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HomeMy WebLinkAbout4.3 Amend Development Agree Tract 4719 COo -_30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 26, 1984 SUBJECT: Amendment to City of Dublin - Tract Developer Agreement for Tract 4719 EXHIBITS ATTACHED: 1) Original tract developer agreement 2 ) Amendment to City of Dublin tract developer agreement 3 ) Location map RECOMMENDATION: Approve Amendment to City of Dublin - Tract Developer Agreement (Tract 4719 and authorize Mayor to sign on behalf of the City. FINANCIAL STATEMENT: None to City. DESCRIPTION: The original developer, Larry Lee, is in the process of selling this development to the Dublin Hills Partnership in four phases . The improvements guaranteed by the agreement are now nearly complete. This amendment to agreement replaces the portion of Larry Lee' s security with the new developers security for a portion of the project. This portion of Tract 4719 includes lots 61 through 94 and is the northern most cluster of lots east of Stagecoach Road. The replacement security consists of a " set-aside letter" issued by the Bank of America, NT & SA, in the amount of $316,200 . 00 which will reduce the existing First Interstate Mortgage Corporation ' set-aside letter" by an equal amount. ------------------------------------------------------------------ AlITEM NO. � COPIES TO: CITY OF DUBLIN TRACT DEVELOPER AGREEMENT This agreement is made and entered into this 12thday of December 1983, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and Larry C. V. Lee, hereinafter referred to as "DEVELOPER". W I T N E S S E T H WHEREAS, it has been determined by the City Council of the City of Dublin, State of California, that DEVELOPER, as a subdivider, desires to improve and dedicate Tract 4719 in accordance with the requirements and conditions set forth within the City of Dublin (Alameda County Planning Commission Tract 4719, 1486th Zoning Unit) adopted on July 20, 1981 the requirements of the Subdivision Map Act of;.the State of California and the Subdivision Ordinance of the City of Dublin; and those certain plans and specifications for said development approved by said City Council, 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; and N . WHEREAS, Developer intends to satisfactorily complete the required improvement within the time hereinafter specified, and City intends to accept Developer's offer(s) of dedication of said improvement(s) in consideration for Developer's satisfactory performance of the terms and conditions of this Agreement; NOW, ThEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: 1. Completion Time. Developer will commence the work required by this Agreement within a timely manner following the date on which City executes this Agreement. Developer shall complete said work not later than 18 months following said date of execution. Time is of the essence in this Agreement. Upon completion, Developer shall furnish City with a complete and reproducible set of final as- built plans, including any authorized modifications. 2. Security Furnished. Concurrently with the execution of this Agreement, Developer shall furnish City with a "Set Aside Letter" securing faithful performance and labor and materials. Such "Set Aside Letter" shall be in a form prescr ibed by City, and shall be issued by Fi=st Interstate Mortgage Corporation or such other major financial institution as may be approved by City. The "Set Aside Letter" stall become a part of this Agreement. The "Set Aside Letter" shall be conditioned upon the faithful performance of this Agreement and upon payment of all claims for labor and materials used or consumed in the performance of this Agreement. The "Set Aside Letter" shall be in the form attached as Exhibit "A" and shall be in the sum of $4,277,913.00. 3. Insurance Required. Concurrently with the execution of this Agreement or prior to the commencement of any construction, Developer/Contractor shall furnish City with evidence of insurance coverage as specified below. a. Worker's Compensation Insurance. Prior to 'the commencement of construction, statutory coverage as required to cover the full liability of Developer in accordance with the provisions of Division IV of the Labor Code of the State of California, and an employer's liability insurance coverage with a limit of not less than $100 ,000 per occ,—,-rence to cover any claims arising f:em employment not covered by worker's compensation laws. b. Comprehensive General Liability Insurance. Minimum limits of liability shall not be less than $1,000 ,000 per occurrence combined single limit bodily injury and property damage coverage ; any deductible provision snail not exceed $1,000 per claim, and each and every policy must contain a cross liability or severability of interests clause. Page 1 • C. Comprehensive Automobile Liability Insurance. Minimum limits of liability shall be not less than $1,000,000 per occurrence combined single limit bodily injury and property damage coverage; coverage shall include owned, non-owned, and hired vehicles, and each and every policy must contain a cross liability or severability of interests clause. d. Other Requirements. All insurance policies shall be issued by*a company legally licensed to transact business in the State of California, shall be issued at Developer's own cost and expense, shall be maintained by Developer in full force and effect during the life of this contract, and must have an "A.M. BEST" rating of B+, X or better. All certificates of insurance shall name the City and its officers, agents and employees as additional insureds, shall contain a provision that a written notice of cancellation or reduction in coverage shall be furnished the City (10) ten days in advance of the effective date thereof, and shall state that such coverage is primary to any other coverage of City. 4. Work Performance and Guarantee. Developer shall secure the services of those skilled in the trade, profession, or calling necessary to perform the work to be _ accomplished under the. terms of this contract, and shall guarantee and maintain the work for a period of one (1) year following the completion and acceptance thereof against any defective workmanship or defective materials furnished in the performance of this Agreement, and shall guarantee and maintain the work for a period of one (1) year following the completion and acceptance thereof against any defective workmanship or defective materials furnished in the performance of this contact, and any acceptance of the work by City will not operate as a release to Developer or Developer's bonds.T.en from the aforesaid guarantee. 5. Inspection of the Work. Developer shall guarantee free access to City through its 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 Developer and replaced to the satisfaction of City without any expense to City in strict accordance with the improvement plans and specifications. 6. Agreement Assignment. This Agreement shall not be assigned by Developer without the written consent of City. 7. Abandonment of Work. If the work to be done under this Agreement is abandoned, or if this Agreement is assigned by Developer without written consent of - City, or if City through its City Engineer determines that the said work or any part thereof is being unnecessarily or unreasonably delayed or that Developer is willfully violating any of the conditions or covenants of this Agreement or is executing this Agreement in bad faith, the City shall have the authority to order Developer to discontinue all work or any part thereof under this Agreement, and Developer shall cease to continue the work or such part thereof as city may designate, and City shall thereupon have the power to obtain by Agreement, purchase, rental or otherwise, all labor, equipment, and materials deemed necessary to complete the work and to use such materials as may be found upon the line of such work.' Developer and his sureties shall be liable for all expenses incurred by City for the acquisition and use of such labor, equipment, and materials. 8. 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 matter 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. 9. Safety Devices. Developer shall provide and maintain such guards, watc:rien, 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 10. Patent and Copyright Costs. In the event that said plans and speci- fications 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. 11. 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 financial institution from liability on any "Set Aside Letter" attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the financial institutions hereby waive the provisions of Section 2819 of the Civil Code of the State of California. 12. Liability. a. Developer Primarily Liable. Developer shall be responsible for any and all loss, accident, neglect, injury or damage to person, life or property which may be the result of or may be caused by construction, operations, or execution of this Agreement, and for which City might be held liable. Developer shall protect and indemnify the City of Dublin, the City Council, the City Engineer and/or any officer, agent or employee of the City, and save them harmless in every- way from all suits or actions at law for damage or injury to persons, life or property that may arise or be occasioned in any way because of construction opera- tions or execution of this Agreement. b. Design Defect. If, in the opinion of the City, a design defect in the work of improvement becomes apparent during the course of construction, or within one (1) year following acceptance by the City of the improvements, and said 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 financial institution under the "Set Aside Letter" shall be liable to the City for the corrective work reauired. c. 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 judgement is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and cou_Tt costs. _ 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, i i BY Mayor ATTEST: City Clerk DEVELOP R BY /�� L AMENDMENT TO CITY OF DUBLIN TRACT DEVELOPER AGREEMENT This amendment to agreement is made and entered into by and between the City of Dublin, a municipal corporation, hereinafter referred -to as "CITY" , Larry C.Y. Lee, hereinafter referred to as "ASSIGNOR-DEVELOPER" , and Dublin Hills Partnership, hereinafter referred -to as "ASSIGNEE-DEVELOPER" . Recitals 1. On December 12, 1983 , the City and the Assignor-Developer entered into that agreement entitled "City of Dublin Tract Developer Agreement" pursuant -to which Assignor-Developer agreed to complete improvements within Dublin Tract 4719 as required by the tentative map for such subdivision and -the 1486th Zoning Unit (such agreement hereinafter called -the "Tract Developer Agreement") . 2. Pursuant to paragraph 2 of the Tract Developer Agreement, Assignor-Developer furnished the City a Set Aside Letter issued by First Interstate Mortgage Corporation securing Assignor-Developer ' s obligations under -the Tract Developer Agreement. 3 . Assignor-Developer has agreed to sell to Assignee-Developer Lots 61-94 , inclusive, of Dublin Tract 4719 . 4 . Assignee-Developer has agreed to complete all on-site subdivision improvements required on Lots 61-94 , inclusive, of Tract 4719 as partial consideration for the purchase of such lots in discharge of Assignor-Developer' s obligation to the City in connection with such improvements. 5. In order to consummate the sale of Lots 61-94, inclusive, of Tract 4719, it is necessary that the City accept the "Set Aside Letter" issued by Bank of America NT&SA, the Assignee-Developer's lender, in partial release of the Set Aside Letter issued by First Interstate Mortgage Corporation, Assignor-Developer's lender. AGREEMENT NOW THEREFORE, in consideration of the mutual promises, con- ditions and covenants herein contained, the parties agree as follows: 1. Replacement Security. Assignee-Developer agrees that it shall furnish the City with a "Set Aside Letter" issued by Bank of America, NT&SA in an amount equal to $9 ,3.00 per lot for each of the 34 lots it is purchasing from Assignor-Developer, being Lots 61 through 94, 'inclusive, of Dublin Tract 4719, for a total amount of $316 , 200 securing faithful performance and labor and materials of and for all on-site subdivision improvements required within and upon such Lots 61 through 94 , inclusive. The foregoing "Set Aside Letter" to be issued by Bank of America, NT&SA, shall become a part !of -the Tract Developer Agreement and payment ahall be 'conditioned upon the faithful performance of the -Tract Developer Agreement to the extent that such agreement relates to the completion of on-site subdivision improvements on and within . Lots 61 through 94 , inclusive., of Dublin, Tract 4719, and upon payment of all claims -for labor and materialsiused or consummed in performing the foreging on-site improvement obligations on Lots 61 through 94 , inclusive, under the Tract Developer Agreement. The Set Aside Letter shall be in form as attached hereto as "Exhibit A' 2. Release of Security. Upon receipt of the "Set Aside Letter" from Assignee-Developer as referred to in paragraph 1 herein, the City shall reduce the amount of the security required under the Set Aside Letter issued by First Interstate Mortgage Corporation pursuant -2- to Paragraph 2 of the Tract Developer Agreement by an amount equal -to $ 9, 300per lot for Lots 61 through 94 , inclusive, of Dublin Tract 4719 , or $ 316, 200 in total , and further agrees that such Set Aside Letter issued by First Interstate Mortgage Corporation shall be released in such amount. 3 . Obligation To Complete Improvements. Assignee-Developer acknowledges and agrees that upon close of escrow for the purchase of Lots 61 through 94 , inclusive, of Dublin Tract 4719 from Assignor- Developer, it shall be and become responsible and obligated to complete all on-site subdivision improvements required under -the Tract Developer Agreement on or within Lots 61 through 94 , inclusive, of Dublin Tract 4719 . The City hereby consents to the foregoing assumption of obliga- tions. 4 . All Other Provisions To Remain In Effect. Except as specifically modified by this Agreement, all provisions of the Tract Developer Agreement, including but not limited to -the insurance require- ments under paragraph 3 , shall remain in full force and effect and are hereby confirmed. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at -the places and upon -the dates set forth opposite their respective signatures below. CITY OF DUBLIN Executed at Dublin, California on 1984 By Mayor ATTEST Executed at Dublin, California on 1984 City Clerk -3- ASSIGNOR-DEVELOPER Executed at Oakland, California on November 20, 1984 By Larry g . `Lee ASSIGNEE-DEVELOPER Dublin Hills Partnership By Parish Land & Cattle Company, General Partner Executed at San Jose, California on November 20, 1984 E. J: Parish, President By I ch In . , eneral Partner Executed at Sunnyvale, California on November 20, 1984 a By, y Mi ha 1 W. Vall y, President -4- Bank of America Concord Real Estate Developer Center I November 19, 1984 Mr. Lee Thompson Dublin City Engineer ! P.O. Box 2340 Dublin, CA 94568 RE: Subdivision Name: Dublin Hills - - — -- - 34 Lots #61 through 94 inclusive Tract 4719 Alameda County Dublin, CA Principal : Dublin Hills Partnership Obligee: City of Dublin Gentlemen: We have agreed to make a land development loan to Dublin Hills Partnership subject to certain conditions for the installation of sewer line improvements, streets, streetlighting and traffic control , erosion and sediment control , waterline improvements and fire protection in the subject subdivision, in the City of Dublin, County of Alameda, State of California. We hereby agree that an amount of $316,200 to pay the cost of the abovementioned improvements is to be earmarked in a separate account and will be used to pay the cost of the said improvements. These payments will be disbursed to the borrower on the borrower's order, at the times when the required work has reached the stages of completion as required by the schedule of progress payments attached hereto. We have no obligation with respect to insuring (1 ) proper completion of such improvments, including without limitation workmanship and timeliness, or (2) that the earmarked amount is sufficient to complete the improvements. In the event that there is a default by the Principal in its obligation to the City of Dublin, all funds remaining in said separate account, if any, at the time of receipt at this branch of your written notification of the default, shall be available to you, at the same times and under the same conditions as they would have been paid Bank of America National Trust and Savings Association 2020 Willow Pass Road Concord, California 94520 �.r a November 19, 1984 City of Dublin Page Two --- to the borrower had the work been performed by the borrower, to complete with diligence and pay for the cost of completing the abovementioned improvements. Our obligation to disburse funds hereunder is subject to stop notices, tax assessments or levy, attachment, executions, or other legal processes. We shall be fully protected in making payments in reliance on work completion certificates from contractors and are not responsible for proper use of funds disbursed. Funds in said separate account are not subject to offset by us, and you shall have no obligation to repay funds disbursed as described in this letter. We shall have no obligation to disburse from said separate account after 180 days have elapsed from the date the aforementioned improvements are accepted by the applicable approving authority. This is an irrevocable commitment of funds not subject to recall , but is contingent upon recordation of our deed of trust securing the above loan. Bank of America, NT&SA By: 10-'J u F. 'Qew�S oOg as R. Drewes Assistant Vice President TO BANK: The borrower of the land development loan to complete the above subdivision hereby agrees that any sum paid by you in accordance . with your above undertaking shall be deemed to be an advance to the borrower under the land development loan . DUBLIN HILLS PARTNERSHIP By Parish Land & Cattle Company, General and Co-Managing Partner By: _ Date: Edwin J. Parish, President By Ikotech, Inc. , General and Co-Managing Partner By: Date: Michael W. Valley, President BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION SUBDIVISION IMPROVEMENTS CONSTRUCTION PROGRESS REPORT Firm Name: -Dubl in Hi l Is Partnership_ ___ _ Branch: Concord R.E. Dev. Center. No: 1.337 Date: November 14. 1984 Tract No.: 4219_ City: —D1bl in County: Alameda State: Cal i forni a "'I I I'r,•/,nr,• /i,rur in .t rnl,ios: Cotu+lrurliun progrrss insperliun repurl for parlidl pnynteW eutiering the insiolloliun of suhrlivisioo improt,etnews. TOTAL UNIT TOTAL. PAY- REPORTED PREVIOUSLY THIS PERIOD TOTAL TO DATE MENT -- — ITEMS QUANTITY COST COST $ N0, Quonlily $ Amount (a) Quantity $ Amount (b) Quantity $ Amount (a&b Fine Grade ____78.1.600... _ l..68._ _131204.80 2'/2" AC_&_8".. - 4"_ AB__curb_.& gutt r-..___6-,260.. ._.._. -,323.-_ 2r02 - - "'.AB_-siriewal k-&_ r-i veway-10,.79 -_2.4.2__-2,612x15——_— — TOTAL-GRADING..&- T-REETS----- _ .__.-_-___7_4,504„_9-7_ --- — 8" VCP 1. .865 19.35_ 36 087.75 ' 4" VCP_Laterals _ 13,532.00 _ Standard MaChQ�-�s._ 10_ . .1860 10,6600 00—_ TOTAL_-SANITARY-SE ERS-___ __.-. Curb_.&-Gutter_.___...... .__-.3_,-120_._.— 4" Sidewalk. -___.__ ._.._.7.rH_4._--. ._J_42_ —1 ,921.20— 6" Driveway 3,055 1 .75 5,346.25 Indicap_Ramps..._ ._ __—__._-9.—.-_ ._.240__0 ._ 1 ,920.00 — 3pecial Inlets 2_ 1,090_00 2L180,00_ TOTAL CONCRETE 37,864. 15 8 AC?-- - - -._. ._..1,8.68_. ...-- -22. 12 41 '32'0. 16 _ .._. Fire Hydrants 5 ?,C§7.0 10 285,00 Air.-Valves ............_. .- — - 2 -- - _578._ 1156.00- — -- TOTAL._WATER . _.._. .. _.. .._-- ._._ . -----_-_--- 5276-1 16_ —_--.- -------_-- Electrol iers 8 _ 1,320.CO _ 10,560:00 'T�enching w/Sand Ba kfi11 2,400 1 11.001 26,400,00 TOTAL S AMOUNT Page 2 ' SUBDIVISION IMPROVEMENTS CONSTRUCTION PROGRESS REPORT Firm Name: .D.ubli.n_li.Llls._Partner.shi Branch: .Concord R.E. Dev. Center. No: 1337 Date: November 14, 1984 Tract No.: 4719 City: Dubl in County: Alameda State: Cal ifornia ._ \r,11': 1rr/rrn lr,rur irr isiorr ruprs: ( orrsrur / ti pr b/ir iurprur rurr,rl... PAY- REPORTED PREVIOUSLY THIS PERIOD TOTAL TO DATE TOTAL UNIT TOTAL. MENT ----- ITEMS QUANTITY COST COST $ N0. 'Quantity $ Amount (a) Quantity $ Amount (b) Quantity S Amount (o&b) TOTAL LIGHTING 36 960.00 Toe of Slope Gutt r 1 ,250 _ 7_98_ __ 9975.00 It Basin _ _ _ _ 2____ _,970.00 19,940.00 _ _�elocitControl_ ike 4 ^_ 548.00 _Diverson Dikes ____.__?.....__. ...M .---600.00 TOTAL..ER06.ION.&.SEDINEI _ CONTROL _.__-_-- 31,063.00 --•__--— Traffic Si-gn-,___ 10_ _ 147.00 1 :470.00- Street-Sign _ _ 4 179.00 716.00— — Pavement Striping —_1 ,200 _ .45 _ 540.00 TOTAL TRAFFIC CONTROL ---------.--•— -•___-- _ 2,726.00 Monuments --- -- -- 13---- -100.00 1300.00 ----- --- — Berm & Walk 245 _— _ 12.32 3,018.40_— . ..--------- - - TOTAL MISCELLANEOUS 4,318.40_— Contingency GRAND TOTAL . 316,200.0.0 - ---- TOTAL S AMOUNT Bird. PROJECT SITE �5 ` O , CD''o CL,ni� 1 onro G o C' y Z � j v rvY CL o� g y T�s PROJECT LOCATION MAP NO SCALE i D � Ao � DE D v p r i m 0 \1 V 45 y �SaA � fr - a � .� titi ti �• �b 4 - ti _ V i w I I` I