically enforce the terms of this Agreement,
and, in the event judgment is entered in said action, the prevailing party
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 10 of 12
March 13, 2002
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 OWNER's surety on the bonds
provided under Section 4.
Section 16. Right of Entry.
CITY will grant OWNER a right of entry to enter upon the property necessary to
construct The Improvements at the time OWNER notifies CITY that it plans to begin
construction. The right of entry shall permit OWNER to enter onto such property with such
personnel, equipment, machinery, vehicles and materials as may be necessary for the sole
purpose of Construction of The Improvements pursuant to this Agreement. This right of entry
shall be effective for the one year period required for construction, as specified by the CITY's
Director of Public Works. There shall be no payment for the right of entry. OWNER's
obligation to indemnify, defend and hold CITY harmless, as described in Section 15, shall be
applicable to any acts or omissions of OWNER, its contractors, subcontrators and agents, in
connection with this right of entry.
Section 17. Credits.
CITY shall provide a credit to OWNER for construction of The Improvements if such
improvements are described in the Eastern Dublin Traffic Impact Fee Guidelines (Resolution No.
225-99 or any subsequent resolution) and if such improvements are constructed in their ultimate
location. CITY will also provide credit to OWNER for monies advanced pursuant to Section 1
for environmental review; such credit shall be for Fallon Road or the community park, as
appropriate. All aspects of the credit shall be governed by the City's Administrative Guidelines
(Resolution Nos. 23-99 [Traffic Impact Fee] and 195-99 [Public Facilities Fee]).
Section 18. Recordation and Effect Thereof.
This agreement shall be recorded by the City Clerk.
The property affected by this agreement is the land shown on the Master Vesting
Tentative Tract Map for Tract No. 7135 as Parcels A-2, A-3, A-4 and A-5 and is described on
Exhibit B, attached hereto. The recordation of this agreement will serve as notice to any future
owners of Tracts 7137 (Neighborhood A-2), 7138 (Neighborhood A-3), 7139 (Neighborhood A-
4) and 7140 (Neighborhood A-5) that the obligations of OWNER to provide security for
construction of The Improvements shall be satisfied at the times specified herein and,
notwithstanding the provisions of Government Code Section 66458 regarding approval of final
maps, that failure of the OWNER to satisfy such obligation at such times may be cause for the
City Council to refuse to approve the last of the Final Maps for Tracts 7137, 7138, 7139 or 7140
and/or building permits for construction on the property covered by such tentative maps.
To effectuate the provisions hereof, OWNER hereby agrees it will not assert the
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 11 of 12
March 13, 2002
provisions of Government Code Section 66458 in any proceeding to require the City Council to
approve a final map for the last of Tracts 7137, 7138, 7139 or 7140 until the respective
obligations hereunder relating to such Tract is satisfied. OWNER further agrees to require any
future purchaser of the property described in Exhibit B to similarly agree in writing.]
Section 19. Recitals.
The foregoing Recitals are true and correct and are made a part hereof.
Improvement Agreement and Right of Entry for Fallon Road
Improvements to Satisfy Certain Conditions of Approval of VTM 7135
Page 12 of 12
March 13, 2002
Section 20. ~Exhibits.
This agreement is accompanied by the following exhibits:
Exhibit A -
page 27 of "Supplemental Information" of the TM/SDR book
referenced in Condition 74 of Resolmion 00-36 of the Planning
Commission.
Exhibit B Legal Description of Areas A-2, A-3, A-4 and A-5.
IN WITNESS WItEREOF, the parties hereto have executed this Agreemem in
duplicate at Dublin, California, the day and year first above written.
CITY OF DUBLRq: DR ACQUISITIONS II, LLC
a Delaware Limited Liability Company
By: Name: Shih-Hsi Yeh
Janet Lockhart, Mayor Title: Managing 'Member
Date:
Da~: March 14,, 2002
ATTEST:
By:
Kay Keck, City Clerk
Date:
Approved as to Form:
Elizabeth H~ Silver, City Attorney
JAWPIJ'~iNRSWM 14\103xokGREE\TM7135 FALLON
IMPROVEMEN'r_031202.DOC
Improvement Agreement and Righ~ of Entry for Fallon Road
Improvements to Satisfy Certain Cond/tions of Approval of VTM 7135
Page 12 of 12
March 13, 2002
.
m~umlnoW concep~ suojec~ ~o~{¢~' ~ ~~,,~,~.
at final map stage.
,g............
......
EXHIBIT "B"
PAGE 1 OF 2
19155-12,-13, -14, & -15
03/13/02
F.C.I.
DESCRIPTION
IMPROVEMENT AGREEMENT & RIGHT OF ENTRY FOR FALLON ROAD
BEING PORTIONS OF THAT CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 'C'"
AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 7135" AS FILED ON
THE 10~ DAY OF AUGUST, 2001 IN BOOK 259 OF MAPS, AT PAGES 57 - 63, OFFICIAL
RECORDS OF ALAMEDA COUNTY, CALIFORNIA, [SAID PORTIONS OF "PARCEL 'C'"
SHALL BE ULTIMATELY KNOWN AS: "PARCEL 'A'", "PARCEL 'B", "PARCEL 'C", AND "PARCEL
'D'" OF FUTURE FINAL MAP ENTITLED: "TRACT 7253" YET TO BE RECORDED], FOR
PURPOSES OF AN IMPROVEMENT AGREEMENT & RIGHT OF ENTRY FOR FALLON
ROAD, LYING AND BEING IN THE CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA.
[SAID FUTURE "PARCEL 'A'" CONTAINING 9.205 ACRES, MORE OR LESS;
SAID FUTURE "PARCEL 'B'" CONTAINING 15.189 ACRES, MORE OR LESS;
SAID FUTURE "PARCEL 'C'" CONTAINING 14.942 ACRES, MORE OR LESS; AND
SAID FUTURE "PARCEL 'D'" CONTAINING 14.115 ACRES, MORE OR LESS.]
TOTAL PORTIONS OF "PARCEL 'C'" CONTAINING 53.451 ACRES, MORE OR LESS;
PORTIONS OF: ASSESSOR'S PARCEL NUMBERS 985-0007-002-17, 985-0008-028-01,
985-0008-028-02, 985-0008-028-03, AND 985-0008-028-04.
END OF DESCRIPTION
o. 5859
(EXP. 12/31/2004)
STATE OF CALIFORNIA
P:~legals\16034-20\dev-ag mt-a2-5.doc
/DATE
IllAeKAY& $omPs
CIVIL ENGINEERINGeLAND PLANNINGeLAND SURVEYING
5142 Franldln Drive Suite B, Pleasanton, CA. 94588-3355
rARC[L PARCEL ~'~
(R-5) J
TRACT 7252
(~^~o. ~s ~. zo.E ~. i
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~ ,' ,.,..~,~ ~ ,-,)~ ._~ ~ ~ ~ .
PARCEL t - T~ 7148 L~
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TRACT 7253
A SUB])I'v'IS]O~ O~ P~C~_, 'R' OP TINCT ?:~§~, ~ FIJI) IN
BOOK__ OF }U~PS, AT PAGES TO
ALAMEDA COUNTY RECORDS.
CITY OF DUBLIN
ALAMEDA COUNTY, CALIFORNIA
DECEMBER, 2001
EASEMENT NOTES: LEGEND
OF DB)EAll~I (F0~t FN.L(~ ROAD) I~CO~)I~ ~ t4. ~2. M-M
~1~ ~. ~207~20. M-PL
W~
NOTES: PSDE
1) ~ ~ ~ ~ ~ fl~ I~ ~
REFERENCES
SET ~/~t- IP w/PLASTIC CaP STAMPED LSJ5412
FOUND 1" IP W/LSt4233 PER (R-l), UN~
PRNA~ ~0~ D~N ~ (P~ R-6)
~ P~EL 'G' OF ~ 7252 (R-6)
~AE ~ ~ (R~ HinES) ~ m
BAS I S OF BEAR I NGS:
~HE BASIS OF BEARINGS SHOWN HEREON, IS ~-IE UNE
BR~EEN USC&GS TRIANGULATION STATIONS "FALLON' AND
"MOUNT DIABLO TOWER'*. THE GRID BEARING CALCULATED
FROM PUBESHED CCS 27 ZONE 5 GRID COORDINATES
FOR THIS LINE IS TAKEN AS NORTH 15044'21" WEST.
SHEET 2 OF 8
19155-4