Loading...
HomeMy WebLinkAbout4.05 Promenade Ph 1 PM 9717proposed to be the first phase of development of The Promenade consisting of Club Sport and the Mercantile Building with a parking structure (Attachment 1). James Tong and Mei Fong Tong (Owner) and the Whiting-Turner Contracting Company will construct the improvements required for Parcel Map 9717, and have submitted a signed Tract Improvement Agreement for Parcel Map 9717, The Promenade-Phase 1 (Attachment 2, Exhibit "A"). In addition, Whiting-Turner Contracting Company has provided a Performance Bond and a Labor and Materials Bond, furnished by Fidelity and Deposit Company of Maryland in the amount of $435,000 (Bond No. 8955026), to guarantee construction of the improvements, and will pay the cost of construction inspection. The Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan permitted the Owner to retain ownership over the adjacent sidewalk along the public streets and required the Owner to maintain the sidewalk. The City of Dublin Community Development Director Resolution No. 09-10, adopted on September 17, 2009, approved Tentative Parcel Map 9717 for The Promenade with a condition requiring that the Owner enter into a Maintenance and Irrevocable License Agreement with the City for use of the sidewalk area. The Owner has executed and filed with the City of Dublin a Maintenance and Irrevocable License Agreement Related to Parcel Map 9717 that fulfills this Condition of Approval (Attachment 3, Exhibit "A"). The Agreement has been reviewed and found acceptable by the City Attorney. Parcel Map 9717 has been reviewed and found to be in conformance with the Tentative Parcel Map and Conditions of Approval approved by City of Dublin Community Development Director Resolution No. 09-10 adopted on September 17, 2009. RECOMMENDATION: Staff recommends that the City Council 1) adopt the Resolution approving Parcel Map 9717 and the Tract Improvement Agreement, Parcel Map 9717, The Promenade- Phase 1; and 2) adopt the Resolution Approving Maintenance and Irrevocable License Agreement Related to Parcel Map 9717. Page 2 of 2 M ~~g~av ~ ~~ ? ~fpD~ L~~L~F ~I~Z~~a(({g~~~'~ ~ ~ cD~ ~ ~ fM~j< ~ b ~ ~ m ~~~~~~ ((N(/7~f {6~y] ZN ~~~ -~L~L~G ~.- ~~r.l ~ 'y~ ~~ ~ ~~~~ ~ Sys ~iJ W/- ~ S~~ ~m= ~2_O ~3 SV lalV( ~~ j ~~ S 5._~~ <~ ~0~~~ ~ 6N 3 J I I ~ ~ ~~~o~~S~~~aiiiiYnt'ntiii}n~~ OO ® ® {/)~~~~ ~~~~~~~`'~~~~ Z ~ ~ ~ ~~~~~~ ~ s r \( '~~;~ I I ;I ~I I ~I ~~• I ~'~a X t II ~€ a #~ '~ ~~E J ~~i~~~~ ~ISt~l~i ~_ i mi , ~ _~ _ ,~ 4ocr t ~ ~:°;~t ~~ ~ ~~~ ~ I(~ ~ ~_ ~ I~~I >! la~~ ;~ ~i ~Z ~mi ~~ r ~~ ~ZZ }T}..~ ~I m aU~I Cql ~ N I t N I I M i ~.n ~.LL~ I ~I ~ a II ;~~ II ~ N ~ ~~ I I ~_ ~I ,~~ ~ I I~ Hm I I ~~ N I I~ ~ ~ I`I ~ ~ ~ ~Iml ~ a ~ ylFl ~ i;~ ~ ~ ~ ~ I~I ~ s ~~I ~ ~I~~ ~,~~ - ~ ~~ ~ ~ N.. ~ W J ,~f N °r° W ~GJ ~j ~~ a~ ~ AUNB .00'l4 M~£.9£.ZLN ~~ -- .LL's i~ a. ~~ .IL'B-l .1~7~ S1R~~ 9'lt 1-8- r ------ -------- -------------- \ ~ ~-- .LCai .wzrlav sro``-Y- V APL~1 SY.ZF.Lh-V ,N'~Y~ ~~ ~ ~ ,~ N ~ la ~ ~ 's. 1 ~ z ~ W U~ d m n mFo~ ~~~~ ~ W ~~ ~ ;,, ~~i~ ~~ i~z~ ~~~ III aaua 1~s~.vi~y-~~'RY 11rtI~fAIOn: N79Y2Y7SE 211.2B' N-11 ~_ 1 zt1 ~ t.~~ H'O1° N I~ I ag G~ I I ~" 1 N I ~ I AON9 .LL b~l ~ ~ 2 ~ ~n I ,~^ 1 H', )) ppp p L~p~ ~~~ ~ GN 3 J C$ o N ~2 ,, J ~I ~._~ I I U • U O ~ 4 1R ~ w-n ~ ~ z ~ ~ ` q ~ ~~ ~,~ / ~~ ¢°r ~ ~ ~~~ ~ ~ s ~ ~~ ~~~~~ ~~~~~~ Ir~ ~t\~ ~ ~~ ~G ~. _1 ~~ ~ ~ ~ x ~1 ~tb ~ ~ ~ I ~~q~~ I ~ ~~~~ ~. "',~,~4~=~~: it I ~ M~M FNh ~b 'N L ~I ~I O~ J _ 4 N \` ~ ~ ~ ~1 I ~I F L ~.a~ N ~_, ~I I~ ~I P y~.oa_oc yt~f~,~f3~w---- ~ .~cB=i ~4,Zfd4~ ,s'oi=a ' ~8 A 9 i M,L £,9£ .S L N 1 ,,( L[ 'IA p~~ y ,g ~Y e .~B-1 .Fn1Yp 9'OLW J ~ ~a L U ~ ~ ma .y,~ ~n -n-w ae•us Mtcsraln a ~ N 3 lL9~l .9YZCIMP fi0l~l ~ '~ - --'~9t7LL 3dddS.CIN s~~s xos,~vx~ i -- .LL'Y~1 SY.Lf'.LNV R01°Y ~ .w'c-i srzclr-v .re-Y ~ , " ~ - ^~ _ ~L~d ~~ r7 r. J ~ 3 ~i ice( r C ~ ~ U m ri r~ ~v _ ~'~~ AUN9 ,84'864 3SZ,fZd~ ~ a ~/ L= vim. J I a .l 4! bq d~I a I -~~ - f ~~ i ~~ i _~ ~~~JJr vb1j~ I l `~xl I r e ATTACHMENT ~. 4 ~ .LOL i ~~t w ~'; I p J ~I I ~_~~; ~ ~~~ !~ p 1 lL I~ ss ~~ I ~ h 1 ;~ ~1 I L. ~.LO~ a ~- i~ RESOLUTION NO. - 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING PARCEL MAP 9717 AND TRACT IMPROVEMENT AGREEMENT, PARCEL MAP 9717, THE PROMENADE-PHASE 1 WHEREAS, Parcel Map 9717, 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, James Tong and Mei Fong Tong, husband and wife, as common property and the Whiting-Turner Contracting Company, have executed and filed with the City of Dublin a Tract Improvement Agreement to complete required subdivision improvements in accordance with the Conditions of Approval for the Tentative Map, and the approved improvement plans; and WHEREAS, said Improvement Agreement is secured by bonds furnished by Fidelity and Deposit Company of Maryland in the amount of $435,000, (Bond No. 8955026), conditioned upon faithful performance of said Agreement; and WHEREAS, said Improvement Agreement is secured by bonds furnished by Fidelity and Deposit Company of Maryland in the amount of $435,000 (Bond No. 8955026), conditioned upon payment for labor performed or material furnished under the terms of said Agreement; NOW, THEREFORE, BE IT RESOLVED that said agreement, attached as Exhibit "A.", and bonds are hereby approved. BE IT FURTHER RESOLVED that the Mayor is hereby authorized by the City Council to execute said Tract Improvement Agreement. BE IT FURTHER RESOLVED that Parcel Map 9717 is hereby approved, and that rights to the areas marked as Central Parkway, Dublin Boulevard, Grafton Street and Finnian Way, Public Access Easement (PAE), Emergency Vehicle Access Easement (EVAE) and Sidewalk Easement (SWE) 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 Emergency Vehicle Access Easement (EVAE) located at each end of Finnian Way previously dedicated on Parcel Map 7148, recorded in Book 257 of Maps, Pages 3-7, Alameda County Records are hereby abandoned; the Clerk of this City Council is hereby directed to transmit said Map to the County Recorder for filing. ATTACHMENT _~ ~- e~ PASSED, APPROVED AND ADOPTED this 6th day of October, 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor City C1erkG:\DEVELOPMENT, PRIVATE~Dublin Ranch\The Promenade, PM-9717\Reso PM.doc 2 ~I ~ -, CITY OF DUBLIN TRACT IMPROVEMENT AGREEMENT PARCEL MAP 9717, THE PROMENADE -PHASE 1 This agreement is made and entered into this day of , 2009, by and between the CITY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and James Tong and Mei Fong Tong and the Whiting-Turner Contracting Company. James Tong and Mei Fong Tong and the Whiting-Turner Contracting Company hereinafter are 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 Parcel Map 9717, desires to improve and dedicate those public improvements (hereafter "The Improvements") required by City of Dublin Community Development Director Resolution No. 09-10 adopted on September 17, 2009 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 for said development entitled Improvement Plans for Parcel Map 9717, The Promenade -Phase 1, prepared by MacKay &Somps and signed by the City Engineer; and Joint Trench Composite & Street Lighting Plans, Parcel Map 9717, The Promenade -Phase 1 prepared by HMH and now on file in the office of the 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; 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; and WHEREAS, CITY has determined that The Improvements are a public works subject to California prevailing wage requirements: 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 two years 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 Record Drawings of The Improvements, including any modifications made during construction. 2. Estimated Cost of Improvements. The estimated cost of constructing The Improvements required by this agreement as presented in the Bond Estimate for Parcel Map 9717, dated March 4, 2009 prepared by MacKay &Somps is agreed to be $435,000. Said amount includes costs and reasonable expenses and fees which may be incurred in enforcing the obligation secured. EXHIBIT A ~ 1 To the Resolution ~- n 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 therefore. 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. Prior to commencing construction of the improvements, DEVELOPER shall obtain or cause to be obtained and filed with the CITY, all insurance required under this paragraph 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 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 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: 2 ~~i~ 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 Coverages. 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; products and completed operations of the DEVELOPER; premises owned, occupied or used by the DEVELOPER; or automobiles owned, leased, hired or 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. 3 ~ ~- i~ 2) Workers' Compensation and Emslovers 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 DEVELOPER for the CITY. 3) 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. 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 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 workmanship and materials actually appear during the one-year guarantee period, and have been corrected, the guarantee period for the defected items shall automatically be extended for an additional year from the date of the completion of the repair to insure that such defects have actually been corrected. 4 ~ ~ i, 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 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 City Engineer and 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 DEVELOPER and replaced to the satisfaction of CITY without any expense to CITY in strict accordance with the improvement plans and specifications. 7. Agreement Assignment. 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 City Engineer 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 a`"~ 1 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 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. 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: Mark Lander, City Engineer City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: James Tong 4690 Chabot Drive, Suite 100 Pleasanton, CA 94588 Notices required to be given surety of DEVELOPER shall be addressed as follows: Developers Surety and Indemnity 17780 Fitch, Suite 200 Irvine, CA 92614 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. 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 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. 6 ~o of i-- 11. 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. 12. 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, and upon submittal of a warranty bond in the amount of 25% of the estimated cost of The Improvements, shall recommend acceptance of the work to the City Council and, upon such acceptance, shall notify DEVELOPER or his designated agents of such acceptance. 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, 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. 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 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. 15. Liability. A. DEVELOPER Primarily Liable. DEVELOPER 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. 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: 7 ~ off- n 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) Design Defect. If, in the opinion of the CITY, a design defect in the work of improvement becomes apparent during the course of construction, or within one (1) year following acceptance by the CITY of the improvements, and said design defect, in the opinion of the CITY, may substantially impair the public health and safety, DEVELOPER shall, upon order by the CITY, correct said design defect at his sole cost and expense, and the sureties under the Faithful Performance and Labor and Materials Bonds shall be liable to the CITY for the corrective work required. 4) Litigation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. 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. 16. Recitals. The foregoing Recitals are true and correct and are made a part hereof. [EXECUTION PAGE FOLLOWS] ~~~i~ 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: Tim Sbranti, Mayor Date: Date: -/~-1~~ Date:~/~~~ ATTEST: By: Caroline Soto, City Clerk Date: Approved as to Form: John Bakker, City Attorney WHI -TURNER T TING COMPANY Date: q ~ ~ G:\DEVELOPMENT, PRIVATE\Dublin Ranch\The Promenade, PM-9717\tract improvement agmt.doc 9 13 ~ Il RESOLUTION NO. - 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT RELATING TO PARCEL MAP 9717 WHEREAS, the City Council adopted Ordinance 06-00 on March 21, 2000, approving PA 98-069 for Area G of Dublin Ranch which established Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan for the PD Village Center/Neighborhood Commercial project area (hereinafter "The Promenade"); and WHEREAS, said Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan permitted Owner to retain ownership over the adjacent sidewalk along the public streets and required Owner to maintain the sidewalk; and WHEREAS, City of Dublin Community Development Director Resolution No. 09-10, adopted on September 17, 2009, approved the Tentative Parcel Map 9717 for The Promenade with a condition requiring Owner to enter into a Maintenance and Irrevocable License Agreement with the City for the use of the sidewalk area; and WHEREAS, the Owner has executed and filed with the City of Dublin a Maintenance and Irrevocable License Agreement Related to Parcel Map 9717, attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED that said Agreement is hereby approved. BE IT FURTHER RESOLVED that the City Manager is hereby authorized by the City Council to execute the Agreement. BE IT FURTHER RESOLVED that the Clerk of this City Council is hereby directed to transmit said Agreement to the County Recorder for filing. PASSED, APPROVED AND ADOPTED this 6th day of October, 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor G:~DEVELOPMENT, PRIVATbIDublin Ranch\The Promen ATTACHMENT 3 ~ i~ ~~- ~~ RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT RELATING TO PARCEL MAP 9717 THIS MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT (hereinafter "Agreement"), is made and entered into this th day of , 2009, by and between James Tong and Mei Fong Tong (hereinafter "Owner") and the City of Dublin, a Municipal Corporation (hereinafter "City"). RECITALS WHEREAS, the City Council adopted Ordinance 06-00 on March 21, 2000 approving PA 98-069 for Area G of Dublin Ranch which established Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan for the PD Village Center/Neighborhood Commercial project area (hereinafter "The Promenade"); and WHEREAS, said Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan permitted Owner to retain ownership over the adjacent sidewalk along the public streets and required Owner to maintain the sidewalk; and WHEREAS, City of Dublin Community Development Director Resolution No. 09-10 adopted on September 17, 2009 approved the Tentative Parcel Map 9717 for The Promenade with a condition requiring Owner to enter into a maintenance and irrevocable license Agreement with the City for the use of the sidewalk area;- and WHEREAS, Owner is agreeable to such use by City on the Licensed Areas and hereby grants a non-exclusive, irrevocable License for said use upon the following terms and conditions and agrees to maintain the sidewalk in exchange for being permitted to retain ownership of the Licensed Areas. NOW, THEREFORE, NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: EXHIBIT A . To the Resolution i5 ~f I~ 1. Permitted Use. Subject to the terms of this Agreement, City is granted an irrevocable, nonexclusive license ("License") permitting it to perform the following acts within the Licensed Areas: a. Public access -public access along a continuous pathway a minimum six feet-wide, maximum 2% cross slope, and a minimum ten-foot vertical clearance with public access from the adjacent street parking spaces to the pathway. b. Traffic Signs -installation and maintenance of traffic and parking restriction signs. c. Street Lights -installation and maintenance of street lights and appurtenances. d. Street Trees -installation and maintenance of street trees. e. Utilities -installation and maintenance of public utilities including fire hydrants. 2. Licensed Areas. The Licensed Areas are nonexclusive and shall be those depicted as Sidewalk Easement (SWE) on Parcel Map 9717 recorded , 2009, in Map Book , at Pages _ through ,Alameda County Records, and attached hereto as Exhibit A. 3. License Fee. This License shall not require payment of any rent or other charges to Owner by City for the use of the Licensed Areas for the purposes for which it is permitted. 4. Duration of License. This License shall be irrevocable and perpetual in duration unless the Parties mutually agree in writing to terminate it in accordance with Section 12 of this Agreement. In the event of such mutual termination, each Party agrees to execute and record such documents and to undertake such other actions as may be necessary to effectuate such termination. Upon such termination, all rights and obligations of the Parties hereunder pertaining to such terminated License shall also terminate. 5. Limitations a. This License is granted for the purpose of authorizing City to perform the actions described in Section 1 of this Agreement and to ensure public access to the Licensed Areas. b. Owner has retained all rights of use of the subject Licensed Areas including, but not limited to, the right to use for outdoor eating areas, street furniture, signs and landscaping so long as the use does not interfere with the City's Licensed uses described above. The Owner may install special poles on the City's traffic signs so long as the location, height and sign remain the same as approved by the City. 7. Maintenance by Owner. Owner shall maintain and repair, at its sole cost and expense, all improvements within the Licensed Area, except street lights, traffic signs and public utilities, in a safe manner consistent with approved plans, permits and to the reasonable satisfaction of the City. In the event that Owner fails to maintain Owner's improvements in a safe manner which results in an immediate hazard to the public health, safety, or welfare, City shall have the right after 24 hours notice to Owner to immediately repair, or cause to be repaired, any such hazard, 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. 2 i~ ~-~~ Provided that City, Dublin San Ramon Service District or a utility company has given Owner written notice 10 days prior to commencing its work, makes a reasonable effort to limit activities to non business hours and provided further that City, Dublin San Ramon Service District or a utility company takes all reasonable and necessary precautions to protect Owners improvements from damage during maintenance or repair, Owner will be responsible, at its own cost, to replace or repair any decorative pavement or landscape feature damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by City, Dublin San Ramon Service District or a utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Service District or a utility company. City will maintain at its sole cost all traffic signs and streetlights and the utility companies will maintain at their cost all of their improvements. 8. Property Taxes. Owner shall be solely responsible for any possessory interest taxes that may be imposed as a result of, or related to, this License. 9. Acknowledgment of Title. It is understood and agreed that City, by the acceptance of the License and by the use or occupancy of said Licensed Areas, has not acquired and shall not acquire hereafter any property rights or interest in or to said Licensed Areas through this License, and that City may use the Licensed Areas only as herein provided. Owner shall retain the right to sell the Licensed Area so long as the Licensed Areas remain subject to the terms of this Agreement. 10. Successors In Interest. In the event that Owner transfers part or all of the Licensed Areas to any successor in interest, all of the rights, duties and responsibilities contained herein shall likewise be transferred to said successor. In the event that Owner transfers the License and maintenance obligations contained herein to any Community Association or other entity created to govern the operation of the Licensed Areas (hereafter "Community Association") and the surrounding property, and prior to such transfer becoming effective, Owner shall furnish City with evidence that the recorded Declaration of Covenants, Conditions and Restrictions (or associated documents such as a Declaration of Annexation) include provisions requiring the Community Association created by said Declaration to abide by the obligations of this Agreement, that the costs of any maintenance, repair and construction required herein shall be paid by the imposition of an assessment on any property subject to the Declaration. The Declaration shall further provide that all the provisions described hereinabove may not be amended without prior written approval of the City. Until the Declaration becomes effective, Owner shall be responsible for ensuring compliance with the terms of this Agreement. 11. Notice. Any demand or notice which either party shall be required, or may desire to make upon or give to the other shall be in writing and shall be delivered personally upon the other or be sent by prepaid certified mail to the respective parties as follows: OWNER: James Tong and Mei Fong Tong 4690 Chabot Drive, Suite 100 Pleasanton, CA 94588 CITY: City Manager City of Dublin P.O. Box 520 Dublin, CA 94588 Either party may, from time to time, designate any other address for this purpose by written notice to the other party, given with 10 business day notice. 3 ~~ ~~ ~~ 12. Entire Agreement; Amendment. This Agreement constitutes the entire Agreement and understanding between the parties. Any amendment to this Agreement must be in writing and executed by both parties. 13. Severability. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extents permitted by law. 14 15. Governing Law. This Agreement shall be governed by the laws of the State of California. Recordation. The City shall record a copy of this Agreement against the Property within ten (10) days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates appearing below their respective authorized signatures. OWNER: James on a Mei Fong Tong, husban an _ i~e, as community property By: Date: I 1 ~'- Date: ~ l ~ - ~a ~ By: ~ G ei Fon To g CITY: City of Dublin Joni Pattillo City Manager, City of Dublin By: Date: ATTEST: Caroline Soto, City Clerk APPROVED AS TO FORM 1205076.1 John D. Bakker, City Attorney1205076.3 G:\DEVELOPMENT, PRIVATE\Dublin Ranch\The Promenade, PM-9717\License Agreement.DOC 4